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EXHIBIT 10.30
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REGISTRATION RIGHTS AGREEMENT
BY AND AMONG
BAYARD DRILLING TECHNOLOGIES, INC.,
DLB OIL AND GAS, INC.
AND
XXXXXXXXX, XXXXXX & XXXXXXXX SECURITIES CORPORATION
OCTOBER 16, 1997
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REGISTRATION RIGHTS AGREEMENT
BAYARD DRILLING TECHNOLOGIES, INC.
This REGISTRATION RIGHTS AGREEMENT (this "Agreement"), dated
as of October 16, 1997, is made by and among Bayard Drilling Technologies,
Inc., a Delaware corporation (the "Company"), DLB Oil and Gas, Inc., an
Oklahoma corporation ("DLB"), and Xxxxxxxxx, Xxxxxx & Xxxxxxxx Securities
Corporation ("DLJ").
WITNESSETH:
WHEREAS, DLB, the Company, Bonray Acquisition Corp. ("Newco")
and Bonray Drilling Corporation ("Bonray") have entered into that certain
Agreement and Plan of Merger, dated as of October 9, 1997 (the "Merger
Agreement");
WHEREAS, upon the terms and conditions set forth in the Merger
Agreement, (i) Newco will be merged with and into Bonray and (ii) the
outstanding capital stock of Bonray will be converted into an aggregate of
3,015,000 shares (the "Acquired Shares") of common stock, par value $0.01 per
share ("Common Stock"), of the Company, all of which shares will initially be
issued to and held by DLB (as the former holder of all of the outstanding
capital stock of Bonray);
WHEREAS, immediately after the consummation of the
transactions contemplated by the Merger Agreement, DLB intends to transfer
60,000 of the Acquired Shares (the "DLJ Shares") to DLJ; and
WHEREAS, the Merger Agreement provides that the Company will
enter into this Agreement in order to grant certain registration rights to DLB
and DLJ;
NOW, THEREFORE, in consideration of the foregoing and the
mutual covenants and agreements set forth herein, the mutual benefits to be
gained by the performance thereof and other good and valuable consideration,
the receipt and sufficiency of which are hereby acknowledged and accepted, the
parties hereto hereby agree as follows:
SECTION 1. Definitions. For purposes of this Agreement,
the terms set forth below shall have the following respective meanings:
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"Acquired Shares" has the meaning set forth in the Recitals
hereto.
"Bonray" has the meaning set forth in the Recitals hereto.
"Commission" means the Securities and Exchange Commission.
"Common Stock" has the meaning set forth in the Recitals
hereto.
"Company" has the meaning set forth in the Preamble hereto.
"Demand Registration" has the meaning set forth in Section
3(b) hereof.
"Demand Registration Request" has the meaning set forth in
Section 3(a) hereof.
"Demand Registration Request Initiator" has the meaning set
forth in Section 3(a) hereof.
"Distributing Party" means DLB or, if applicable, the DLB
Successor.
"DLB Distribution" means (i) the distribution by the
Distributing Party of the Registrable Shares held by it to the DLB Shareholders
(whether in the form of a dividend payable on shares of capital stock of the
Distributing Party or in any other form not involving the payment of any cash
consideration or any other consideration whatsoever, other than (if applicable)
the surrender, exchange or cancellation of shares of capital stock of the
Distributing Party) or (ii) any other transaction resulting directly or
indirectly in the distribution or transfer of the Registrable Shares to the DLB
Shareholders which has been approved by the Company, acting through its Board
of Directors (it being understood that the Company shall consider in good faith
the approval of any distribution or transfer referred to in clause (ii) above
and the Company, DLB and the Distributing Party shall endeavor in good faith to
structure such distribution or transfer in such a way as to meet the business
objectives of each of the parties).
"Distribution Registration Effective Date" has the meaning set
forth in Section 2(b) hereof.
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"Distribution Registration Initiator" has the meaning set
forth in Section 2(a) hereof.
"Distribution Registration Notice" has the meaning set forth
in Section 2(b) hereof.
"Distribution Registration Period" has the meaning set forth
in Section 2(b) hereof.
"Distribution Registration Statement" has the meaning set
forth in Section 2(a) hereof.
"DLB" has the meaning set forth in the Preamble hereto.
"DLB Group" means the holders of 51% or more of the
Registrable Shares owned of record by the group comprised of DLB, DLJ and all
DLB Permitted Transferees.
"DLB Permitted Transferee" means (i) Xxxxxxx Xxxxxxx, (ii)
Xxxx Xxxxxxx or (iii) Xxxxxxx X. Xxxxxxxx or (iv) any other Person to whom DLB
or a DLB Permitted Transferee has transferred Acquired Shares which represent
51% or more of the Acquired Shares, so long as such Person identified in any of
clauses (i) through (iv) executes a counterpart to this Agreement, agreeing to
be bound by the terms hereof.
"DLB Shareholders" means (i) if the Distributing Party is DLB,
the shareholders of DLB or (ii) if the Distributing Party is the DLB Successor,
the Persons who were shareholders of DLB immediately prior to the merger,
transfer of assets or other transaction in which the DLB Successor acquired 51%
or more of the Registrable Shares.
"DLB Successor" means any Person who is a successor to DLB
(whether as result of a merger, transfer of assets or any other transaction)
and, as such, acquires 51% or more of the Registrable Shares, so long as (i)
the only Persons who have any right to receive a distribution of such
Registrable Shares from such successor or have any other beneficial interest in
such Registrable Shares are the DLB Shareholders and (ii) such successor
executes a counterpart to this Agreement, agreeing to be bound by the terms
hereof.
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"DLJ" has the meaning set forth in the Preamble hereto.
"DLJ Shares" has the meaning set forth in the Recitals hereto.
"Holdback Agreements" has the meaning set forth in Section 5
hereof.
"Included Securities" has the meaning set forth in Section 7
hereof.
"Indemnified Party" has the meaning set forth in Section 8(c)
hereof.
"IPO Date" means the date of consummation of a Qualified IPO.
"Issuer Indemnified Party" has the meaning set forth in
Section 8(c) hereof.
"Merger Agreement" has the meaning set forth in the Recitals
hereto.
"Participating Holders" has the meaning set forth in Section 7
hereof.
"Person" means an individual, partnership, corporation,
limited liability company, association, joint stock company, trust, joint
venture, unincorporated organization or governmental entity or any department,
agency or political subdivision thereof.
"Piggyback Registration" has the meaning set forth in Section
3(a) hereof.
"Qualified IPO" means (i) one or more underwritten public
offerings of Common Stock pursuant to one or more effective registration
statements filed under the Securities Act, resulting in an aggregate of at
least $25 million of net proceeds, after deducting underwriting discounts and
commission and other expenses, to the Company or (ii) any merger, consolidation
or other business combination transaction that results in any equity securities
of the Company being registered under Section 12 of the Securities Exchange
Act.
"Registrable Shares" means the Acquired Shares and any
securities of the Company issued or issuable with respect to any Acquired
Shares by way of stock dividend or stock split or in connection with a
combination or subdivision of
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shares, recapitalization, reorganization or otherwise; provided, however, that
Registrable Shares shall not include any shares (i) the sale of which has been
registered pursuant to a registration statement filed under the Securities Act
which has been declared effective or (ii) which may be otherwise transferred
without restriction (including volume restrictions) under Rule 144 or any
similar successor rule or provision then in force.
"Registration Expenses" has the meaning set forth in Section 7
hereto.
"Requesting Holders" has the meaning set forth in Section 3(a)
hereto.
"Securities Act" means the Securities Act of 1933, as amended,
or any successor federal statute, and the rules and regulations promulgated
thereunder, all as the same may be in effect from time to time.
"Securities Exchange Act" means the Securities Exchange Act of
1934, as amended, or any successor federal statute, and the rules and
regulations promulgated thereunder, all as the same may be in effect from time
to time.
"Selling Holder" means a holder who is selling Registrable
Shares which are registered pursuant to the Securities Act as contemplated by
this Agreement.
"Selling Indemnified Party" has the meaning set forth in
Section 7(a) hereto.
"Share Value" means (i) prior to a Qualified IPO, the book
value per share of Common Stock, as determined by dividing Total Equity as of
the date of the most recent quarterly or year-end financial statements of the
Company by the total number of shares of Common Stock issued and outstanding as
of the date of such financial statements, assuming the exercise of all options,
rights, warrants and other securities convertible into or exchangeable or
exercisable for shares of Common Stock and (ii) after a Qualified IPO, the
average market price per share of Common Stock on the principal national
securities exchange or quotation system on which the Common Stock is then
traded or quoted for the ten day trading period ending on the day prior to the
determination date.
"Total Equity" means the sum of the par value, capital surplus
and retained earnings attributable to the Common Stock, other than shares of
Common Stock
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held in treasury of the Company, as determined in accordance with United States
generally accepted accounting principles plus the paid in value of any
preferred stock or other security that is convertible into Common Stock.
SECTION 2. Distribution Registration.
(a) Request for Distribution Registration.
Subject to the limitations set forth in this Section 2, at any time DLB, the
DLB Successor, or any of the Persons identified in clause (i), (ii) or (iii) of
the definition of the term "DLB Permitted Transferee" on behalf of the DLB
Successor (the "Distribution Registration Initiator"), shall have the right to
require the Company to file with the Commission (i) a "shelf" registration
statement on an appropriate form filed pursuant to Rule 415 under the
Securities Act or (ii) a registration statement on an appropriate form (not
filed pursuant to Rule 415 under the Securities Act) which is acceptable to the
Company and the Distribution Registration Initiator (the "Distribution
Registration Statement") solely for the purposes of registering the Registrable
Shares held by the Distributing Party (other than any Registrable Shares held
by DLJ) in connection with the Distribution.
(b) Registration by the Company. If the
Distribution Registration Initiator gives written notice (the "Distribution
Registration Notice") to the Company of the exercise of the registration rights
granted pursuant to this Section 2, the Company shall (i) file the Distribution
Registration Statement with the Commission within 45 days of the date of
receipt of the Distribution Registration Notice, (ii) use its reasonable best
efforts to cause the Distribution Registration Statement to be declared
effective under the Securities Act as promptly as practicable after the filing
thereof and (iii) use its reasonable best efforts to keep the Distribution
Registration Statement effective for a period (the "Distribution Registration
Period") terminating on the date which is the earlier of (x) the date which is
four months after the date on which the Distribution Registration Statement is
declared effective (the "Distribution Registration Effective Date") or (y) the
date on which the Distribution has been completed; provided, however, that in
the event it is necessary for the Company to file a post-effective amendment to
the Distribution Registration Statement during the Distribution Registration
Period in order to comply with applicable provisions of the Securities Act, it
shall not constitute a violation of this paragraph (b) if, as a result of the
filing of such amendment, the Distribution Registration Statement is not
available to effect the Distribution until such time as such amendment is
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declared effective by the Commission (it being understood that the Company
shall use its reasonable best efforts to cause such amendment to be declared
effective under the Securities Act as promptly as practicable after the filing
thereof).
(c) Plan of Distribution. The Company further
agrees that, at the request of Demand Registration Initiator, it will
supplement or amend the Distribution Registration Statement as promptly as
reasonably practicable in order to update from time to time any information
with respect to the manner in which the Distribution will be effected by the
Distributing Party.
(d) Distribution Registration Limitations. The
registration rights set forth in this Section 2 may be exercised only in
accordance with the following limitations:
(i) The Company shall not be obligated
to effect any registration pursuant to this Section 2 if the
Company's counsel delivers an opinion to the Distributing
Party, which opinion is reasonably satisfactory to counsel for
the Distributing Party to the effect that the Distribution may
be effected as planned by the Distributing Party without
registration thereof.
(ii) If (A) in the good faith
judgment of the Board of Directors of the Company, a
registration pursuant to this Section 2 would be seriously
detrimental to the Company (or any proposed acquisition or
disposition of assets or properties) and the Board of
Directors of the Company concludes, as a result, that it is
essential to defer the filing of the Distribution Registration
Statement at such time, and (B) the Company shall furnish to
the Distributing Party a certificate signed by the President
of the Company stating that, in the good faith judgment of the
Board of Directors of the Company, it would be seriously
detrimental to the Company for the Distribution Registration
Statement to be filed in the near future and that it is,
therefore, essential to defer the filing of such registration
statement, then the Company shall have the right to defer such
filing for the period during which such disclosure would be
seriously detrimental; provided, however, that the Company may
not exercise its right to defer the filing of the Distribution
Registration Statement in accordance with this subparagraph
(ii) until the expiration of the 120-day period after the IPO
Date and, after the expiration of such period, may
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not defer the filing of such registration statement for more
than 60 days (in the case of a deferral during the first year
after the IPO Date) or 120 days (in the case of a deferral at
any time after the first anniversary of the IPO Date) after
receipt of the Distribution Registration Notice; and provided
further, that the Company shall give written notice to the
Distributing Party immediately after the reason for deferring
the filing of the registration statement has ceased to exist.
(iii) The Distribution
Registration Notice shall not be delivered by the Distribution
Registration Initiator prior to the IPO Date.
(iv) In no event shall the
Company be required to file more than one Distribution
Registration Statement pursuant to this Section 2.
SECTION 3. Demand Registration.
(a) Requests for Registration. Subject to the
limitations set forth in this Section 3, at any time the DLB Group may request
the Company to register under the Securities Act, on the number of occasions
specified in clause (iv) of Section 3(c), all or any part of the Registrable
Shares held by the DLB Group (a "Demand Registration Request"). Within 10 days
of receipt by the Company of a Demand Registration Request, the Company shall
give written notice of such request to all other holders of Registrable Shares.
Such holders shall have the right to join the Demand Registration Request by
delivery of written notice to the Company of such intention, which notice shall
include the number of Registrable Shares that each such additional holder
intends to have the Company register in response thereto. The Person or group
of Persons making the Demand Registration Request shall be referred to herein
as the "Demand Registration Request Initiator." All holders of Registrable
Shares that request to participate in any such demand registration shall be
referred to herein as "Requesting Holders."
(b) Registration by the Company. Unless the
Company has the right to refuse registration pursuant to Section 3(c) hereof,
the Company shall file a registration statement under the Securities Act
covering the Registrable Shares which are the subject of any Demand
Registration Request as soon as practicable after receipt by the Company of any
such Demand Registration Request (each,
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a "Demand Registration"); provided, however, that if (i) in the good faith
judgment of the Board of Directors of the Company, such registration would be
seriously detrimental to the Company (or any proposed acquisition or
disposition of assets or properties) and the Board of Directors of the Company
concludes, as a result, that it is essential to defer the filing of such
registration statement at such time, and (ii) the Company shall furnish all
Requesting Holders a certificate signed by the President of the Company stating
that, in the good faith judgment of the Board of Directors of the Company, it
would be seriously detrimental to the Company for such registration statement
to be filed in the near future and that it is, therefore, essential to defer
the filing of such registration statement, then the Company shall have the
right to defer such filing for the period during which such disclosure would be
seriously detrimental; provided, however, that the Company may not defer the
filing of a registration statement for a period of more than 120 days after
receipt of the Demand Registration Request of the Requesting Holders, and,
provided further, that the Company shall not defer its obligation in this
manner more than once in any twelve-month period and shall give written notice
to the Requesting Holders immediately after the reason for deferring the filing
of the registration statement has ceased to exist. The Company shall not be
required to register any Registrable Shares during any period in which it has
exercised its deferral right as aforesaid.
(c) Demand Registration Limitations. The demand
registration rights set forth in this Section 3 may be exercised only in
accordance with the following limitations:
(i) The DLB Group shall have the right
to exercise demand registration rights under this Section 3
only after the earlier to occur of (x) 180 days after the IPO
Date or (y) the first anniversary of the date of this
Agreement.
(ii) The holders of Registrable Shares
shall not have any right to exercise demand registration
rights under this Section 3 at any time after the third
anniversary of the IPO Date.
(iii) The Company shall not be required
to make any Demand Registrations pursuant to this Section 3
unless the aggregate Share Value of all Registrable Shares
proposed to be registered in connection therewith shall equal
or exceed $20 million.
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(iv) The DLB Group shall have the right
to require the Company to file up to two Demand Registrations
with the Commission; provided, however, that the Company shall
be required to effect not more than one Demand Registration
pursuant to this clause (iv) unless and until it is qualified
to register the Registrable Shares on Form S-3 promulgated
under the Securities Act.
(v) Provided the Company is actively
employing in good faith all reasonable efforts to cause such
registration statements to become effective, the Company shall
not be required to make any Demand Registration pursuant to
this Section 3 during the period ending 90 days after the
effective date of any registration under the Securities Act by
the Company of shares of Common Stock or other equity
securities, other than in connection with an employee benefit
plan, dividend reinvestment plan or merger, consolidation or
other business combination.
(d) Priority on Demand Registrations. The
registration statement filed pursuant to the Demand Registration Request of the
Requesting Holders may, subject to the limitations set forth below, include
other securities of the Company, with respect to which registration rights have
been granted, and may include securities of the Company being sold for the
account of the Company. If a Demand Registration is an underwritten public
offering and the managing underwriters advise the Company in writing that in
their opinion the number of Registrable Shares and other securities requested
to be included exceeds the number of Registrable Shares and other securities
which can be sold in such offering, the Company shall include in such
registration, prior to the inclusion of any securities to be sold by the
Company or any other securities which are not Registrable Shares, (i) first,
the number of Registrable Shares requested to be included by the Demand
Registration Request Initiator and (ii) second, the number of Registrable
Shares requested to be included, pro rata among the Requesting Holders other
than the Demand Registration Request Initiator on the basis of the number of
Registrable Shares owned by such Requesting Holders.
(e) Underwriters. The managing underwriter or
underwriters for any Demand Registration shall be selected by the holders of a
majority of the Registrable Shares to be included in such Demand Registration,
which managing underwriter or underwriters shall be reasonably acceptable to
the Company.
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SECTION 4. Piggyback Registration.
(a) Right to Piggyback. If at any time the
Company proposes to file a registration statement under the Securities Act with
respect to any underwritten offering of any securities of the Company, other
than (i) a registration statement on Form S-4 or S-8 (or any substitute form
for comparable purposes that may be adopted by the Commission), (ii) a
registration statement filed in connection with an exchange offer or an
offering of securities solely to the Company's existing security holders or
(iii) the Distribution Registration Statement, the Company shall in each case
give written notice (a "Piggyback Registration Notice") of such proposed filing
of such registration statement (a "Piggyback Registration") to all holders of
Registrable Shares as soon as practicable, but in no event less than 20 days
before the anticipated filing date, and shall, subject to Section 4(b) hereof,
include in such registration statement all Registrable Shares with respect to
which the Company has received written requests for inclusion therein within 15
days after the Piggyback Registration Notice is received by all such holders.
(b) Priority in Piggyback Registrations. If the
managing underwriters advise the Company in writing that in their opinion the
number of securities requested to be included in a registration exceeds the
number which can be sold in such offering, the Company shall include in such
registration (i) first, the securities of the Company proposed to be registered
as described in the Piggyback Registration Notice and (ii) second, the
Registrable Shares requested to be included in such registration, pro rata
among the holders of all such Registrable Shares and other securities requested
to be included on the basis of the then number of Registrable Shares and other
securities requested to be included by each such holder.
(c) Right to Withdraw. Notwithstanding anything
to the contrary, neither the delivery of a Piggyback Registration Notice by the
Company nor of the request by the holder of Registrable Shares shall in any way
obligate the Company to file, or the holder of Registrable Shares to have such
shares included in, a registration statement under this Section 4 and,
notwithstanding such filing, the Company may, at any time prior to the
effective date thereof, in its sole discretion, determine not to offer the
securities to which the registration statement relates without liability to any
of the holders of the Registrable Shares,
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and any holder may determine not to include its Registrable Shares therein
without liability.
(d) Selection of Underwriters. The managing
underwriter or underwriters for any Piggyback Registration shall be selected by
the Company, by action of the Board of Directors.
SECTION 5. Holdback Agreements. In the event that
Registrable Shares are registered by the Company pursuant to Section 3 or 4
hereof, the holders of any such Registrable Shares shall enter into such
agreements, including underwriting agreements and lock-up agreements, as the
managing underwriter of any underwritten public offering registered under the
Securities Act shall reasonably request (collectively, "Holdback Agreements");
provided, however, that (i) with respect to an initial public offering of
shares of Common Stock, such Holdback Agreements shall not exceed a period of
14 calendar days prior to, and 180 calendar days after, the effective date of
such registration, and (ii) with respect to any subsequent registrations, such
Holdback Agreements shall not exceed a period of 14 calendar days prior to, and
120 calendar days after, the effective date of such registration.
SECTION 6. Registration Procedures. Whenever the holders
of Registrable Shares have requested that any Registrable Shares be registered
pursuant to this Agreement, the Company shall use its best efforts to effect
the registration and the sale of such Registrable Shares in accordance with the
intended method of disposition thereof, and pursuant thereto the Company shall
as expeditiously as possible:
(a) prepare and file with the Commission a
registration statement with respect to such Registrable Shares and use its best
efforts to cause such registration statement to become and remain effective for
such period as may be reasonably necessary to effect the sale of such
securities, in any case not to exceed six months (or, in the case of a
Distribution Registration Statement, for such period as is specified in Section
2 hereof);
(b) prepare and file with the Commission such
amendments and supplements to such registration statement and the prospectus
used in connection therewith as may be necessary to keep such registration
statement effective for a period of not more than six months (or, in the case
of a Distribution Registration Statement, for such period as is specified in
Section 2 hereof) and comply with the provisions of the Securities Act with
respect to the disposition of all securities
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covered by such registration statement during such period in accordance with
the intended methods of disposition by the Selling Holders set forth in such
registration statement;
(c) furnish, without charge, to each Selling
Holder and the underwriters of the securities being registered such number of
copies of such registration statement, each amendment and supplement thereto,
in each case including all exhibits, the prospectus included in such
registration statement, including each preliminary prospectus, and such other
documents as each such Selling Holder or underwriters may reasonably request in
order to facilitate the disposition of the Registrable Shares owned by each
such Selling Holder or the sale of such securities by such underwriters;
(d) use its best efforts to register or qualify
such Registrable Shares under the securities or blue sky laws of such
jurisdictions as each Selling Holder shall reasonably request and do any and
all other acts and things which may be reasonably necessary or advisable to
enable each such Selling Holder to consummate the disposition in such
jurisdictions of the Registrable Shares owned by such Selling Holder, provided,
however, that the Company shall not be required to (i) qualify generally to do
business in any jurisdiction where it would not otherwise be required to
qualify but for this Section 6(d), (ii) subject itself to taxation in any such
jurisdiction or (iii) consent to general service of process in any such
jurisdiction;
(e) (i) cause all such Registrable Shares covered
by such registration statement to be listed on the principal securities
exchange on which shares of Common Stock are then listed, if any, if the
listing of such Registrable Shares is then permitted under the rules of such
exchange, or (ii) if shares of Common Stock are not then so listed, cause all
such Registrable Shares to be listed on a national securities exchange or,
failing that, secure designation of all such Registrable Shares as a Nasdaq
Stock Market "national market system security" within the meaning of Rule
11Aa2-1 of the Commission or, failing that, secure Nasdaq Stock Market
authorization for such shares and, without limiting the generality of the
foregoing, take all actions that may be required by the Company as the issuer
of such Registrable Shares in order to facilitate the managing underwriter's
arranging for the registration of at least two market makers as such with
respect to such shares with the National Association of Securities Dealers,
Inc.;
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(f) provide and cause to be maintained a transfer
agent and registrar for all such Registrable Shares not later than the
effective date of such registration statement;
(g) enter into such customary agreements,
including underwriting agreements in customary form, and take all such other
actions as the underwriters, if any, reasonably request in order to expedite or
facilitate the disposition of such Registrable Shares;
(h) upon receipt of such confidentiality
agreements as the Company may reasonably request, make reasonably available for
inspection by the Selling Holders, any underwriter participating in any
disposition pursuant to such registration statement, and any attorney,
accountant or other agent retained by any such Selling Holders or underwriter,
all financial and other records, pertinent corporate documents and properties
of the Company, and cause the Company's officers, directors, employees and
independent accountants to supply all information reasonably requested by any
such Selling Holder, underwriter, attorney, accountant or agent in connection
with such registration statement;
(i) promptly notify each Selling Holder, (i) of
the time when the registration statement, any pre-effective amendment, the
prospectus or any prospectus supplement related thereto or post-effective
amendment to the registration statement has been filed and, with respect to the
registration statement or any post-effective amendment, when the same has
become effective and (ii) of the receipt by the Company of any notification
with respect to the suspension of the qualification of any Registrable Shares
for sale under the securities or blue sky laws of any jurisdiction or the
initiation of any proceeding for such purpose;
(j) notify each Selling Holder of any requests by
the Commission for the amending or supplementing of such registration statement
or prospectus or for additional information;
(k) prepare and file with the Commission,
promptly upon the request of any Selling Holder, any amendments or supplements
to such registration statement or prospectus which, in the opinion of counsel
selected by the holders of a majority of the Registrable Shares being
registered, is required under the Securities Act or the rules and regulations
thereunder in connection with the distribution of Registrable Shares by such
Selling Holder;
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(l) prepare and promptly file with the
Commission, and promptly notify each Selling Holder of the filing of, such
amendments or supplements to such registration statement or prospectus as may
be necessary to correct any statements or omissions if, at the time when a
prospectus relating to such securities is required to be delivered under the
Securities Act, any event shall have occurred as the result of which any such
prospectus as then in effect would include an untrue statement of a material
fact or omit to state any material fact necessary to make the statements
therein, in the light of the circumstances in which they were made, not
misleading;
(m) advise each Selling Holder, promptly after
the Company shall receive notice or obtain knowledge thereof, of the issuance
of any stop order by the Commission suspending the effectiveness of such
registration statement or the initiation or threatening of any proceeding for
such purpose and promptly use all reasonable efforts to prevent the issuance of
any stop order or to obtain its withdrawal if such stop order should be issued;
(n) provide notice within a reasonable amount of
time prior to the filing of any registration statement or prospectus of any
amendment or supplement to such registration statement or prospectus, furnish a
copy thereof to each Selling Holder and refrain from filing any such
registration statement, prospectus, amendment or supplement to which counsel
selected by the holders of a majority of the Registrable Shares being
registered shall have reasonably objected on the grounds that such amendment or
supplement does not comply in all material respects with the requirements of
the Securities Act or the rules and regulations thereunder, unless, in the case
of an amendment or supplement, the Company reasonably believes the filing of
such amendment or supplement is reasonably necessary to protect the Company
from any liabilities under any applicable federal or state law;
(o) at the request of any Selling Holder in
connection with an underwritten offering, furnish on the date or dates provided
for in the underwriting agreement: (i) an opinion of counsel, addressed to the
underwriters and the Selling Holders, covering such matters as such
underwriters may reasonably request, including, without limiting the generality
of the foregoing, opinions to the effect that (A) such registration statement
has become effective under the Securities Act; (B) to the best of such
counsel's knowledge, no stop order suspending the effectiveness thereof has
been issued and no proceedings for
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that purpose have been instituted or are pending or contemplated under the
Securities Act; (C) the registration statement, the prospectus, and each
amendment or supplement thereto comply as to form in all material respects with
the requirements of the Securities Act and the applicable rules and regulations
of the Commission thereunder, except that such counsel need express no opinion
as to financial statements or other financial or statistical data contained
therein; and (ii) a "cold comfort" letter or letters from the independent
certified public accountants of the Company addressed to the underwriters and
the Selling Holders, covering such matters as such underwriters may reasonably
request, in which letters such accountants shall state, without limiting the
generality of the foregoing, that they are independent certified public
accountants within the meaning of the Securities Act and that in the opinion of
such accountants the financial statements and other financial data of the
Company included in the registration statement, the prospectus, or any
amendment or supplement thereto comply in all material respects with the
applicable accounting requirements of the Securities Act;
(p) deliver promptly to each Selling Holder and
each underwriter, if any, copies of all correspondence between the Commission
and the Company, its counsel or auditors and all memoranda relating to
discussions with the Commission or its staff with respect to the registration
statement, other than those portions of any such correspondence and memoranda
which contain information subject to attorney-client privilege with respect to
the Company;
(q) provide a CUSIP number for all Registrable
Shares, not later than the effective date of the registration statement;
(r) make reasonably available its employees and
personnel and otherwise provide reasonable assistance to the underwriters,
taking into account the needs of the Company's business and the requirements of
the marketing process, in the marketing of Registrable Shares in any
underwritten offering;
(s) promptly prior to the filing of any document
which is to be incorporated by reference into the registration statement or the
prospectus, after the initial filing of such registration statement, provide
copies of such document to counsel to the Selling Holders of Registrable Shares
and to the managing underwriter, if any, and make the Company's representatives
reasonably available for discussion of such document and make such changes in
such document prior
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to the filing thereof as counsel for such Selling Holders or underwriters may
reasonably request;
(t) furnish to each Selling Holder and the
managing underwriter, without charge, at least one signed copy of the
registration statement and any post-effective amendments thereto, including
financial statements and schedules, all documents incorporated therein by
reference and all exhibits, including those incorporated by reference;
(u) comply with all applicable rules and
regulations of the Commission, and make generally available to its security
holders, as soon as reasonably practicable after the effective date of the
registration statement, and in any event within 16 months thereafter, an
earnings statement (which need not be audited) covering the period of at least
12 consecutive months beginning with the first day of the Company's first
calendar quarter after the effective date of the registration statement, which
earnings statement shall satisfy the provisions of Section 11(a) of the
Securities Act and Rule 158 thereunder; and
(v) take all such other commercially reasonable
actions as are necessary or advisable in order to expedite or facilitate the
disposition of such Registrable Shares.
SECTION 7. Registration Expenses.
(a) Except as otherwise expressly provided
herein, all expenses incident to the Company's performance of or compliance
with this Agreement, including without limitation, all registration and filing
fees, fees and expenses of compliance with securities or blue sky laws,
including a blue sky survey and the related fees and expenses of counsel,
printing expenses, messenger and delivery expenses, and fees and disbursements
of counsel for the Company and its independent certified public accountants,
and other Persons (including experts) retained by the Company, and all other
fees and disbursements of underwriters customarily paid by issuers or sellers
of securities (all such expenses being herein called "Registration Expenses")
shall be paid as follows:
(i) In the case of a registration
effected by the filing of a Distribution Registration
Statement pursuant to Section 2 hereof, by the Company;
provided, however, that any Registration Expenses incurred in
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connection with or pursuant to the Company's obligation to keep
the Distribution Registration Statement effective or to
supplement or amend the Distribution Registration Statement
pursuant to Section 2(c) hereof shall be paid by the
Distributing Party.
(ii) In the case of a Demand Registration
pursuant to Section 3 hereof, by the Selling Holders and all
other holders (collectively, the "Participating Holders") of
Registrable Shares and other securities, if any (collectively,
the "Included Securities"), being sold pursuant to a
registration statement filed as contemplated thereby (or, if
satisfactory arrangements for the reimbursement thereof shall
be agreed to in advance by the Company and such holders, shall
be paid by the Company and reimbursed by the Participating
Holders), pro rata among the Participating Holders on the
basis of the number of the Included Securities being sold by
each of them; provided, however, that to the extent that any
Included Securities are not sold and the Participating Holder
who owns such Included Securities does not receive any
proceeds, directly or indirectly, then such Participating
Holder shall not be obligated to reimburse the Company for
such Participating Holder's pro rata share of the Registration
Expenses. In addition, each Participating Holder shall pay
all underwriting discounts, commissions or similar charges
attributable to the sale of Included Securities.
(b) The Company shall pay its internal expenses,
including without limitation, all salaries and expenses of its officers and
employees performing legal or accounting duties, the expense of any annual
audit or quarterly review, the expense of any liability insurance obtained by
the Company and the expenses and fees for listing the securities so registered
on each securities exchange on which any shares of common stock are then
listed or on the Nasdaq Stock Market.
SECTION 8. Indemnification and Contribution.
(a) Indemnification by the Company. The Company
shall indemnify and hold harmless to the fullest extent permitted by law each
Selling Holder, its officers, directors, fiduciaries, stockholders, partners
(and the directors, officers, employees and stockholders thereof) and agents
and each person, if any, who controls such Selling Holder within the meaning of
Section
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15 of the Act or Section 20 of the Securities Exchange Act (collectively, the
"Selling Indemnified Parties" and, individually, a "Selling Indemnified
Party"), from and against any and all losses, claims, damages, whether in
contract, tort or otherwise, liabilities, expenses, actions and proceedings,
whether commenced or threatened, in respect thereof, including reasonable costs
of investigation, counsel fees and amounts paid in settlement, whatsoever (as
incurred or suffered) arising out of or based upon any untrue statement or
alleged untrue statement of a material fact contained in any registration
statement or preliminary, final or summary prospectus relating to the
Registrable Shares or in any amendment or supplement thereto, or arising out of
or based upon any omission or alleged omission to state therein a material fact
required to be stated therein or necessary to make the statements therein not
misleading, except insofar as such losses, claims, damages, liabilities or
expenses arise out of, or are based upon, any such untrue statement or omission
or allegation thereof based upon information furnished in writing to the
Company by such Selling Holder or on such Selling Holder's behalf expressly for
use therein. The Company shall also indemnify any underwriters of the
Registrable Shares, their officers, partners and directors and each person who
controls such underwriters on substantially the same basis as that of the
indemnification of the Selling Indemnified Parties provided in this Section 8
or to provide such other indemnification customarily obtained by underwriters
at the time of offering.
(b) Conduct of Indemnification Proceedings. If
any action or proceeding, including any governmental investigation, shall be
brought or asserted against any Selling Indemnified Party in respect of which
indemnity may be sought from the Company, the Company shall, at its expense,
assume the defense thereof, including the employment of counsel reasonably
satisfactory to such Selling Indemnified Party. Such Selling Indemnified Party
shall have the right to employ separate counsel in any such action and to
participate in the defense thereof, but the fees and expenses of such counsel
shall be at the expense of such Selling Indemnified Party unless (i) the
Company has agreed to pay such fees and expenses, (ii) the Company fails to
diligently defend the action or proceeding within 20 days after receiving
notice from the Selling Indemnified Party that the Selling Indemnified Party
believes the Company has so failed or (iii) the named parties to any such
action or proceeding, including any impleaded parties, include both such
Selling Indemnified Party and the Company, and such Selling Indemnified Party
shall have been advised by counsel that there may be a conflict of interest
between any of the parties, or that representation of the
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Selling Indemnified Party and the Company is otherwise inappropriate under
applicable standards of professional conduct, or one or more legal defenses are
available to such Selling Indemnified Party which are different from or
additional to those available to the Company; in which case, if such Selling
Indemnified Party notifies the Company in writing that it elects to employ
separate counsel at the expense of the Company, the Company shall not have the
right to assume the defense of such action or proceeding on behalf of such
Selling Indemnified Party; it being understood, however, that the Company shall
not, in connection with any one such action or proceeding or separate but
substantially similar or related actions or proceedings in the same
jurisdiction arising out of the same general allegations or circumstances, be
liable for the fees and expenses of more than one separate firm of attorneys
(together with appropriate local counsel) at any time for all such Selling
Indemnified Parties, which firm shall be designated in writing by a majority of
the Selling Indemnified Parties. The Company shall not be liable for any
settlement of any such action or proceeding effected without the Company's
written consent, but if settled with its written consent, which consent shall
not be unreasonably withheld or delayed, or if there be a final judgment no
longer subject to appeal for the plaintiff in any such action or proceeding,
the Company agrees to indemnify and hold harmless such Selling Indemnified
Parties from and against any loss or liability (to the extent stated above) by
reason of such settlement or judgment.
(c) Indemnification by Holders of Registrable
Shares. Each Selling Holder shall severally, but not jointly, indemnify and
hold harmless the Company, its directors, officers, fiduciaries, stockholders
and agents and each person, if any, who controls the Company within the meaning
of either Section 15 of the Act or Section 20 of the Securities Exchange Act
(collectively, the "Issuer Indemnified Parties" and, individually, an "Issuer
Indemnified Party" and, together with a Selling Indemnified Party an
"Indemnified Party"), to the same extent as the foregoing indemnity from the
Company to such Selling Holder, but only with respect to information furnished
in writing by such Selling Holder or on such Selling Holder's behalf expressly
for use in any registration statement or prospectus relating to the Registrable
Shares, or any amendment or supplement thereto, or any preliminary prospectus;
provided, however, that to the extent that this indemnity arises from any
untrue statement or alleged untrue statement or omission or alleged omission
contained in any registration statement (other than the Distribution
Registration Statement) or in any prospectus relating to the Registrable Shares
(other than a prospectus used in connection with the
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Distribution) or in any amendment or supplement thereto, the liability of each
Selling Holder shall be limited to the amount of the gross proceeds received by
such Selling Holder from the offering. In case any action or proceeding shall
be brought against an Issuer Indemnified Party, in respect of which indemnity
may be sought against such Selling Holder, such Selling Holder shall have the
rights and duties given to the Company, and the Issuer Indemnified Parties
shall have the rights and duties given to such Selling Holder, by the preceding
Section 8(b)hereof. Each Selling Holder shall also severally, but not jointly,
indemnify and hold harmless underwriters of the Registrable Shares, their
officers, directors, fiduciaries, stockholders and agents and each person who
controls such underwriters on substantially the same basis as that of the
indemnification of the Company provided in this Section 8.
(d) Contribution. If the indemnification
provided for in this Section 8 is unavailable to any Indemnified Party in
respect of any losses, claims, damages, liabilities, expenses, actions or
proceedings referred to herein, then each such indemnifying party, in lieu of
indemnifying such Indemnified Party, shall contribute to the amount paid or
payable by such Indemnified Party as a result of such losses, claims, damages,
liabilities, expenses, actions and proceedings (i) as between the Issuer
Indemnified Parties and the Selling Indemnified Parties on the one hand and the
underwriters on the other, in such proportion as is appropriate to reflect the
relative benefits received by the Issuer Indemnified Parties and the Selling
Indemnified Parties on the one hand and the underwriters on the other from the
offering of the Registrable Shares, or if such allocation is not permitted by
applicable law, in such proportion as is appropriate to reflect not only such
relative benefits but also the relative fault of the Issuer Indemnified Parties
and the Selling Indemnified Parties on the one hand and of the underwriters on
the other in connection with the statements or omissions which resulted in such
losses, claims, damages, liabilities, expenses actions or proceedings, as well
as any other relevant equitable considerations and (ii) as between the Issuer
Indemnified Parties, on the one hand, and each Selling Indemnified Party on the
other, in such proportion as is appropriate to reflect the relative fault of
the Issuer Indemnified Parties and of each Selling Indemnified Party in
connection with such statements or omissions, as well as any other relevant
equitable considerations. The relative benefits received by the Issuer
Indemnified Parties and the Selling Indemnified Parties on the one hand and the
underwriters on the other shall be deemed to be in the same proportion as the
total proceeds from the offering, net of underwriting discounts and commissions
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but before deducting expenses, received by the Issuer Indemnified Parties and
the Selling Indemnified Parties bear to the total underwriting discounts and
commissions received by the underwriters, in each case as set forth in the
table on the cover page of the prospectus. The relative fault of the Issuer
Indemnified Parties and the Selling Indemnified Parties on the one hand and of
the underwriters on the other shall be determined by reference to, among other
things, whether the untrue or alleged untrue statement of a material fact or
the omission or alleged omission to state a material fact relates to
information supplied by the Issuer Indemnified Parties and the Selling
Indemnified Parties or by the underwriters. The relative fault of the Issuer
Indemnified Parties on the one hand and of each Selling Indemnified Party on
the other shall be determined by reference to, among other things, whether the
untrue or alleged untrue statement of a material fact or the omission or
alleged omission to state a material fact relates to information supplied by
such party, and the parties' relative intent, knowledge, access to information
and opportunity to correct or prevent such statement or omission.
The Company and the Selling Holders hereby agree that
it would not be just and equitable if contribution pursuant to this Section
8(d) were determined by pro rata allocation, even if the underwriters were
treated as one entity for such purpose, or by any other method of allocation
which does not take account of the equitable considerations referred to in the
immediately preceding paragraph. The amount paid or payable by an Indemnified
Party as a result of the losses, claims, damages, liabilities, expenses,
actions or proceedings referred to in the immediately preceding paragraph shall
be deemed to include, subject to the limitations set forth above, any legal or
other expenses reasonably incurred by such indemnified party in connection with
investigating or defending any such action or claim. Notwithstanding the
provisions of this Section 8(d), no underwriter shall be required to contribute
any amount in excess of the amount by which the total price at which the
Registrable Shares underwritten by it and distributed to the public were
offered to the public exceeds the amount of any damages which such underwriter
has otherwise been required to pay by reason of such untrue or alleged untrue
statement or omission or alleged omission, and no Selling Holder shall be
required to contribute any amount in excess of the amount by which the total
price at which the Registrable Shares of such Selling Holder were offered to
the public exceeds the amount of any damages which such Selling Holder has
otherwise been required to pay by reason of such untrue or alleged untrue
statement or omission or alleged omission. No Person guilty of fraudulent
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misrepresentation, within the meaning of Section 11(f) of the Securities Act,
shall be entitled to contribution from any Person who was not guilty of such
fraudulent misrepresentation. Each Selling Holder's obligation to contribute
is several in the proportion that the proceeds of the offering received by such
Selling Holder bears to the total proceeds of the offering, and not joint.
(e) Settlement or Compromise. No indemnifying
party shall without the written consent of the Indemnified Party, effect the
settlement or compromise of, or consent to the entry of any judgment with
respect to, any pending or threatened action or claim in respect of which
indemnification or contribution may be sought hereunder, whether or not the
Indemnified Party is an actual or potential party to such action or claim,
unless such settlement, compromise or judgment (i) includes an unconditional
release of the Indemnified Party from all liability arising out of such action
or claim and (ii) does not include a statement as to or an admission of fault,
culpability or a failure to act, by or on behalf of any Indemnified Party.
(f) Rights not Exclusive. The indemnity
agreements contained in this Section 8 shall be in addition to any other rights
to indemnification or contribution which any Indemnified Party may have
pursuant to law or contract and shall remain operative and in full force and
effect regardless of any investigation made or omitted by or on behalf of any
indemnified party and shall survive the transfer of the Registrable Shares by
any such party.
SECTION 9. Compliance with Rule 144. When it is first
legally required to do so, the Company shall register a class of securities
under Section 12 of the Securities Exchange Act, and commence to file reports
under Section 13 or 15(d) of the Securities Exchange Act. Thereafter at the
request of any holder who proposes to sell securities in compliance with Rule
144 promulgated by the Commission under the Securities Act, the Company shall
(i) forthwith furnish to such holder a written statement of compliance with the
filing requirements of the Commission as set forth in Rule 144 as such rule may
be amended from time to time and (ii) timely file and make available to the
public and such holders such reports and other information as will enable the
holders to make sales pursuant to Rule 144.
SECTION 10. Participation in Underwritten Registrations.
No Person may participate in any registration hereunder which is underwritten
unless such Person (a) agrees to sell such Person's securities on the basis
provided in any underwriting
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arrangements approved by the Person or Persons entitled hereunder to approve
such arrangements, (b) provides all such information as is reasonably required
to effect such registration and completes and executes all undertakings,
questionnaires, powers of attorney, indemnities, underwriting agreements and
other documents reasonably required under the terms of such underwriting
arrangements or applicable laws, and (c) complies with all other reasonable
requests of the managing underwriter and with the Company and complies with all
other reasonable requests related to such registration.
SECTION 11. Remedies. Any Person having rights under any
provision of this Agreement will be entitled to enforce such rights
specifically, to recover damages caused by reason of any breach of any
provision of this Agreement and to exercise all other rights granted by law.
SECTION 12. Amendments and Waivers. Except as otherwise
expressly provided herein, the provisions of this Agreement may be amended or
waived at any time only by the written agreement of the Company and the holders
of a majority of the Registrable Shares. Any waiver, permit, consent or
approval of any kind or character on the part of any such holders of any
provision or condition of this Agreement must be made in writing and shall be
effective only to the extent specifically set forth in writing.
SECTION 13. Successors and Assigns. Except as otherwise
expressly provided herein, all covenants and agreements contained in this
Agreement by or on behalf of any of the parties hereto will bind and inure to
the benefit of the respective successors and assigns of the parties hereto,
whether so expressed or not.
SECTION 14. Final Agreement. This Agreement constitutes the
final agreement of the parties hereto concerning the matters referred to
herein, and supersedes all prior agreements and understandings with respect to
the subject matter hereof.
SECTION 15. Severability. Whenever possible, each provision
of this Agreement shall be interpreted in such manner as to be effective and
valid under applicable law, but if any provision of this Agreement is held to
be prohibited by or invalid under applicable law, such provision will be
ineffective only to the extent of such prohibition or invalidity, without
invalidating the remainder of this Agreement.
SECTION 16. Descriptive Headings. The descriptive headings
of this Agreement are inserted for convenience of reference only and do not
constitute a part of and shall not be utilized in interpreting this Agreement.
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SECTION 17. Notices. Any notices required or permitted to be sent
hereunder shall be delivered by hand, by telex or telecopier, or by certified
or registered mail, postage prepaid and return receipt requested, or delivered
by overnight courier service to the following addresses, or such other
addresses as shall be given by notice delivered hereunder. Notices shall be
deemed to have been given upon delivery, if delivered by hand, three business
days after mailing, if mailed, or one business day after delivery to the
courier, if delivered by overnight courier service, and upon receipt of an
appropriate electronic confirmation, if by telex or telecopier:
If to the holders of Registrable Shares, to the addresses set
forth on the stock record books of the Company.
If to the Company, to:
Bayard Drilling Technologies, Inc.
0000 Xxxxxxxxx Xxxxxxxxxx
Xxxxx 000X
Xxxxxxxx Xxxx, Xxxxxxxx 00000
Telecopy: (000) 000-0000
Attention: President
SECTION 18. Governing Law. The validity, meaning and effect
of this Agreement shall be determined in accordance with the laws of the State
of Delaware applicable to contracts made and to be performed in that state.
SECTION 19. Counterparts. This Agreement may be executed in
any number of counterparts, each of which when so executed and delivered shall
be deemed an original, and such counterparts together shall constitute one
instrument. Each party shall receive a duplicate original of the counterpart
copy or copies executed by it and the Company.
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IN WITNESS WHEREOF, the undersigned have executed this
Agreement as of the date first above written.
BAYARD DRILLING TECHNOLOGIES, INC.
By: /s/ XXXXX X. XXXXX
--------------------------------------------
Xxxxx X. Xxxxx
President
DLB OIL & GAS, INC.
By: /s/ XXXX XXXXXXX
--------------------------------------------
Name: Xxxx Xxxxxxx
-----------------------------------------
Title: President
-----------------------------------------
XXXXXXXXX, XXXXXX & XXXXXXXX
SECURITIES CORPORATION
By: /s/ XXX XXXXX
-------------------------------------------
Name: Xxx Xxxxx
------------------------------------------
Title:
-----------------------------------------
