Exhibit 2.4
REGISTRATION RIGHTS AGREEMENT
This Registration Rights Agreement (the "Agreement") dated as of February
28, 1997, is entered into by and between NEWPARK RESOURCES, INC., a Delaware
corporation ("Newpark"), and each of the Persons whose names and addresses are
listed on Exhibit "A" attached to this Agreement (each a "Holder" and
collectively the "Holders"), with reference to the following facts:
A. Holders are entitled to receive an aggregate of 582,000 shares (the
"Shares") of Newpark's common stock, $.01 par value (the "Common Stock"), upon
the merger (the "Merger") of SBM ACQUISITION CORPORATION, a Delaware corporation
("Newco") which was a wholly owned subsidiary of Newpark, into XXXXXX XXXXX
XXXXXX DRILLING FLUIDS MANAGEMENT, INC., a Texas corporation (the "Company"),
pursuant to the Merger Agreement and Plan of Reorganization (the "Merger
Agreement") among Newpark, Newco, the Company and the "Stockholder Parties" so
identified in the Merger Agreement (each of whom is a Holder). Because the
Shares are being issued pursuant to an exemption from the registration
provisions of the Securities Act, resale of the Shares without registration
under the Securities Act is subject to restrictions.
B. In order to satisfy a condition precedent to the Merger, this
Agreement obligates Newpark to use its best efforts to register some of the
Shares under the Securities Act at certain times.
NOW, THEREFORE, in consideration of the premises set forth above and
the mutual promises and covenants hereinafter set forth, the parties agree as
follows:
1. Definitions. As used in this Agreement, the following capitalized
terms shall have the following respective meanings:
Common Stock - As defined in Paragraph A above.
Exchange Act - The Securities Exchange Act of 1934, as amended, or any
similar federal statute then in effect, and a reference to a particular section
thereof shall be deemed to include a reference to the comparable section, if
any, of any such similar federal statute.
Holder or Holders - As defined in the introduction to this Agreement.
Holder Party or Parties - As defined in Paragraph 6.1 below.
Participating Holder or Holders - Each Holder or all Holders for whom
Shares are included in a registration statement filed under the Securities Act.
Person or person - An individual, partnership, joint venture,
corporation, trust, unincorporated organization or government or any department
or agency thereof.
Registration Expenses - Any and all expenses incident to performance
of or compliance with this Agreement, including, without limitation: (i) all
SEC and stock exchange or National Association of Securities Dealers
registration and filing fees, (ii) all fees and expenses of complying with
securities or blue sky laws (including reasonable fees and disbursements of
counsel for the underwriters in connection with blue sky qualifications of the
Shares), (iii) all printing, messenger and delivery expenses, (iv) the fees and
disbursements of counsel for Newpark and of its independent public accountants,
(v) any fees and disbursements of underwriters customarily paid by issuers or
sellers of securities, including liability insurance if Newpark so desires, and
(vi) the reasonable fees and expenses of any special experts retained by Newpark
in connection with the requested registration, but excluding underwriting
discounts and commissions and transfer taxes, if any, applicable to
Participating Holders' Shares.
Rule 144 - Rule 144 under the Securities Act, as amended from time to
time, or any successor Rule.
Rule 145 - Rule 145 under the Securities Act, as amended from time to
time, or any successor Rule.
Rules and Regulations - The rules and regulations promulgated by the
SEC under the Securities Act and the Exchange Act.
Securities Act - The Securities Act of 1933, as amended, or any
similar federal statute then in effect, and a reference to a particular section
thereof shall be deemed to include a reference to the comparable section, if
any, of any such similar federal statute.
SEC - The Securities and Exchange Commission or any other federal
agency at the time administering the Securities Act or the Exchange Act.
Shares - As defined in Paragraph A above.
2. Demand Registration Rights.
(a) Demand by Holders. Subject to the further terms and conditions of
this Agreement, if, at any time, one or more Holders request in writing to
Newpark that Newpark effect the registration under the Securities Act of at
least 50,000 of the Shares (which request shall specify the number of Shares
intended to be disposed of by each Holder and the intended method of disposition
thereof), Newpark will promptly give notice of such requested registration to
all other Holders and thereafter will use its best efforts to effect such
registration of (i) the Shares which Newpark has been so requested to register
by such Holders and (ii) all other Shares which Newpark has been requested to
register by other Holders by written requests delivered to Newpark within 20
days after the giving of such written notice by Newpark (which requests shall
specify the intended method of disposition of such other Holders' Shares), all
for disposition in accordance with the intended methods of disposition stated in
the requests of such Holders.
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(b) Priorities in Demand Registrations. Subject to clauses (i) and
(ii) below, Newpark may include in any registration statement filed in response
to Holders' requests other shares of Common Stock for sale by Newpark or by
other stockholders, provided, however, that (i) if such registration statement
relates to an underwritten offering and the managing underwriter or underwriters
advise Newpark in writing that, in its or their opinion, the number of shares of
Common Stock requested to be included in such registration would have a material
adverse effect on such offering (including, without limitation, a material
decrease in the price at which such shares can be sold), then the number of
shares of Common Stock included in the offering shall be reduced, and the Shares
and the other shares of Common Stock to be included in the offering shall
participate in such offering as follows: (x) the Shares to be sold by Holders
shall have priority over all shares of Common Stock to be offered by Newpark and
other stockholders of Newpark, and (y) if shares of Common Stock in excess of
Holders' Shares can, in the good faith judgment of such managing underwriter or
underwriters, successfully be marketed in such offering, such excess shares
shall be included in such offering in such proportions as may be agreed between
Newpark and such other stockholders; and (ii) if such offering is not
underwritten, then no other shares of Common Stock shall be included in such
registration statement unless Holders consent to the inclusion of such shares
therein, which consent shall not be unreasonably withheld.
(c) Limit on Number of Demand Registrations. Holders shall not be
entitled to make a request pursuant to this Paragraph 2 more than three times,
provided that the registrations so requested are actually effected and remain in
effect in accordance with Paragraph 5.1(b). This number shall be reduced by one
(i.e., to two) if Holders are given the opportunity to register pursuant to
Paragraph 3 at least 100,000 Shares, provided that such registration is actually
effected and remains in effect in accordance with Paragraph 5.1(b).
3. Incidental Registration Rights.
(a) Right to Include Shares. Subject to the further terms and
conditions of this Agreement, if Newpark at any time proposes to register any
Common Stock on any form for the registration of securities under the Securities
Act (other than Form S-4 and Form S-8), Newpark will at such time give prompt
written notice to Holders of its intention to do so and of Holders' rights under
this Paragraph 3. Upon the written request of any Holders made within 20 days
after receipt of any such notice that all or a portion of the Shares be included
in such registration (which request shall specify the number of Shares intended
to be disposed of by each Holder desiring to participate and the intended method
of disposition thereof), Newpark will cause the Shares for which Holders have
requested registration to be included in the registration statement filed with
respect to such registration under the Securities Act, provided that (i) if, at
any time after giving written notice of its intention to register Common Stock
but prior to the effective date of the registration statement filed in
connection with such registration, Newpark shall determine for any reason not to
register such Common Stock, Newpark may, at its election, give written notice of
such determination to Holders, and, thereupon, shall be relieved of its
obligation to register any Shares in such registration, and (ii) if such
registration involves an underwritten offering, Holders must sell their Shares
(if Holders continue to desire such Shares to be registered)
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to the underwriters of such offering on the same terms and conditions as apply
to Newpark or the stockholders for whose account securities are to be sold, as
the case may be.
(b) Priorities in Incidental Registrations. In connection with any
registration pursuant to this Paragraph 3 involving an underwritten offering, if
the managing underwriter or underwriters advise Newpark in writing that, in its
or their opinion, the number of shares of Common Stock requested to be included
in such registration would have a material adverse effect on such offering
(including, without limitation, a material decrease in the price at which such
Common Stock can be sold), then the amount of the Shares included in the
offering shall be reduced, and the Shares and the other shares of Common Stock
to be included in the offering shall participate in such offering as follows:
(i) shares of Common Stock to be sold by Newpark shall have priority over all
shares to be sold by stockholders of Newpark, including Holders, and (ii) to the
extent that shares of Common Stock in excess of the Common Stock to be sold by
Newpark can, in the good faith judgment of such managing underwriter or
underwriters, successfully be marketed in such offering, (x) the Shares to be
sold by Holders and shares of Common Stock to be sold by any other stockholders
of Newpark who have the right to registration of their Common Stock under
agreements in existence at the time Newpark gives notice to Holders pursuant to
this Paragraph 3 shall have priority over shares of Common Stock to be sold by
other stockholders of Newpark, subject to reduction prorata in proportion to the
number of shares of Common Stock proposed to be included in such offering by
each Holder and each other stockholder having such registration rights, and (y)
additional shares of Common Stock, if any, shall be included in such
registration in such proportions as may be agreed upon by Newpark and such other
stockholders.
4. Additional Provisions. Notwithstanding the provisions of Paragraphs 2
and 3 of this Agreement:
(a) Subject to the undertaking delivered pursuant to Section 4.10 of
the Merger Agreement, the maximum number of Shares that Holders of Shares are
entitled to have registered under Paragraph 2 or Paragraph 3 during various
periods is set forth below, provided, however, that if Holders do not in any
period have registered all of the Shares which they were entitled to have
registered in such period, they shall be entitled to have the Shares that were
not registered in such period registered in any subsequent period.
Effective Date of
Registration Statement Number of Shares
---------------------- ----------------
Prior to May 15, 1997 None
From May 15, 1997, to
February 28, 1998 100,000
From February 28, 1998, to
February 28, 1999 100,000
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Effective Date of
Registration Statement Number of Shares
---------------------- -----------------
After February 28, 1999 None
On or before April 15, 1997, Newpark will use its diligent efforts to file a
registration statement under the Securities Act to register the sale by the
Holders of 100,000 Shares and will use its diligent efforts to cause such
registration statement to become effective as of May 15, 1997. Prior to or
contemporaneously with such registration statement becoming effective, Newpark
will take such other actions as are called for by this Agreement to permit the
sale of such Shares as of such date. The foregoing registration shall be deemed
to be one of the registrations permitted to the Holders pursuant to Paragraph 2.
(b) If the aggregate number of Shares that Holders propose to have
registered in any period exceeds the foregoing limits, the number of Holders'
shares eligible to be registered in such period shall be allocated prorata among
Holders in proportion to the number of Shares owned by each or as they may
otherwise agree among themselves. If the aggregate number of Shares that
Holders propose to have registered in any registration statement exceeds the
foregoing limits, after the allocation called for by the immediately preceding
sentence, the number of Holders' Shares eligible to be included in such
registration statement shall be allocated prorata among requesting Holders in
proportion to the number of Shares proposed by each of them for inclusion in
such registration statement or as they may otherwise agree among themselves.
(c) Newpark shall not be required to effect or cause the registration
of Shares held by any Holder pursuant to Paragraph 2 or 3 if, within 25 days
after its receipt of a request to register such Shares, Newpark delivers to such
Holder an opinion of counsel in form and substance satisfactory to counsel to
such Holder, that the entire number of Shares proposed to be sold by such Holder
may be sold, in the manner proposed by such Holder, without registration under
the Securities Act, whether pursuant to Rule 144, Rule 145 or otherwise, within
a period ending not more than ninety (90) days after the date of such opinion.
5. Registration Procedures.
5.1 Newpark Obligations. If and whenever Newpark is required to
effect the registration of any Shares under the Securities Act as provided in
this Agreement, as expeditiously as possible:
(a) Newpark will prepare and file with the SEC a registration
statement with respect to such Shares and use its best efforts to cause such
registration statement to become effective as soon thereafter as possible,
provided, that, before filing such registration statement or prospectus or any
amendments or supplements thereto: Newpark will furnish to each Participating
Holder copies of all such documents proposed to be filed, which documents will
be subject to review by such Holders, and Newpark will not file any such
registration statement or prospectus or any amendment or supplement thereto to
which any Participating Holder shall reasonably
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object; Newpark may assume, for the purpose of the foregoing proviso, that a
Holder has no objection if Newpark has not received notice from such Holder
within five calendar days after delivery of such documents to Holder or, with
respect to any version of or amendment or supplement to any such registration
statement after the first draft furnished to such Holder, such shorter period as
Newpark may reasonably request when it furnishes such documents to such Holder,
if a longer delay would result in prejudice to the proposed offering. Newpark
will promptly notify the Participating Holders and confirm such advice in
writing, (i) when such registration statement becomes effective, (ii) when any
post-effective amendment to such registration statement becomes effective, (iii)
of the issuance by the SEC of any stop order suspending the effectiveness of
such registration statement or the initiation of any proceedings for that
purpose, (iv) of the issuance by any state securities commission or other
regulatory authority of any order suspending the qualification or the exemption
from qualification of any of the Shares under state securities or blue sky laws
or the initiation of any proceedings for that purpose, and (v) of any request by
the SEC for any amendment or supplement to such registration statement or any
prospectus relating thereto or for additional information. Newpark will make
every reasonable effort to prevent the issuance of any stop order and, if any
stop order is issued, to obtain the lifting thereof at the earliest possible
moment.
(b) Newpark will prepare and file with the SEC such amendments
(including post-effective 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 at least six (6) months (or for
such shorter period in which the Participating Holders have sold all of the
Shares included in such registration statement) and to comply with the
provisions of the Securities Act with respect to the disposition of the Shares
covered by such registration statement during such period in accordance with the
intended methods of disposition by Participating Holders set forth in such
registration statement, as so amended, or such prospectus, as so supplemented.
(c) Newpark will furnish to each Participating Holder one signed copy
of such registration statement as originally filed and each amendment thereto
(without exhibits unless otherwise requested by such Participating Holder) and
such number of copies of such registration statement and of each such amendment
and supplement thereto, such number of copies of the prospectus (as amended or
supplemented) included in such registration statement (including each
preliminary prospectus and summary prospectus), in conformity with the
requirements of the Securities Act, and such other documents as Participating
Holders may reasonably request in order to facilitate the disposition of the
Shares by all Participating Holders.
(d) Newpark will use its best efforts to register or qualify such
Shares covered by such registration statement under such securities or blue sky
laws of any State of the United States as the managing underwriter, if any, or
Participating Holders who have Shares included in such registration statement
shall reasonably request, and do any and all other acts and things which may be
reasonably necessary or advisable to enable each Participating Holder and each
underwriter, if any, to consummate the disposition in such jurisdictions of the
Shares to be sold by such Participating Holder, except that Newpark shall not
for any such purpose be required
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to qualify generally to do business as a foreign corporation in any jurisdiction
where, but for the requirements of this Paragraph 5.1(d), it would not be
obligated to be so qualified, to subject itself to taxation in any such
jurisdiction, or to consent to general service of process in any such
jurisdiction.
(e) Newpark will promptly notify each Participating Holder at any
time when a prospectus relating thereto is required to be delivered under the
Securities Act during the period mentioned in Paragraph 5.1(b) and Newpark
becomes aware that the prospectus included in such registration statement, as
then in effect, includes an untrue statement of a material fact or omits to
state a material fact required to be stated therein or necessary to make the
statements therein not misleading in the light of the circumstances existing at
the time it is to be delivered to a purchaser; and promptly prepare and furnish
to each Participating Holder a reasonable number of copies of an amended or
supplemental prospectus as may be necessary so that, as thereafter delivered to
the purchasers of such Shares, such prospectus shall not include an untrue
statement of a material fact or omit to state a material fact required to be
stated therein or necessary to make the statements therein not misleading in the
light of the circumstances then existing. If a registration statement is not
effective for the full period called for by Paragraph 5.1(b) for the reasons
described above in this Paragraph, then Newpark's obligation to keep such
registration statement effective shall be extended for a period of time equal to
the period of time during which prospectuses were not available so that the
actual period of effectiveness for such registration statement shall equal that
called for in Paragraph 5.1(b).
(f) During the period when the prospectus is required to be delivered
under the Securities Act, Newpark will promptly file all documents required to
be filed with the SEC pursuant to Section 13(a), 13(c), 14 or 15(d) of the
Exchange Act and furnish a copy thereof to each Participating Holder promptly
after such document is so filed.
(g) Newpark will otherwise use its best efforts to comply with all
applicable rules and regulations of the SEC and, if requested by Participating
Holders having Shares included in such registration statement, will obtain an
opinion letter from Newpark's counsel addressed to all Participating Holders in
customary form covering such matters as may reasonably be requested.
(h) Newpark will make available for inspection by Participating
Holders having Shares included in a registration statement, by any underwriter
participating in any disposition to be effected pursuant to such registration
statement and by any attorney, accountant or other agent retained by any such
seller or any such underwriter, in each case upon receipt of an appropriate
confidentiality agreement, all financial and other records, corporate documents
and properties of Newpark and its subsidiaries, and cause all of Newpark's
officers, directors and employees to supply all information, as may be
reasonably requested by such Participating Holders or any such underwriter,
attorney, accountant or agent in connection with such registration statement.
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5.2 Participating Holder Obligations.
(a) Each Participating Holder shall furnish Newpark in writing such
information and documents (or true copies of documents) regarding such Holder
and the distribution of his or her Shares as Newpark may reasonably request,
including questionnaires, powers of attorney, indemnities, standstill
agreements, underwriting agreements and other documents required under the terms
of such underwriting agreements.
(b) Each Participating Holder agrees that, upon receipt of any notice
from Newpark of the happening of any event of the kind described in Paragraph
5.1(e), such Holder will forthwith discontinue disposition of Shares pursuant to
the registration statement covering such Shares until such Holder's receipt of
copies of the supplemented or amended prospectus contemplated by Paragraph
5.1(e), and, if so directed by Newpark, such Holder will deliver to Newpark (at
Newpark's expense) all copies, other than permanent file copies then in such
Holder's possession, of the prospectus covering such Shares current at the time
of receipt of such notice. In the event Newpark shall give any such notice, the
period mentioned in Paragraph 5.1(b) shall be extended by the number of days
during the period from and including the date of the giving of such notice
pursuant to Paragraph 5.1(e) to and including the date when all Participating
Holders shall have received the copies of the supplemented or amended prospectus
contemplated by Paragraph 5.1(e).
5.3 Expenses. Newpark will pay all Registration Expenses in
connection with each registration of Shares pursuant to Paragraphs 2 and 3;
provided, however, that (x) all underwriting discounts and commissions
attributable to the Shares shall be borne by Participating Holders in proportion
to the number of Shares sold by each of them, and (y) any other fees or expenses
incurred by any of the parties, including fees and expenses of attorneys and
accountants, other than those fees described in clause (ii) of the definition of
Registration Expenses, shall be borne by the party that incurred them.
6. Indemnification.
6.1 Indemnification by Newpark. In the event of any registration of
any of the Shares under the Securities Act pursuant to this Agreement, Newpark
will, and it hereby does, indemnify and hold harmless each Participating Holder,
each Person who participates as an underwriter in the offering or sale of such
securities and each other Person, if any, who controls any such underwriter or
Participating Holder within the meaning of Section 15 of the Securities Act or
Section 20 of the Exchange Act, and the agents, employees, officers and
directors of Participating Holders or such underwriter and each such controlling
person (each a "Holder Party" and collectively as the "Holder Parties"), against
any and all losses, claims, damages or liabilities, joint or several, and
expenses (including any amounts paid in any settlement effected with Newpark's
written consent) to which any Participating Holder, any such underwriter or
controlling person may become subject under the Securities Act, common law or
otherwise, insofar as such losses, claims, damages or liabilities (or actions or
proceedings in respect thereof) arise out of or are based upon (i) any untrue
statement or alleged untrue statement of any
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material fact contained in any registration statement under which such
securities were registered under the Securities Act, any preliminary, final or
summary prospectus contained therein, or any amendment or supplement thereto, or
(ii) 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,
and Newpark will reimburse Holder Parties for any legal or any other expenses
reasonably incurred by them in connection with investigating or defending any
such loss, claim, liability, action or proceeding, provided, that Newpark shall
not be liable in any such case to the extent that any such loss, claim, damage,
liability (or action or proceeding in respect thereof) or expense arises out of
or is based upon any breach by the indemnified person of its obligations under
this Agreement, including, without limitation, those contained in Paragraph 5.2
or any untrue statement or alleged untrue statement or omission or alleged
omission made in such registration statement or amendment or supplement thereto
or in any such preliminary, final or summary prospectus or amendment or
supplement thereto, in reliance upon and in conformity with information
furnished in writing to Newpark by or on behalf of such Participating Holder,
any such underwriter or controlling Person specifically for use in the
preparation thereof; and provided, further, that Newpark will not be liable to
any Person who participates as an underwriter in the offering or sale of Shares,
or to any other Person who controls such underwriter within the meaning of the
Securities Act and the Exchange Act, under the indemnity agreement in this
Paragraph 6.1 with respect to any preliminary prospectus or the final
prospectus, or the final prospectus as amended or supplemented, as the case may
be, to the extent that any such loss, claim, damage or liability of such
underwriter or controlling Person results from the fact that such underwriter
sold Shares to a person to whom there was not sent or given, at or prior to the
written confirmation of such sale, a copy of the final prospectus (including any
documents incorporated by reference therein) or of the final prospectus as then
amended or supplemented (including any documents incorporated by reference
therein), whichever is most recent, if Newpark has previously furnished copies
thereof to such underwriter and such final prospectus, as then amended or
supplemented, has corrected any such misstatement or omission, and if Newpark
shall sustain the burden of proving that the Holder Party sold Shares to the
person alleging such loss, claim, damage or liability without sending or giving,
at or prior to the written confirmation of such sale, a copy of the amended or
supplemented registration statement or prospectus if Newpark had previously
furnished copies thereof to such Holder Party. Such indemnity shall remain in
full force and effect regardless of any investigation made by or on behalf of
any Holder Party and shall survive the transfer of such securities by each such
Person.
6.2 Indemnification by Participating Holders. In the event of any
registration of any securities of Newpark under the Securities Act pursuant to
this Agreement, each Participating Holder, severally and not jointly, will, and
each Participating Holder hereby does, indemnify and hold harmless Newpark, each
director of Newpark, each officer of Newpark who shall sign the registration
statement and its controlling Persons, if any, and all other prospective sellers
and their respective directors, officers and controlling Persons against any and
all losses, claims, damages or liabilities, joint or several, and expenses
(including any amounts paid in any settlement effected with the Participating
Holder's written consent) to which such Persons may become subject under the
Securities Act, common law or otherwise, to the extent that such losses, claims,
damages or liabilities (or actions or proceedings in respect thereof) arise out
of or are
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based upon any statement or alleged statement in or omission or alleged omission
from such registration statement, any preliminary, final or summary prospectus
contained therein, or any amendment or supplement, if such statement or alleged
statement or omission or alleged omission was made in reliance upon and in
conformity with information furnished in writing to Newpark by or on behalf of
such Participating Holder for use in the preparation of such registration
statement, preliminary, final or summary prospectus or amendment or supplement,
and such Participating Holder will reimburse Newpark and such other indemnified
persons for any legal or any other expenses reasonably incurred by them in
connection with investigating or defending any such loss, claim, liability,
action or proceeding. Such indemnity shall remain in full force and effect
regardless of any investigation made by or on behalf of Newpark or any of the
other prospective sellers or any of their respective directors, officers or
controlling Persons and shall survive the transfer of such securities by the
Participating Holder or such seller.
6.3 Notices of Claims, etc. Promptly after receipt by an indemnified
party hereunder of written notice of the commencement of any action or
proceeding with respect to which a claim for indemnification may be made
pursuant to this Paragraph 6 such indemnified party will, if a claim in respect
thereof is to be made against an indemnifying party, give written notice to the
latter of the commencement of such action, provided that the failure of any
indemnified party to give notice as provided herein shall not relieve the
indemnifying party of its obligations under the preceding subdivisions of this
Paragraph 6, except to the extent that the indemnifying party is actually
prejudiced by such failure to give notice. In case any such action is brought
against an indemnified party, unless in such indemnified party's reasonable
judgment a conflict of interest between such indemnified and indemnifying
parties may exist in respect of such claim, the indemnifying party will be
entitled to participate in and to assume the defense thereof, jointly with any
other indemnifying party similarly notified to the extent that it may wish, with
counsel reasonably satisfactory to such indemnified party, and after notice from
the indemnifying party to such indemnified party of its election so to assume
the defense thereof, the indemnifying party will not be liable to such
indemnified party for any legal or other expenses subsequently incurred by the
latter in connection with the defense thereof. No indemnifying party will
consent to entry of any judgment or enter into any settlement which does not
include as an unconditional term thereof the giving by the claimant or plaintiff
to such indemnified party of a release from all liability in respect to such
claim or litigation.
6.4 Other Indemnification. Indemnification similar to that specified
in the preceding subdivisions of this Paragraph 6 (with appropriate
modifications) shall be given by Newpark to each Participating Holder and each
underwriter of Shares, and by each Participating Holder to Newpark, with respect
to any required registration or other qualification of securities under any
federal or state law or regulation other than the Securities Act.
6.5 Contribution. If the indemnification provided for in Paragraphs
6.1, 6.2 or 6.4 is insufficient to hold harmless an indemnified party or is
unavailable to a party that would have been an indemnified party under any such
section in respect of any and all losses, claims, damages or liabilities, joint
or several (or actions or proceedings in respect thereof), referred to therein,
then each indemnified party and each party that would have been an indemnifying
party
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thereunder shall, in lieu of indemnifying such indemnified party, contribute to
the amount paid or payable by such indemnified party as a result of such losses,
claims, damages or liabilities (or actions or proceedings in respect thereof) in
such proportion as is appropriate to reflect the relative fault of the
indemnifying party, on the one hand, and such indemnified party, on the other,
in connection with the statements or omissions which resulted in such losses,
claims, damages or liabilities, joint or several (or actions or proceedings in
respect thereof). The relative fault shall be determined by reference to, among
other things, whether the untrue or alleged untrue statements of a material fact
or the omission or alleged omission to state a material fact relates to
information supplied by the indemnifying party or such indemnified party and the
parties' relative intent, knowledge, access to information and opportunity to
correct or prevent such statement or omission. Newpark and Holders agree that
it would not be just and equitable if contribution pursuant to this Paragraph
6.5 were determined by prorata allocation or by any other method of allocation
which does not take account of the equitable considerations referred to above in
this Paragraph 6.5. The amount paid or payable by an indemnified party as a
result of the losses, claims, damages or liabilities (or actions or proceedings
in respect thereof) referred to above in this Paragraph 6.5 shall include any
legal or other expenses reasonably incurred by such indemnified party in
connection with investigating or defending any such action or claim (which shall
be limited as provided in Paragraph 6.3 hereof if the indemnifying party has
assumed the defense of any such action in accordance with the provisions
thereof). No person guilty of fraudulent 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.
7. Rule 144 and Rule 145. Newpark covenants that it will duly and timely
file the reports required to be filed by it under the Securities Act and the
Exchange Act and the rules and regulations adopted by the SEC thereunder to the
extent required from time to time to enable Holders to sell the Shares without
registration under the Securities Act within the limitations of the exemption
provided by Rule 144 and Rule 145. None of such reports will contain any untrue
statement of a material fact or omit to state a material fact required to be
stated therein or necessary to make the statements therein, in the light of the
circumstances under which they are made, not misleading. Upon the request of
any Holder, Newpark will deliver to such Holder a written statement as to
whether it has complied with such requirements.
8. Miscellaneous.
8.1 Transfer of Rights Hereunder. The rights granted to the Holders
under this Agreement may be transferred to any transferee of the Shares other
than a transferee of Shares that have been registered under the Securities Act,
and, from and after any such transfer, the provisions of this Agreement
applicable to Holders shall be applicable to such transferees. The foregoing
notwithstanding, no transfer of the Shares may be made without registration
under the Securities Act unless and until the transferor delivers to Newpark an
opinion of counsel reasonably satisfactory to Newpark to the effect that such
transfer would not violate the registration provisions of the Securities Act and
any applicable state law. In connection with the transfer of such Shares,
Newpark may require each certificate representing Shares transferred to bear an
appropriate restrictive legend. Such restrictive legend may be removed when (i)
a
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registration statement with respect to the sale of the Shares represented
thereby shall have become effective under the Securities Act, (ii) such Shares
shall have been distributed to the public pursuant to Rule 144 or Rule 145 (or
any successor provision) under the Securities Act, or (iii) such Shares shall
have been otherwise transferred, new certificates for them not bearing a legend
restricting further transfer shall have been delivered by Newpark and subsequent
disposition of such Shares shall not require registration or qualification of
them under the Securities Act or any applicable state law.
8.2 Notices. Any and all notices, demands, requests or other
communications hereunder shall be in writing and shall be deemed duly given when
personally delivered to or transmitted by overnight express delivery or by
facsimile to and received by the party to whom such notice is intended, or in
lieu of such personal delivery or overnight express delivery or facsimile
transmission, 48 hours after deposit in the United States mail, first-class,
certified or registered, postage prepaid, return receipt requested, addressed to
the applicable party at the address provided below. The parties may change
their respective addresses for the purpose of this Paragraph 8.2 by giving
notice of such change to the other party in the manner which is provided in this
Paragraph 8.2.
Holders: At their respective addresses and facsimile
numbers, if any, set forth in Exhibit A
With a copy to:
Xxxx xxxXxxx, Esq.
Xxxxxxxxxx & xxxXxxx
000 Xxxxx Xxx Xxxxxxx Xxxxxxx
Xxxxxxx, Xxxxx 00000
Facsimile No.: (000) 000-0000
Newpark: 0000 Xxxxx Xxxxxxxx, Xxxxx 0000
Xxxxxxxx, XX 00000
Attention: Secretary
Facsimile No.: (000) 000-0000
With a copy to:
Xxxxxxx X. Xxxxxxx, Esq.
Xxxxx, Xxxxx & Xxxxxx LLP
0000 Xxxxxxxx Xxxxxxxxx, 0xx Xxxxx
Xxxxxxx Xxxxx, XX 00000
Facsimile No.: (000) 000-0000
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8.2 Severability. The provisions of this Agreement are severable,
and, if any one or more provisions may be determined to be judicially
unenforceable, in whole or in part, the remaining provisions, and any partially
unenforceable provisions, to the extent enforceable, shall nevertheless be
binding and enforceable upon the parties hereto.
8.3 Counterparts. This Agreement may be executed in one or more
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
8.4 Headings. The headings of the sections, subsections and
paragraphs of this Agreement have been added for convenience only and shall not
be deemed to be a part of this Agreement.
8.5 Governing Law. This Agreement shall be governed by and construed
in accordance with the laws of the State of Texas.
8.6 Entire Agreement. All other prior or contemporary
representations, warranties, covenants or agreements, if any, between the
parties hereto, or their representatives, with respect to the subject matter
hereof are superseded by and merged into this Agreement. This Agreement shall
constitute the entire understanding between the parties with respect hereto.
IN WITNESS WHEREOF, the undersigned have executed this Agreement as of
the date set forth on the first page hereof.
NEWPARK RESOURCES, INC.
By: /s/ Xxxxx X. Xxxx
-----------------------------
Xxxxx X. Xxxx, President
[Signatures of Holders contained on the following page]
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