EXHIBIT 1.1
SHAREHOLDER'S AGREEMENT AND REGISTRATION RIGHTS AGREEMENT
THIS SHAREHOLDER'S AGREEMENT AND REGISTRATION RIGHTS AGREEMENT (the
"Agreement") is entered into as of July 19, 2004 by and among Xxxxxx Oceanics,
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Inc., a Texas corporation (the "Company"), and Helmerich & Xxxxx International
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Drilling Co., a Delaware corporation ("H & P").
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RECITALS
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WHEREAS, H & P owns 3,000,000 shares of Common Stock (as hereinafter
defined) of the Company;
WHEREAS, H & P desires to sell up to 1,000,000 shares of Common Stock
through a registered Public Offering (as hereinafter defined), subject to market
conditions, and may determine to sell additional shares of Common Stock through
one or more registered Public Offerings from time-to-time thereafter;
WHEREAS, the Company agrees to file a Shelf Registration Statement (as
hereinafter defined), to effectuate the sale of shares of Common Stock by H & P
on the terms and conditions set forth herein;
WHEREAS, the Company and H & P wish to provide for certain arrangements
with respect to the registration of shares of Common Stock of the Company under
the Securities Act; and
AGREEMENT
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NOW, THEREFORE, in consideration of the mutual promises and obligations
contained herein, the parties agree as follows:
1. CERTAIN DEFINITIONS. As used in this Agreement, the following terms will
have the following respective meanings:
"Agreement" is defined in the Preamble.
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"Best Efforts" means the commercially reasonable efforts that a prudent
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Person desirous of achieving a result would use in similar circumstances to
ensure that such result is achieved as expeditiously as reasonably possible.
"Business Day" means any day that is not a Saturday, a Sunday or a day on
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which banks in the State of New York are generally closed for business.
"Common Stock" means the Common Stock, $1.00 par value, of the Company.
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"Commission" means the U.S. Securities and Exchange Commission, or any
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other federal agency at the time administering the Securities Act or the
Exchange Act.
"Company" is defined in the Preamble.
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"Covered Person" is defined in Section 5.1 of this Agreement.
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"Effectiveness Period" means the period beginning on the date on which the
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Shelf Registration Statement becomes effective, so as to permit the offering and
sale of Registrable Shares on a continuous basis, and ending on the date on
which the Selling Holder shall have sold or otherwise disposed of all of the
Registrable Shares included in such Shelf Registration Statement, not to exceed
two (2) years from the date on which the Shelf Registration Statement becomes so
effective (subject to the extension of such period pursuant to Sections 3.9
and/or 3.11 hereof).
"Exchange Act" means the Securities Exchange Act of 1934, and any successor
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to such statute, and the rules and regulations of the Commission issued under
such Act, as they each may, from time to time, be amended and in effect.
"H & P" is defined in the Preamble.
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"Holder" means any Person owning Registrable Shares.
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"Losses" and "Loss" are defined in Section 5.1 of this Agreement.
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"Majority in Interest of the Registrable Shares" means shares held by H & P
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immediately prior to the execution of this Agreement.
"Person" means any individual, partnership, corporation, company,
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association, trust, joint venture, limited liability company, unincorporated
organization, entity or division, or any government, governmental department or
agency or political subdivision thereof.
"Public Offering" means a public offering and sale of Common Stock for cash
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pursuant to an effective Registration Statement.
"Register," "registered," and "registration" refer to a registration
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effected by preparing and filing one or more Registration Statements, amendments
or supplements to such Registration Statements, or similar documents in
compliance with the Securities Act and any applicable rules and regulations
promulgated thereunder (including, in the case of a Registration Statement on
Form S-3, Rule 415) and the automatic effectiveness or the declaration or
ordering of effectiveness of such Registration Statement, an amendment or
supplement to such Registration Statement, or similar document by the
Commission.
"Registrable Shares" means all of the shares of Common Stock currently
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issued or issued at any future time to H & P, including by way of stock dividend
or stock split or in connection with a combination of shares, recapitalization,
merger, consolidation, other reorganization or otherwise.
"Registration Expenses" means all expenses incurred by the Company in
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complying with Sections 2 and 3 hereof, including, without limitation, all
registration and filing fees, listing fees, all fees and expenses of complying
with securities or blue sky laws, all printing expenses, fees and disbursements
of counsel for the Company and its independent public accountants, including the
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expenses of any special audits required by or incident to such performance and
compliance, and legal fees and disbursements of the Selling Holder, and
including underwriting discounts, selling commissions and applicable transfer
taxes, if any.
"Registration Statement" means a registration statement filed by the
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Company with the Commission for a Public Offering under the Securities Act
(other than a registration statement on Form S-8 or Form S-4, or any other form
for a similar limited purpose).
"Rule 144" means Rule 144 promulgated under the Securities Act, and any
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successor rule or regulation thereto, and in the case of any referenced section
of such rule, any successor section thereto, collectively and as from time to
time amended and in effect.
"Rule 144A" means Rule 144A promulgated under the Securities Act, and any
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successor rule or regulation thereto, and in the case of any referenced section
of such rule, any successor section thereto, collectively and as from time to
time amended and in effect.
"Rule 415" means Rule 415 promulgated under the Securities Act, or any
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successor rule or regulation providing for offering securities on a continuous
or delayed basis.
"Securities Act" means the Securities Act of 1933, and any successor to
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such statute, and the rules and regulations of the Commission issued under such
Act, as they each may, from time to time, be amended and in effect.
"Selling Holder" means any Holder on whose behalf Registrable Shares are
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registered pursuant to Section 2 hereof.
"Shelf Registration Statement" means a "shelf" Registration Statement under
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Rule 415.
"Simultaneous Public Offering" is defined in Section 2.2 of this Agreement.
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2. REQUIRED REGISTRATION AND PUBLIC OFFERINGS.
2.1. Shelf Registration. As soon as reasonably practicable, the Company
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will file a Shelf Registration Statement relating to the sale of the Registrable
Shares by the Holders from time-to-time in accordance with the methods of
distribution elected by such Holders and set forth in such Shelf Registration
Statement.
2.2. Public Offerings. The parties agree that, (i) subject to Section 4.2
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hereof and market conditions, up to 1,000,000 Registrable Shares (such number to
be equitably adjusted to reflect any stock split, reverse stock split or similar
transaction) may be offered for sale concurrently with a primary offering of up
to 1,000,000 shares (such number to be equitably adjusted to reflect any stock
split, reverse stock split or similar transaction) of Common Stock by the
Company (the "Simultaneous Public Offering") and (ii) thereafter, subject to
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Section 3.10 hereof, the Holders may determine to offer for sale any Registrable
Shares not sold in the Simultaneous Public Offering in accordance with the
methods of distribution elected by the Holders and set forth in the Shelf
Registration Statement, including any amendments and supplements thereto.
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2.3. Selection of Underwriter. The Company shall select the investment
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banker(s) and manager(s) to administer the Simultaneous Public Offering. The
Selling Holders shall select the investment banker(s) and manager(s) to
administer any subsequent Public Offering solely of Registrable Shares, subject
to the approval thereof by the Company, which approval shall not be unreasonably
withheld.
3. REGISTRATION PROCEDURES. The Company is required by the provisions of this
Agreement to use its Best Efforts to effect the registration of the Registrable
Shares under the Securities Act, and will take the actions described below in
this Section 3.
3.1. Registration Statement. The Company will prepare and file with the
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Commission a Shelf Registration Statement with respect to the Registrable Shares
and use its Best Efforts to cause such Shelf Registration Statement to become
effective as promptly as practicable, but in any event within 60 days after the
filing of such Shelf Registration Statement.
3.2. Amendments and Supplements. The Company will prepare and file with the
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Commission such amendments (including post-effective amendments) and supplements
to such Shelf Registration Statement and the prospectus used in connection
therewith as may be necessary to keep such Shelf Registration Statement
effective during the Effectiveness Period, and during such period the Company
will comply with the provisions of the Securities Act with respect to the
disposition of all Registrable Shares and other securities, if any, covered by
such Shelf Registration Statement until the end of the Effectiveness Period.
3.3. Cooperation. The Company will use its Best Efforts to (i) cooperate
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with the Selling Holder in the disposition of the Registrable Shares covered by
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the Shelf Registration Statement, (ii) enter into and perform customary
agreements related to the registration and disposition of the Registrable Shares
(including underwriting agreements in customary form) and (iii) cause key
executives of the Company and its subsidiaries to participate under the
direction of the managing underwriter in one or more "road shows" scheduled by
such managing underwriter in such locations and of such duration as in the
judgment of such managing underwriter are appropriate for underwritten
offerings; provided, that any such "road shows" shall not exceed five (5)
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business days, shall not include more than one "road show" per year and (with
the exception of any "road show" conducted in connection with the Simultaneous
Public Offering) shall be at the expense of the Selling Holder.
3.4. Copies of Prospectus. The Company will furnish to each Selling Holder
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(i) promptly after such Shelf Registration Statement is filed with the
Commission, such reasonable number of copies of the prospectus, including a
preliminary prospectus, in conformity with the requirements of the Securities
Act, and any amendments thereto, including financial statements and schedules
and all exhibits, (ii) upon the effectiveness of such Shelf Registration
Statement, such number of copies of the prospectus included in such Shelf
Registration Statement, including all amendments and supplements thereto, and
(iii) such other documents, in each case, as the Selling Holder may reasonably
request in order to facilitate the Public Offering of the Registrable Shares
owned by the Selling Holder.
3.5. Blue Sky Qualification. Prior to the Public Offering of any
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Registrable Shares, the Company will use its Best Efforts to register or qualify
the Registrable Shares covered by the Shelf Registration Statement under the
securities or "blue sky" laws of such states or jurisdictions in the United
States as the Selling Holder may reasonably request, and do any and all other
acts and things that may be necessary or desirable to enable the Selling Holder
to consummate the public sale or other disposition in such jurisdictions of the
Registrable Shares covered by the Shelf Registration Statement, including
preparing and filing in those jurisdictions such amendments (including
post-effective amendments) and supplements to such registrations and
qualifications as may be necessary to maintain the effectiveness thereof during
the Effectiveness Period; provided, however, that the Company will not be
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obligated to file any general consent to service of process or to qualify as a
foreign corporation in any jurisdiction in which it is not so qualified or to
subject itself to taxation in respect of doing business in any jurisdiction in
which it would not otherwise be so subject. The Company shall promptly notify
each Selling Holder of the receipt by the Company of any notification with
respect to the suspension of the registration or qualification of any
Registrable Shares for sale under the securities or "blue sky" laws of any
jurisdiction in the United States or its receipt of notice of the initiation or
threat of any proceeding for such purpose.
3.6. Opinion of Counsel; Comfort Letter. In the case of any underwritten
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offering, the Company will use its Best Efforts to obtain all legal opinions,
auditors' consents and comfort letters and experts' cooperation as may be
required, including furnishing to each Selling Holder and each of the
underwriters of such Registrable Shares a signed counterpart, addressed or
confirmed to such Selling Holder and each of the underwriters, of (a) an opinion
of counsel for the Company (in form, scope and substance reasonably satisfactory
to the managing underwriter and the Selling Holder) and (b) a "cold comfort"
letter signed by the independent public accountants who have certified the
Company's financial statements included or incorporated by reference in such
Shelf Registration Statement, covering substantially the same matters as are
customarily covered in opinions of issuer's counsel and in accountants' letters
delivered to underwriters in underwritten public offerings of securities.
3.7. Listing and Transfer Agent. The Company will cause all Registrable
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Shares covered by the Shelf Registration Statement to be listed on each
securities exchange or automated quotation system on which the Common Stock is
then listed. The Company will provide and cause to be maintained a transfer
agent and registrar for all Registrable Shares covered by the Shelf Registration
Statement not later than the effective date of such Shelf Registration
Statement.
3.8. General Compliance with Federal Securities Laws; Section 11(a) Earning
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Statement. The Company will use its Best Efforts to comply with the Securities
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Act, the Exchange Act and any other applicable rules and regulations of the
Commission, and make available to its securities holders, as soon as reasonably
practicable, an earning statement covering the period of at least 12 months
after the effective date of such Shelf Registration Statement, which earnings
statement shall be in a form complying with and satisfying Section 11(a) of the
Securities Act and any applicable regulations thereunder, including the
provisions of Rule 158.
3.9. Notice of Prospectus Defects. The Company will immediately notify the
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Selling Holder, and (if requested by the Selling Holder) confirm such notice in
writing, of the happening of any event, as a result of which the prospectus
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included or to be included in the Shelf Registration Statement, as then in
effect, includes an untrue statement of a material fact or omits to state any
material fact required to be stated therein or necessary to make the statements
therein not misleading in the light of the circumstances then existing (provided
that such notice shall not contain any material, non-public information). The
Company will promptly revise such prospectus as may be necessary so that such
prospectus shall not include an untrue statement of a material fact or omit to
state such 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. The Company will promptly deliver copies of such revised prospectus to
the Selling Holder. Following receipt of the revised prospectus, the Selling
Holder will be free to resume making offers of the Registrable Shares. The
Company will extend the period during which the Shelf Registration Statement
must be kept effective pursuant to this Agreement by the number of days during
the period from and including the date of giving such notice to and including
the date when the Selling Holder shall have received copies of the revised
prospectus.
3.10. H & P Lock-Up. H & P, Holder or Selling Holder will refrain, without
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the consent of the managing underwriter, from the date of execution of this
Agreement to 180 days after the completion of the Simultaneous Public Offering,
from directly or indirectly selling, offering to sell, granting any option for
the sale of, pledging, or otherwise disposing of any Common Stock, whether in
accordance with the terms of Rule 144, Rule 144A or otherwise (except as part of
such Simultaneous Public Offering); provided, however, that should there be no
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Simultaneous Public Offering, should there be an underwriter's cutback (as
described in Section 4.2 hereof) such that H & P, Holder or Selling Holder shall
not include any Registrable Shares in the Simultaneous Public Offering or should
H & P, Holder or Selling Holder notify the Company in writing that it does not
wish to proceed with the sale of Registrable Shares in the Simultaneous Public
Offering and irrevocably waives its right to participate in the Simultaneous
Public Offering, H & P, Holder or Selling Holder agrees to not effect any Public
Offering or distribution (including sales pursuant to Rule 144, Rule 144A or
otherwise) of Common Stock during the seven days prior to and the 90-day period
beginning on the effective date of any underwritten registered Public Offering
of equity securities of the Company or securities convertible or exchangeable
into or exercisable for equity securities of the Company, unless the
underwriters managing the registered Public Offering otherwise agree, and H & P,
Holder or Selling Holder will deliver an undertaking to the managing
underwriters (if requested) consistent with the covenants in this Section 3.10.
3.11. Delay of Registration and Suspension of Offering. If at any time
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after the Shelf Registration Statement has become effective, the Company is
engaged in any plan, proposal or agreement with respect to any financing,
acquisition, recapitalization, reorganization or other material transaction or
development the public disclosure of which would be detrimental to the Company,
then the Company may direct that use of the prospectus contained in the Shelf
Registration Statement be suspended, as applicable, for a period of up to 30
days. The Company will notify all Holders requesting the registration or all
Selling Holders, as the case may be, of the delay or suspension. Each Selling
Holder will immediately discontinue any sales of Registrable Shares pursuant to
such Registration Statement until such Selling Holder has received copies of a
supplemented or amended prospectus or until such Selling Holder is advised in
writing by the Company that the then-current prospectus may be used and has
received copies of any additional or supplemental filings that are incorporated
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or deemed incorporated by reference in such prospectus. The Company will extend
the period during which the Shelf Registration Statement must be kept effective
pursuant to this Agreement by the number of days during the period from and
including the date of giving such notice to and including the date when the
Selling Holder shall have received copies of the revised prospectus or notice
from the Company that the then-current prospectus may be used.
3.12. Participation by Selling Security Holders. In connection with the
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preparation and filing of the Shelf Registration Statement with respect to the
Registrable Shares, and before filing any such Shelf Registration Statement or
any other document in connection therewith, the Company must give the
participating Holders and their underwriters, if any, and their respective
counsel and accountants, the opportunity to participate in the preparation of
such Shelf Registration Statement, each prospectus included therein or filed
with the Commission, each amendment thereof or supplement thereto and any
related underwriting agreement or other document to be filed, and give each of
the aforementioned Persons such access to its books and records and such
opportunities to discuss the business of the Company with its officers and the
independent public accountants who have certified its financial statements as
shall be necessary, in the opinion of such Holders, underwriters, counsel or
accountants, to conduct a reasonable investigation within the meaning of the
Securities Act.
3.13. Requests by Selling Holder. If requested by a Selling Holder, the
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Company shall (i) as soon as practicable incorporate in a prospectus supplement
or post-effective amendment such information as a Selling Holder reasonably
requests to be included therein relating to the sale and distribution of
Registrable Shares, including, without limitation, information with respect to
the number of Registrable Shares being offered or sold, the purchase price being
paid therefor and any other terms of the offering of the Registrable Shares to
be sold in such other offering provided that such information is required to be
included in the Shelf Registration Statement by the Securities Act; (ii) as soon
as practicable make all required filings of such prospectus supplement or
post-effective amendment after being notified of the matters to be incorporated
in such prospectus supplement or post-effective amendment; and (iii) as soon as
practicable, supplement or make amendments to any Registration Statement if
reasonably requested by a Selling Holder of such Registrable Shares.
3.14. Stop Orders. The Company shall use its Best Efforts to prevent the
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issuance of any stop order or other suspension of effectiveness of the Shelf
Registration Statement, or the suspension of the qualification of any of the
Registrable Shares for sale in any jurisdiction and, if such an order or
suspension is issued, to obtain the withdrawal of such order or suspension at
the earliest possible moment and to notify each Selling Holder of the issuance
of such order and the resolution thereof or its receipt of actual notice of the
initiation or threat of any proceeding for such purpose.
3.15. Certificates. The Company shall reasonably cooperate with the Selling
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Holder and, to the extent applicable, facilitate the timely preparation and
delivery of certificates representing the Registrable Shares to be offered
pursuant to the Shelf Registration Statement and enable such certificates to be
in such denominations or amounts, as the case may be, as the Selling Holder may
reasonably request and registered in such names as the Selling Holder may
request.
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3.16. Notice of Effectiveness. Within two business days after the Shelf
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Registration Statement, or any amendment thereto, that includes the Registrable
Shares is declared effective by the Commission, the Company shall deliver, and
shall cause legal counsel for the Company to deliver, to the transfer agent for
such Registrable Shares (with copies to the Selling Holder) written confirmation
that such Shelf Registration Statement has been declared effective by the
Commission.
3.17. Governmental Approvals. The Company shall use its Best Efforts to
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cause the Registrable Shares covered by the Shelf Registration Statement to be
registered with or approved by such other governmental agencies or authorities
as may be necessary to consummate the disposition of such Registrable Shares.
3.18. Requests for Information. In connection with the Shelf Registration
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Statement, H & P, Holder and Selling Holder shall furnish to the Company in
writing such information as the Company reasonably requests in writing for use
in connection with the Shelf Registration Statement or prospectus.
4. CERTAIN OTHER PROVISIONS.
4.1. Additional Procedures. Selling Holder will take all such actions and
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execute all such documents and instruments that are reasonably requested in
writing by the Company to effect the sale of their shares in any Public
Offering, including, without limitation, being parties to the underwriting
agreement entered into by the Company and any other Selling Holder in connection
therewith. In addition, each Selling Holder will furnish to the Company such
information regarding such Selling Holder and the distribution proposed by such
Selling Holder as the Company may reasonably request in writing and as will be
required in connection with any registration, qualification or compliance
referred to in Section 3.
4.2. Underwriter's Cutback. Notwithstanding any other provision of this
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Agreement, if the managing underwriter determines that the inclusion of all
shares requested to be offered in the Simultaneous Public Offering would
materially and adversely affect the offering, the managing underwriter may limit
the number of Registrable Shares to be included in such offering. In such case,
the number of shares that are entitled to be included in the Simultaneous Public
Offering will be reduced to a number deemed satisfactory by the managing
underwriter so as to include, first, up to 1,000,000 shares of Common Stock
offered by the Company, second, up to 1,000,000 Registrable Shares, if any, and,
thereafter, shares of Common Stock offered by the Company, if any.
4.3. Up-size and Over-Allotment. In the case of an up-size in the number of
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shares of Common Stock to be included in the Simultaneous Public Offering, such
that the number of shares of Common Stock sold in the Simultaneous Public
Offering exceeds 2,000,000 shares, all such shares of Common Stock in excess of
2,000,000 shares will be offered by the Company, with no increase in the
Registrable Shares to be included in the Simultaneous Public Offering. In the
case of the exercise of an over-allotment by the underwriters in the
Simultaneous Public Offering, the number of shares of Common Stock that are
entitled to be included in the Simultaneous Public Offering will be increased
such that, first, the Company shall be entitled to offer an aggregate of up to
1,000,000 shares of Common Stock in the Simultaneous Public Offering, second,
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the Holders shall be entitled to offer an aggregate of up to 1,000,000
Registrable Shares, if any, in the Simultaneous Public Offering and, thereafter,
the Company shall be entitled to offer all shares of Common Stock in excess of
2,000,000 shares, if any, with no further increase in the number of Registrable
Shares entitled to be included in the Simultaneous Public Offering.
4.4. Registration Expenses. The Company hereby agrees to pay all expenses
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incurred for its sole benefit pursuant to this Agreement. H & P, Holder and
Selling Holder agree to pay all expenses incurred for their sole benefit
pursuant to this Agreement. With respect to the Simultaneous Public Offering,
any expenses which are for the joint benefit of the Company and H & P, Holder or
Selling Holder shall be allocated based upon the number of shares of Common
Stock sold by each such Person in the Simultaneous Public Offering. In any
event, H & P, Holder and Selling Holder shall pay filing fees allocable to the
Registrable Shares, fees and expenses, if any, of counsel or other advisers to H
& P, Holder or Selling Holder or underwriting discounts, brokerage fees and
commissions allocable to the Registrable Shares.
4.5. Termination of Status as Registrable Shares. Registrable Shares will
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cease to be Registrable Shares and cease to have the rights accorded to such
shares under this Agreement upon the earliest to occur of the following events:
(x) such shares shall have been sold pursuant to an effective Registration
Statement under the Securities Act, (y) such shares shall have been sold
pursuant to a transaction under Rule 144, Rule 144A or (except for sales to
Helmerich & Xxxxx, Inc. or any of its wholly-owned subsidiaries) otherwise or
(z) the termination of the Effectiveness Period.
4.6. Limitations on Subsequent Registration Rights. The Company will not,
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without the prior written consent of Holders of at least a majority of the
Registrable Shares, enter into any agreements with any holder or prospective
holder of Company securities that grant such holder or prospective holder rights
to include securities of the Company in any Registration Statement, unless such
rights are subordinated to the rights granted to the Holders under this
Agreement.
5. INDEMNIFICATION.
5.1. Company Indemnification. To the fullest extent permitted by law, the
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Company will indemnify and hold harmless each Selling Holder, its partners,
directors, officers, employees and agents and each other Person, if any, who
controls such Selling Holder (within the meaning of the Securities Act or the
Exchange Act) and each such controlling Person's partners, directors, officers,
employees and agents (each such Person being a "Covered Person") from and
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against any and all losses, claims, damages, liabilities, costs (including,
without limitation, reasonable attorneys' fees) and expenses (collectively,
"Losses" and individually a "Loss"), joint or several, to which such Covered
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Person may become subject, insofar as such Losses (or actions in respect
thereof) arise out of or are based upon (a) any untrue statement or alleged
untrue statement of any material fact contained in any Registration Statement
under which such Registrable Shares were registered under the Securities Act,
any preliminary or final prospectus contained in the Registration Statement, or
any amendment or supplement to such Registration Statement or (b) the omission
or alleged omission to state a material fact required to be stated therein or
necessary to make the statements therein not misleading; and the Company will
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reimburse such Covered Person for any legal or any other expenses reasonably
incurred by such Covered Person in connection with investigating or defending
any such Loss or action; provided, however, that the Company will not be liable
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to any Covered Person in any such case (x) to the extent that any such Loss
arises out of or is based upon any untrue statement or omission made in such
Registration Statement or prospectus, or any such amendment or supplement, in
reliance upon and in conformity with information furnished to the Company, in
writing, by or on behalf of such Covered Person or the Selling Holder
specifically for use in the preparation thereof or (y) in the case of a sale
directly by a Selling Holder (including a sale of such Registrable Shares
through any underwriter retained by such Selling Holder engaging in a
distribution solely on behalf of such Selling Holder), such untrue statement or
omission was contained in a preliminary prospectus and corrected in a final or
amended prospectus, and such Selling Holder failed to deliver a copy of the
final or amended prospectus at or prior to the confirmation of the sale of the
Registrable Shares to the person asserting any such Loss, in any case in which
such delivery is required by the Securities Act.
5.2. Seller Indemnification. In the event of any registration of any of the
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Registrable Shares under the Securities Act pursuant to this Agreement, then to
the fullest extent permitted by law, each Selling Holder will indemnify and hold
harmless the Company, each of its directors, officers, employees and agents and
each Person (other than such Selling Holder), if any, who controls the Company
within the meaning of the Securities Act or the Exchange Act, against any Losses
to which the Company, such directors, officers, employees and agents or
controlling Person may become subject, insofar as such Losses (or actions in
respect thereof) arise out of or are based upon (a) any untrue statement of a
material fact contained in any Registration Statement under which such
Registrable Shares were registered under the Securities Act, any preliminary or
final prospectus contained in the Registration Statement, or any amendment or
supplement to the Registration Statement or (b) the omission to state a material
fact required to be stated therein or necessary to make the statements therein
not misleading, in each case only if the statement or omission was made in
reliance upon and in conformity with information furnished in writing to the
Company by or on behalf of such Selling Holder, specifically for use in
connection with the preparation of such Registration Statement, prospectus,
amendment or supplement.
5.3. Notice of Claims, etc. Promptly after receipt by an indemnified party
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of notice of the commencement of any action or proceeding involving a claim of
the type referred to in the foregoing provisions of this Section 5, such
indemnified party will, if a claim in respect thereof is to be made against any
indemnifying party, give written notice to each such indemnifying party of the
commencement of such action; provided, however, that the failure or delay of any
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indemnified party to give such notice will not relieve such indemnifying party
of its obligations under this Section 5, except to the extent that such
indemnifying party is materially prejudiced by such failure or delay. In case
any such action is brought against an indemnified party, each 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
(subject to the following sentence) after written notice from an indemnifying
party to such indemnified party of its election so to assume the defense
thereof, such 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. The indemnified party may participate in
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such defense at such party's expense; provided, however, that the indemnifying
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party will pay such expense if representation of such indemnified party by the
counsel retained by the indemnifying party would be inappropriate due to actual
or potential conflict of interests between the indemnified party and any other
party represented by such counsel in such proceeding; provided, further, that in
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no event will the indemnifying party be required to pay the expenses of more
than one law firm as counsel for all indemnified parties pursuant to this
sentence. If, within 30 days after receipt of the notice, such indemnifying
party has not elected to assume the defense of the action, such indemnifying
party will be responsible for any and all legal or other expenses reasonably
incurred by such indemnified party in connection with the defense of the action,
suit, investigation, inquiry or proceeding. An indemnifying party may, in the
defense of any such claim or litigation, consent to the entry of a judgment or
enter into a settlement without the consent of the indemnified party only if (i)
such judgment or settlement contains a general release of the indemnified party
in respect of such claims or litigation and (ii) such release is in form and
substance reasonably satisfactory to the indemnified party.
5.4. Contribution. If the indemnification provided for in Sections 5.1 or
------------
5.2 hereof is unavailable to a party that would have been an indemnified party
under any such Section in respect of any Losses (or actions or proceedings in
respect thereof) referred to therein, then each party that would have been an
indemnifying party thereunder will, in lieu of indemnifying such indemnified
party, contribute to the amount paid or payable by such indemnified party as a
result of such Losses (or actions or proceedings in respect thereof) in such
proportion as is appropriate to reflect the relative fault of such 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 (or actions or
proceedings in respect thereof). The relative fault will 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 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. The parties agree
that it would not be just and equitable if contribution pursuant to this Section
5.4 were determined by pro rata allocation or by any other method of allocation
that does not take account of the equitable considerations referred to in the
preceding sentence. The amount paid or payable by a contributing party as a
result of the losses, claims, damages or liabilities (or actions or proceedings
in respect thereof) referred to in this Section 5.4 will include any legal or
other expenses reasonably incurred by such indemnified party in connection with
investigating or defending any such action or claim. No Person guilty of
fraudulent misrepresentation (within the meaning of Section 11(f) of the
Securities Act) will be entitled to contribution from any Person who was not
guilty of such fraudulent misrepresentation.
6. MISCELLANEOUS.
6.1. Reports under the Exchange Act. With a view to making available to the
------------------------------
Holders the benefits of Rule 144 and any other rule or regulation of the
Commission that may at any time permit such Holder to sell securities of the
Company to the public without registration and with a view to making it possible
for Holders to register the Registrable Shares pursuant to a Registration
Statement on Form S-3, the Company agrees from the date hereof to use its best
efforts to:
11
(a) make and keep public information available, as those terms are
understood and defined in Rule 144 under the Securities Act;
(b) file with the Commission in a timely manner all reports and other
documents required of the Company under the Securities Act and the Exchange
Act, so long as the Company remains subject to such requirements and the
filing of such reports and other documents are required for the applicable
provisions of Rule 144 to apply;
(c) file with the Commission in a timely manner all reports and other
documents required of the Company under the Securities Act and the Exchange
Act and take such other actions as will permit Holders to use Form S-3 for
the resale of their Registrable Shares; and
(d) furnish to any Holder forthwith upon request (i) a written
statement by the Company as to its compliance with the reporting
requirements of Rule 144, the Securities Act and the Exchange Act, or as to
its qualification as a registrant whose securities may be resold pursuant
to Form S-3 (at any time after it so qualifies), (ii) a copy of the most
recent annual or quarterly report of the Company and such other reports and
documents so filed by the Company and (iii) such other information as may
be reasonably requested in availing any Holder of any rule or regulation of
the Commission that permits the selling of any such securities without
registration or pursuant to such form.
6.2. Transfer of Rights. The rights set forth herein are non-transferable
------------------
except to Helmerich & Xxxxx, Inc. or any of its wholly-owned subsidiaries, and
except as set forth in Article 6 hereof, this Agreement is made solely for the
benefit of H & P and such permitted transferees.
6.3. Governing Law; Waiver of Jury Trial. This Agreement, the rights of the
-----------------------------------
parties and all claims, actions, causes of action, suits, litigation,
controversies, hearings, charges, complaints or proceedings arising in whole or
in part under or in connection herewith, will be governed by and construed in
accordance with the domestic substantive laws of the State of Texas, without
giving effect to any choice or conflict of law provision or rule that would
cause the application of the laws of any other jurisdiction. EXCLUSIVE
JURISDICTION SHALL LIE IN HOUSTON, XXXXXX COUNTY, TEXAS. The parties hereto
hereby waive any right to a jury trial in connection with any litigation
pursuant to this Agreement.
6.4. Entire Agreement; Amendment and Waiver. This Agreement, together with
--------------------------------------
any documents, instruments and certificates explicitly referred to herein,
constitutes the entire agreement among the parties hereto with respect to the
subject matter hereof and supersedes any and all prior discussions,
negotiations, proposals, undertakings, understandings and agreements, whether
written or oral, with respect thereto. Any term of this Agreement may be amended
or terminated and the observance of any term of this Agreement may be waived
(either generally or in a particular instance and either retroactively or
prospectively) with the written consent of the Company and a Majority in
Interest of the Registrable Shares. Any such amendment, termination or waiver
will be binding on all Holders.
12
6.5. Notices. All notices, requests, demands, claims and other
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communications required or permitted to be delivered, given or otherwise
provided under this Agreement must be in writing and must be delivered, given or
otherwise provided:
(a) by hand (in which case, it will be effective upon delivery);
(b) by facsimile (in which case, it will be effective upon receipt of
confirmation of good transmission); or
(c) by overnight delivery by a nationally recognized courier service
(in which case, it will be effective on the Business Day after being
deposited with such courier service);
in each case, to the address (or facsimile number) listed below:
If to the Company, to it at:
Xxxxxx Oceanics, Inc.
00000 Xxxx Xxx Xxxxx Xxxxx, Xxxxx 000
Xxxxxxx, XX 00000
Facsimile No.: (000) 000-0000
Attention: Xxxxx X. Xxxxxxx
with a copy to:
Xxxxxxxxxxx & Price, LLP
0000 XxXxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxx 00000-0000
Facsimile No.: (000) 000-0000
Attention: W. Xxxxxx Xxxxxx
If to H & P, to it at:
Helmerich & Xxxxx International Drilling, Co.
0000 Xxxxx Xxxxxxx Xxxxxx
Xxxxx, Xxxxxxxx 00000
Telephone No.: (000) 000-0000
Facsimile No.: (000) 000-0000
Attention: Xxxx Xxxxxxxxx
13
with a copy to:
Helmerich & Xxxxx International Drilling, Co.
0000 Xxxxx Xxxxxxx Xxxxxx
Xxxxx, Xxxxxxxx 00000
Telephone No.: (000) 000-0000
Facsimile No.: (000) 000-0000
Attention: Xxxxxx X. Xxxxxx
Each of the parties to this Agreement may specify a different address or
facsimile number by giving notice in accordance with this Section 6.5 to each of
the other parties hereto.
6.6. Binding Effect; Assignment. This Agreement will be binding upon and
--------------------------
inure to the benefit of the personal representatives, successors and assigns of
the respective parties hereto.
6.7. Amendments and Waivers. The failure of any party to enforce any of the
----------------------
provisions of this Agreement shall in no way be construed as a waiver of such
provisions and shall not affect the right of such party thereafter to enforce
each and every provision of this Agreement in accordance with its terms. No
modification, amendment, or waiver of any provision of this Agreement shall be
effective against the Company or H & P except by written agreement signed by the
Company and H & P.
6.8. Severability. If any provision of this Agreement is found by any court
------------
of competent jurisdiction to be invalid or unenforceable, the parties hereby
waive such provision to the extent that it is found to be invalid or
unenforceable. Such provision will, to the maximum extent allowable by law, be
modified by such court so that it becomes enforceable, and, as modified, will be
enforced as any other provision hereof, all the other provisions hereof
continuing in full force and effect.
6.9. Headings. The headings contained in this Agreement are for convenience
--------
purposes only and will not in any way affect the meaning or interpretation
hereof.
6.10. Counterparts. This Agreement may be executed in any number of
------------
counterparts, each of which will be deemed an original, but all of which
together will constitute but one and the same instrument.
[Signature Pages Follow]
14
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date
first above written.
XXXXXX OCEANICS, INC.
By: /S/ Xxxx X. Xxxxx
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Name: Xxxx X. Xxxxx
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Title: President & Chief Executive Officer
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HELMERICH & XXXXX INTERNATIONAL
DRILLING CO.
By: /S/ Xxxx Xxxxxxxxx
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Name: Xxxx Xxxxxxxxx
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Title: Chief Executive Officer
------------------------------------
