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EXHIBIT 10.25
NOBLE DRILLING CORPORATION
REGISTRATION RIGHTS AGREEMENT
This REGISTRATION RIGHTS AGREEMENT dated as of July 1, 1996 (this
"Agreement") by and between NOBLE DRILLING CORPORATION, a Delaware corporation
(the "Company"), and ROYAL NEDLLOYD N.V., a Netherlands corporation (the
"Stockholder");
W I T N E S S E T H:
WHEREAS, the Company, the Stockholder and Neddrill Holding B.V., a
Netherlands corporation and a wholly owned subsidiary of the Stockholder
("Seller"), are parties to that certain Agreement of Sale and Purchase dated as
of April 25, 1996 (the "Purchase Agreement") pursuant to which the Company will
purchase the Assets (as defined in the Purchase Agreement) from Seller and its
subsidiaries (the "Acquisition"); and
WHEREAS, the Purchase Price (as defined in the Purchase Agreement)
payable by the Company under the Purchase Agreement includes 5,000,000 shares
of common stock, par value $.10 per share, of the Company ("Common Stock"),
which the Stockholder has agreed it will not, directly or indirectly, sell,
assign or otherwise transfer prior to the date that is nine months after the
Closing Date (as defined in the Purchase Agreement); and
WHEREAS, the Company has agreed to provide to the Stockholder the
limited registration rights set forth herein;
NOW, THEREFORE, in consideration of the premises and the mutual terms,
covenants and conditions herein contained, and intending to be legally bound
hereby, the parties hereto hereby agree as follows:
ARTICLE I
REGISTRATION RIGHTS
The Company and the Stockholder covenant and agree as follows:
1.1 Definitions. For purposes of this Agreement:
(a) The terms "register," "registered" and "registration" refer to a
registration of securities effected by preparing and filing a registration
statement or similar document in compliance with the Securities Act (as defined
below), and the declaration or ordering of effectiveness of such registration
statement or document.
(b) The term "Registrable Securities" means (i) the Common Stock
received by the Stockholder pursuant to the Acquisition and (ii) a dividend or
other distribution with respect to, or in exchange for or in replacement of,
such Common Stock.
(c) The term "Restricted Securities" means the Registrable Securities
upon original issuance thereof, subject to the provisions of Section 1.2
hereof.
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(d) The term "Person" means an individual, partnership, corporation,
limited liability company, trust or unincorporated organization, or government
or agency or political subdivision thereof.
(e) The term "Board" means the Board of Directors of the Company.
(f) The term "Commission" means the Securities and Exchange
Commission.
(g) The term "Securities Act" means the Securities Act of 1933, as
amended, and the term "Exchange Act" means the Securities Exchange Act of 1934,
as amended.
(h) The term "Xxxxx Agreement" means that certain Registration
Agreement dated as of April 22, 1994 between the Company and Xxxxxx X. Xxxxx.
(i) The term "PAJW Holder" means any Person holding "Registrable
Securities" under that certain Registration Rights Agreement dated as of
September 15, 1994 between the Company and P.A.J.W. Corporation (the "PAJW
Agreement").
(j) The term "Best Efforts" means a Person's best efforts in
accordance with reasonable commercial practice and without the incurrence of
unreasonable expense.
1.2 Securities Subject to this Agreement. The securities entitled to
the benefits of this Agreement are the Registrable Securities but with respect
to any particular Registrable Security, only so long as such security continues
to be a Restricted Security. A Registrable Security ceases to be a Restricted
Security when (a) it has been effectively registered under the Securities Act
and disposed of in accordance with the registration statement covering it, (b)
it is sold pursuant to Rule 144 or Rule 145 (or any similar provision then in
force) under the Securities Act or (c) it has otherwise been transferred by the
Stockholder.
1.3 Registration on Request.
(a) If, at any time after April 1, 1997 and prior to July 1, 1999,
the Company shall receive a written request from the Stockholder that the
Company file a registration statement under the Securities Act covering the
registration of Registrable Securities, then the Company shall, subject to the
limitations of Sections 1.3(c), 1.5 and 1.7 hereof, effect the registration of
all Registrable Securities that the Stockholder requests to be registered
within 30 days of the receipt by the Company of such written request by means
of a shelf registration statement on any appropriate form under the Securities
Act for an offering to be made on a continuous basis pursuant to Rule 415 under
the Securities Act. The Company agrees to use its Best Efforts to keep such
shelf registration statement continuously effective for a period of six months
following the date on which such shelf registration statement is declared
effective (plus the number of days of any discontinuance described below).
(b) If the Stockholder intends to distribute the Registrable
Securities covered by the request by means of an underwriting, it shall so
advise the Company as a part of its request made pursuant to this Section 1.3.
(c) The Company is obligated to effect one registration pursuant to
this Section 1.3; provided, however, that the Company shall not be obligated to
effect any registration pursuant to this Section 1.3 if the number of shares of
Registrable
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Securities then held by the Stockholder shall be less than one percent of the
then outstanding Common Stock. A registration shall not be deemed to have been
effected (i) unless it has become effective and remained effective for the
period specified in Section 1.3(a) or until the Registrable Securities
registered under such registration statement have been sold, or (ii) if, after
it has become effective, such registration is terminated by a stop order,
injunction or other order of the Commission or other governmental agency or
court.
(d) Subject to Section 1.3(e), any holder of shares of Common Stock
that is a party to an agreement with the Company pursuant to which such holder
is granted registration rights under the Securities Act shall also have the
right to include such shares in any shelf registration pursuant to this Section
1.3.
(e) If any of the Registrable Securities registered pursuant to any
shelf registration pursuant to this Section 1.3 are to be sold in an
underwritten offering, and the managing underwriter or underwriters deliver an
opinion to the Company and the Stockholder that the total number of shares of
Common Stock which the Stockholder and any other Persons intend to include in
such offering exceeds the number of shares that can be sold in such offering,
then there shall be included in such underwritten offering the number of shares
of Common Stock which in the opinion of such underwriters can be sold, and such
shares shall be allocated pro rata among the holders of shares of Common Stock
to be sold on the basis of the number of shares of Common Stock to be
registered; provided, that if shares of Common Stock are being offered for the
account of other Persons as well as the Stockholder, a reduction in number of
shares shall first be made from the shares intended to be offered by such
Persons other than the Stockholder, except that the shares of Common Stock
intended to be offered by the Stockholder shall be reduced prior to any
reduction of the shares of Common Stock intended to be offered by any PAJW
Holder. Anything in this Agreement to the contrary notwithstanding, in the
event that the Stockholder requests registration of its Registrable Securities
pursuant to this Section 1.3 and shares representing 50 percent or more of the
Registrable Securities requested to be included by the Stockholder are excluded
from the offering by the managing underwriter or underwriters thereof, then
such registration shall not constitute, or be counted as, the registration
requested by the Stockholder pursuant to Section 1.3 hereof.
(f) Anything in this Agreement to the contrary notwithstanding, the
Company shall not be required to register any Registrable Securities pursuant
to this Section 1.3 if the Stockholder had the opportunity to register
Registrable Securities pursuant to Section 1.4 hereof within the six months
immediately preceding such request, but declined to do so; provided, however,
that the foregoing provisions of this paragraph (f) shall not apply if the
Stockholder requested registration of such Registrable Securities pursuant to
Section 1.4 hereof and 25 percent or more of such Registrable Securities were
excluded from the offering by the managing underwriter or underwriters thereof.
1.4 Company Registration. At any time prior to July 1, 1999 that the
Company proposes to register (including for this purpose a registration
effected by the Company for stockholders other than the Stockholder) any shares
of its Common Stock under the Securities Act for sale within such period (other
than registration of the Common Stock for issuance or sale (a) pursuant to
Section 1.3 hereof or (b) in connection with (i) employee or non-employee
director compensation or benefit programs, (ii) an exchange offer or an
offering of securities solely to the existing stockholders or employees of the
Company or (iii) an acquisition, merger or other business combination using a
registration statement on Form S-4 or any
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successor or other appropriate form), the Company will give prompt written
notice (which, in any event, shall be given no less than 15 days prior to the
filing of a registration statement with respect to such offering) to the
Stockholder of its intention so to do and, upon the written request of the
Stockholder sent within 15 days after the effective date of any such notice,
the Company will, subject to the provisions of Sections 1.5 and 1.7 hereof, use
its Best Efforts to cause all Registrable Securities as to which the
Stockholder shall have so requested registration, to be registered under the
Securities Act, all to the extent necessary to permit the sale in such offering
of the Registrable Securities so registered on behalf of the Stockholder in the
same manner as the Company (or stockholder other than the Stockholder, as the
case may be) proposes to offer its shares of Common Stock. The Company shall
use its Best Efforts to cause the managing underwriter or underwriters of a
proposed underwritten offering to permit the Registrable Securities requested
by the Stockholder to be included in the registration for such offering on the
same terms and conditions as the shares of Common Stock of the Company included
therein. Notwithstanding the foregoing, if the managing underwriter or
underwriters of such offering deliver an opinion to the Company and the
Stockholder that the total number of shares of Common Stock which the
Stockholder or the Company, and any other Person, intend to include in such
offering will in the good faith opinion of such managing underwriter or
underwriters materially and adversely affect the success of such offering, then
the number of shares of Common Stock to be offered for the account of the
Stockholder shall be reduced pro rata based upon the number of shares of Common
Stock proposed to be sold by the Company, the Stockholder and other Persons to
the extent necessary to reduce the total number of shares of Common Stock to be
included in such offering to the number of shares recommended by such managing
underwriter; provided, that if shares of Common Stock are being offered for the
account of other Persons as well as the Company, such reduction shall first be
made from the shares of Common Stock intended to be offered by such Persons
other than the Stockholder, except that the shares of Common Stock intended to
be offered by the Stockholder shall be reduced prior to any reduction of the
shares of Common Stock intended to be offered by any PAJW Holder.
1.5 Obligations of the Company. If and whenever the Company is
required by the provisions of this Agreement to use its Best Efforts to effect
the registration of any Registrable Securities, the Company shall as
expeditiously as reasonably practicable:
(a) Prepare and file with the Commission a registration statement on
an appropriate form under the Securities Act and use its Best Efforts to cause
such registration statement to become effective; provided, that before filing a
registration statement or prospectus or any amendments or supplements thereto,
including documents incorporated by reference after the initial filing of any
registration statement, as soon as practicable, the Company will furnish to the
Stockholder and the underwriters, if any, copies of all such documents proposed
to be filed, which documents will be subject to the review of the Stockholder
and the underwriters, and the Company will not file any registration statement
or amendment thereto, or any prospectus or any supplement thereto (including
such documents incorporated by reference) to which the Stockholder or the
underwriters, if any, shall reasonably object in the light of the requirements
of the Securities Act and any other applicable laws and regulations.
(b) Prepare and file with the Commission such amendments and post-
effective amendments to a registration statement as may be necessary to keep
such registration statement effective for the applicable period; cause the
related
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prospectus to be filed pursuant to Rule 424(b) under the Securities Act; cause
such prospectus to be supplemented by any required prospectus supplement and,
as so supplemented, to be filed pursuant to Rule 424(b) under the Securities
Act; and comply with the provisions of the Securities Act with respect to the
disposition of all securities covered by such registration statement during the
applicable period in accordance with the intended methods of disposition set
forth in such registration statement or supplement to such prospectus.
(c) Notify the Stockholder and the managing underwriters, if any,
promptly, and (if requested by any such Person) confirm such advice in writing,
(i) when a prospectus or any prospectus supplement or post-effective amendment
has been filed, and, with respect to a registration statement or any post-
effective amendment, when the same has become effective, (ii) of any request by
the Commission for amendments or supplements to a registration statement or
related prospectus or for additional information, (iii) of the issuance by the
Commission of any stop order suspending the effectiveness of a registration
statement or the initiation of any proceeding for that purpose, (iv) if at my
time the representations and warranties of the Company contemplated by Section
1.5(l) cease to be true and correct, (v) of the receipt by the Company of any
notification with respect to the suspension or qualification of any of the
Registrable Securities for sale in any jurisdiction or the initiation of any
proceeding for such purpose, (vi) of the happening of any event which requires
the making of any changes in a registration statement or related prospectus so
that such documents will not contain any untrue statement of a material fact or
omit to state any material fact required to be stated therein or necessary to
make the statements therein not misleading and (vii) of the Company's
reasonable determination that a post-effective amendment to a registration
statement would be appropriate or that there exist circumstances not yet
disclosed to the public which make further sales under such registration
statement inadvisable pending such disclosures and post-effective amendment.
(d) Make reasonable efforts to obtain the withdrawal of any order
suspending the effectiveness of a registration statement, or the lifting of any
suspension of the qualification of any of the Registrable Securities for sale
in any jurisdiction, at the earliest possible moment.
(e) If requested by the managing underwriters or the Stockholder in
connection with an underwritten offering, immediately incorporate in a
prospectus supplement or post effective amendment such information as the
managing underwriters and the Stockholder agree should be included therein
relating to such sale and distribution of Registrable Securities, including,
without limitation, information with respect to the number of shares of
Registrable Securities being sold to such underwriters and the purchase price
being paid therefor by such underwriters and with respect to any other terms of
the underwritten (or best efforts underwritten) offering of the Registrable
Securities to be sold in such offering; make all required filings of such
prospectus supplement or post-effective amendment as soon as notified of the
matters to be incorporated in such prospectus supplement or post-effective
amendment; and supplement or make amendments to any registration statement if
requested by the Stockholder or any underwriter of such Registrable Securities.
(f) Furnish to the Stockholder and each managing underwriter, if any,
without charge, at least one signed copy of the registration statement, any
post-effective amendment thereto, including financial statements and schedules,
all documents incorporated therein by reference and all exhibits (including
those incorporated by reference).
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(g) Deliver without charge to the Stockholder and the underwriters,
if any, as many copies of the prospectus or prospectuses (including each
preliminary prospectus) and any amendment or supplement thereto as such Persons
may reasonably request; and the Company consents to the use of such prospectus
or any amendment or supplement thereto by the Stockholder and the underwriters,
if any, in connection with the offer and sale of the Registrable Securities
covered by such prospectus or any amendment or supplement thereto.
(h) Prior to any public offering of Registrable Securities, register
or qualify or cooperate with the Stockholder, the underwriters, if any, and
respective counsel in connection with the registration or qualification of such
Registrable Securities for offer and sale under the securities or Blue Sky laws
of such jurisdictions as the Stockholder or an underwriter reasonably requests
in writing; keep each such registration or qualification effective during the
period such registration statement is required to be kept effective and do any
and all other acts or things necessary or advisable to enable the disposition
in such jurisdictions of the Registrable Securities covered by the applicable
registration statement; provided, however, that the Company will not be
required in connection therewith or as a condition thereto to qualify generally
to do business or subject itself to general service of process in any such
jurisdiction where it is not then so subject.
(i) Cooperate with the Stockholder and the managing underwriters, if
any, to facilitate the timely preparation and delivery of certificates
representing Registrable Securities to be sold and not bearing any restrictive
legends; and enable such Registrable Securities to be in such denominations and
registered in such names as the managing underwriters may request at least two
business days prior to any sale of Registrable Securities to the underwriters.
(j) Use its Best Efforts to cause the Registrable Securities covered
by the applicable registration statement to be registered with or approved by
such other governmental agencies or authorities as may be necessary, if any, to
consummate the disposition of such Registrable Securities.
(k) Upon the occurrence of any event contemplated by Section 1.5(c)
(ii) - (vii) above, prepare a supplement or post-effective amendment to the
applicable registration statement or related prospectus or any document
incorporated therein by reference or file any other required document so that,
as thereafter delivered to the purchaser of the Registrable Securities being
sold thereunder, such prospectus will not contain an untrue statement of a
material fact or omit to state any material fact necessary to make the
statements therein not misleading.
(l) Enter into such agreements (including an underwriting agreement)
and take all such other actions in connection therewith in order to expedite or
facilitate the disposition of such Registrable Securities and in such
connection, whether or not an underwriting agreement is entered into and
whether or not the Registrable Securities to be covered by such registration
are to be offered in an underwritten offering: (i) make such representations
and warranties to the Stockholder with respect to the registration statement,
prospectus and documents incorporated by reference, if any, in form, substance
and scope as are customarily made by issuers to underwriters in underwritten
offerings and confirm the same if and when requested; (ii) obtain opinions of
counsel to the Company and updates thereof with respect to the registration
statement and the prospectus in the form, scope and substance which are
customarily delivered in underwritten offerings; (iii) in the case of an
underwritten offering, enter into an underwriting agreement in form, scope and
substance as is customary in underwritten offerings and obtain opinions
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of counsel to the Company and updates thereof (which counsel and opinions (in
form, scope and substance) shall be reasonably satisfactory to the managing
underwriters and the Stockholder) addressed to the Stockholder and the
underwriters, if any, covering the matters customarily covered in opinions
delivered in underwritten offerings and such other matters as may be reasonably
requested by the Stockholder and such underwriters; (iv) obtain "cold comfort"
letters and updates thereof from the Company's independent certified public
accountants addressed to the Stockholder and the underwriters, if any, such
letters to be in customary form and covering matters of the type customarily
covered in "cold comfort" letters by accountants in connection with
underwritten offerings; (v) if any underwriting agreement is entered into, the
same shall set forth in full the indemnification provisions and procedures
customarily included in underwriting agreements in underwritten offerings; and
(vi) the Company shall deliver such documents and certificates as may be
requested by the Stockholder and the managing underwriters, if any, to evidence
compliance with clause (i) above and with any customary conditions contained in
the underwriting agreement or other agreement entered into by the Company. The
above shall be done at each closing under such underwriting or similar
agreement or as and to the extent required thereunder.
(m) Make available for inspection by a representative of the
Stockholder, any underwriter participating in any disposition pursuant to such
registration, and any attorney or accountant retained by the Stockholder or
such underwriter, all financial and other records, pertinent corporate
documents and properties of the Company, and cause the Company's officers,
directors and employees to supply all information reasonably requested by any
such representative, underwriter, attorney or accountant in connection with
such registration; provided that any records, information or documents that are
designated by the Company in writing as confidential shall be kept confidential
by such Persons unless disclosure of such records, information or documents is
required by court or administrative order.
(n) Otherwise use its Best Efforts to comply with all applicable
rules and regulations of the Commission and make generally available to its
security holders earning statements satisfying the provisions of Section 11(a)
of the Securities Act, no later than 90 days after the end of any 12-month
period (i) commencing at the end of any fiscal quarter in which Registrable
Securities are sold to underwriters in a firm or best efforts underwritten
offering and (ii) beginning with the first day of the Company's first fiscal
quarter next succeeding each sale of Registrable Securities after the effective
date of a registration statement, which statements shall cover said 12-month
periods.
(o) If the Company, in the exercise of its reasonable judgment,
objects to any change reasonably requested by the Stockholder or the
underwriters, if any, to any registration statement or prospectus or any
amendments or supplements thereto (including documents incorporated or to be
incorporated therein by reference) as provided for in this Section 1.5, the
Company shall not be obligated to make any such change and the Stockholder may
withdraw its Registrable Securities from such registration, in which event (i)
the Company shall pay all registration expenses (including its counsel fees and
expenses) incurred in connection with such registration statement or amendment
thereto or prospectus or supplement thereto, (ii) in the case of a shelf
registration, the shelf registration statement or amendment thereto shall be
filed as soon as agreement with respect to any proposed change shall be reached
among all the applicable parties and (iii) in the case of a registration being
effected pursuant to Section 1.3, such registration shall not count as the one
registration the Company is obligated to effect pursuant to Section 1.3(c).
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In connection with any registration of Registrable Securities, the
Company may require the Stockholder to furnish to the Company such information
regarding itself and the distribution of such securities as the Company may
from time to time reasonably request in writing.
The Stockholder agrees by acquisition of Registrable Securities that,
upon receipt of any notice from the Company of the happening of any event of
the kind described in Section 1.5(c)(ii)-(vii) hereof, the Stockholder will
forthwith discontinue disposition of Registrable Securities covered by such
registration statement or prospectus until the Stockholder's receipt of the
copies of the supplemented or amended prospectus contemplated by Section
1.5(c)(i) hereof, or until it is advised in writing by the Company that the use
of the applicable prospectus may be resumed, and has received copies of any
additional or supplemental filings which are incorporated by reference in such
prospectus, and, if so directed by the Company, the Stockholder will deliver to
the Company (at the Company's expense) all copies, other than permanent file
copies then in the Stockholder's possession, of the prospectus covering such
Registrable Securities current at the time of receipt of such notice. In the
event the Company shall give any such notice, the time period mentioned in
Section 1.3(a) shall be extended by the number of days during the time period
from and including the date of the giving of such notice pursuant to Section
1.5(c) hereof to and including the date when the Stockholder shall have
received the copies of the supplemented or amended prospectus contemplated by
Section 1.5(c) hereof.
1.6 Expenses of Registration. All expenses incurred in connection
with a registration, filing or qualification pursuant to Section 1.3 hereof
(other than fees and expenses of the Company's counsel), including, without
limitation, registration, filing and qualification fees, printers' and
accounting fees (other than accounting fees incurred by the Company in
connection with its compliance with the periodic reporting requirements set
forth in Regulation 13A under the Exchange Act), and the fees and disbursements
of counsel for the Stockholder, shall be borne and paid by the Stockholder, pro
rata in such proportion as the number of Registrable Securities registered
pursuant to such registration bears to the total amount of securities
registered pursuant thereto. All expenses incurred in connection with a
registration pursuant to Section 1.4 (including, but not limited to, the
expenses enumerated in the preceding sentence) shall be borne by the Company,
with the exception of fees and disbursements of the Stockholder's counsel,
which shall be borne by the Stockholder. In addition, the Stockholder shall
bear and pay all underwriting discounts and selling commissions attributable to
sales of Registrable Securities.
1.7 Underwritten Registrations.
(a) If any of the Registrable Securities covered by any registration
under Section 1.3 are to be sold in an underwritten offering, the investment
banker or investment bankers and manager or managers that will administer the
offering will be selected by the Stockholder; provided, that such investment
bankers and managers must be reasonably satisfactory to the Company.
(b) The Stockholder may not participate in any underwritten
registration under Section 1.4 hereunder unless it (i) agrees to sell its
securities on the basis provided in any underwriting arrangements approved by
the Persons entitled hereunder to approve such arrangements and (ii) completes
and executes all questionnaires, powers of attorney, indemnities, underwriting
agreements and other documents required under the terms of such underwriting
arrangements. In
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connection with any underwritten offering that includes securities being issued
or sold by the Company, the Company shall be the Person entitled to approve the
terms of the underwriting arrangements.
1.8 Indemnification. In the event any Registrable Securities are
included in a registration statement under this Agreement:
(a) To the extent permitted by law, the Company will indemnify and
hold harmless the Stockholder, the officers and directors of the Stockholder,
each underwriter of Registrable Securities and each other Person, if any, who
controls the Stockholder or such underwriter within the meaning of Section 15
of the Securities Act, against any losses, claims, damages, liabilities or
expenses, joint or several, to which any such Person may become subject under
the Securities Act or otherwise, insofar as such losses, claims, damages,
liabilities or expenses (or actions in respect thereof) arise out of or are
based upon (i) any untrue statement or alleged untrue statement of a material
fact contained in any registration statement under which such Registrable
Securities were registered under the Securities Act pursuant hereto, or any
post-effective amendment thereof, or the omission or alleged omission therefrom
of a material fact required to be stated therein or necessary to make the
statements therein not misleading, or (ii) any untrue statement or alleged
untrue statement of a material fact contained in any preliminary prospectus, if
used prior to the effective date of the registration statement and not
corrected in the final prospectus, or contained in the final prospectus (as
amended or supplemented, if the Company shall have filed with the Commission
any amendment thereof or supplement thereto), or the omission or alleged
omission therefrom of a material fact required to be stated therein or
necessary to make the statements therein not misleading; and will reimburse any
such Person for any legal or other expenses reasonably incurred by such Person
in connection with investigating or defending any such loss, claim, damage,
liability or expense; provided, however, that the indemnity agreement contained
in this Section 1.8(a) shall not apply to amounts paid in settlement of any
such loss, claim, damage, liability or expense if such settlement is effected
without the consent of the Company (which consent shall not be unreasonably
withheld); and provided further that the Company shall not be liable in any
such case to the extent that any such loss, claim, damage, liability or expense
arises out of or is based upon any such untrue statement or omission or alleged
untrue statement or omission which has been made in said registration
statement, preliminary prospectus, prospectus or amendment or supplement or
omitted therefrom in reliance upon and in conformity with information furnished
in writing to the Company by the Stockholder or such underwriter specifically
for use in the preparation thereof.
(b) To the extent permitted by law, the Stockholder will indemnify
and hold harmless the Company, each of its directors, each of its officers who
has signed the registration statement, each Person, if any, who controls the
Company within the meaning of Section 15 of the Securities Act, each
underwriter and each Person who controls any underwriter within the meaning of
Section 15 of the Securities Act, against any losses, claims, damages,
liabilities or expenses, joint or several, to which the Company or any such
Person, may become subject under the Securities Act or otherwise, and will
reimburse the Company or any such Person for any legal or other expenses
reasonably incurred by the Company or such Person in connection with
investigating or defending any such loss, claim, damage, liability or
expense, but only insofar as such losses, claims, damages, liabilities or
expenses (or actions in respect thereof) arise out of or are based upon any
untrue statement or omission or alleged untrue statement or omission of a
material fact referred to in clause (i) or (ii) of Section 1.8(a) hereof, in
each case to the extent (and only to the
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extent) that such untrue statement or omission or alleged untrue statement or
omission was made in reliance upon and in conformity with information furnished
in writing by or on behalf of the Stockholder specifically for use in
connection with such registration; provided, however, that the indemnity
agreement contained in this Section 1.8(b) shall not apply to amounts paid in
settlement of any such loss, claim, damage, liability or expense if such
settlement is effected without the consent of the Stockholder, which consent
shall not be unreasonably withheld; and, provided further, that the obligations
of Stockholder under this Section 1.8(b) shall be limited to an amount equal to
the amount of proceeds from the sale by the Stockholder of Registrable
Securities included in a registration statement under this Agreement to which
such obligations relate.
(c) Promptly after receipt by an indemnified party under this Section
1.8 of notice of the commencement of any action (including any governmental
action), such indemnified party will, if a claim in respect thereof is to be
made against an indemnifying party under this Section 1.8, notify the
indemnifying party in writing of the commencement thereof and the indemnifying
party shall have the right to participate in, and, to the extent the
indemnifying party so desires, to assume the defense thereof with counsel
mutually satisfactory to the parties; provided, however, that an indemnified
party shall have the right to retain its own counsel, with the fees and
expenses to be paid by the indemnifying party, if representation of such
indemnified party by the counsel retained by the indemnifying party would be
inappropriate due to actual or potential differing interests between such
indemnified party and any other party represented by such counsel in such
proceeding. The failure so to notify an indemnifying party within a reasonable
time of the commencement of any such action, if prejudicial to its ability to
defend such action, shall relieve such indemnifying party of any liability to
the indemnified party under this Section 1.8, but the omission so to notify the
indemnifying party will not relieve it of any liability that it may have to any
indemnified party otherwise than under this Section 1.8.
(d) If the indemnification provided for in this Section 1.8 from the
indemnifying party is unavailable to an indemnified party hereunder in respect
of any losses, claims, damages, liabilities or expenses referred to herein,
then the 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 or expenses in such
proportion as is appropriate to reflect the relative fault of the indemnifying
party and indemnified parties in connection with the actions which resulted in
such losses, claims, damages, liabilities or expenses, as well as any other
relevant equitable considerations; provided that the obligations of Stockholder
under this Section 1.8(d) shall be limited to an amount equal to the amount of
proceeds from the sale by the Stockholder of Registrable Securities included in
a registration statement under this Agreement to which such obligations relate.
The relative fault of such indemnifying party and indemnified parties shall be
determined by reference to, among other things, whether any action in question,
including any untrue or alleged untrue statement of a material fact or omission
or alleged omission to state a material fact, has been made by, or relates to
information supplied by, such indemnifying party or indemnified parties, and
the parties' relative intent, knowledge, access to information and opportunity
to correct or prevent such action. The amount paid or payable by a party as a
result of the losses, claims, damages, liabilities and expenses referred to
above shall be deemed to include, subject to the limitations set forth in
Section 1.8(c) hereof, any legal or other fees or expenses reasonably incurred
by such party in connection with any investigation or proceeding.
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The parties hereto agree that it would not be just and equitable if
contribution pursuant to this Section 1.8(d) were determined by pro rata
allocation or by any other method of allocation which does not take into
account the equitable considerations referred to in the immediately preceding
paragraph. 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.
1.9 Reports Under Exchange Act. With a view to making available to
the Stockholder the benefits of Rule 144 under the Securities Act and any other
rule or regulation of the Commission that may at any time permit the
Stockholder to sell securities of the Company to the public without
registration, the Company agrees to:
(a) 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 the rules and regulations adopted by the Commission thereunder; and
(b) furnish to the Stockholder forthwith upon request (i) a written
statement by the Company as to whether it has complied with the reporting
requirements of Rule 144, (ii) a copy of the most recent annual or quarterly
report of the Company and such other reports and documents filed by the Company
pursuant to the Exchange Act and (iii) such other information as may be
reasonably requested in availing the Stockholder of any rule or regulation of
the Commission which permits the sale of any securities without registration.
1.10 Assignment of Registration Rights. The right to cause the
Company to register Registrable Securities pursuant to this Agreement may not
be assigned, in whole or in part, by the Stockholder without the prior written
consent of the Company.
1.11 Limitations on Subsequent Registration Rights. From and after
the date of this Agreement, the Company shall not, without the prior written
consent of the Stockholder, enter into any agreement with any holder or
prospective holder of any securities of the Company which grants registration
rights under the Securities Act on terms and conditions more favorable than the
rights granted to the Stockholder in this Agreement. The Company is not a
party to any currently subsisting agreement with respect to its securities
granting any registration rights to any Person, except the Xxxxx Agreement and
the PAJW Agreement.
1.12 Hold-Back Agreements.
(a) If a registration statement is filed pursuant to Section 1.3 or
1.4 hereof, the Stockholder agrees not to effect any public sale or
distribution of the issue being registered or similar security of the Company,
including a sale pursuant to Rule 144 under the Securities Act (except as part
of such underwritten registration), during the 14-day period prior to, and
during the 90-day period beginning on, the closing date of each underwritten
offering made pursuant to such registration statement, to the extent timely
notified in writing by the Company or the managing underwriters.
(b) The Company agrees (i) not to effect any public sale or
distribution of any securities similar to those being registered during the 14-
day period prior to, and during the 90-day period beginning on, the effective
date of a registration statement filed pursuant to Section 1.3 or 1.4 hereof
(except as part of such underwritten registration or in connection with (A)
employee or non-employee director compensation or benefit programs, (B) an
exchange offer or an offering of
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securities solely to the existing stockholders or employees of the Company, or
(C) an acquisition, merger or other business combination using a registration
statement on Form S-4 or any successor or other appropriate form), and (ii) to
cause each holder of its privately placed securities purchased from the Company
at any time on and after the date of this Agreement to agree not to effect any
public sale or distribution of any such securities during such period,
including a sale pursuant to Rule 144 under the Securities Act (except as part
of such underwritten registration, if permitted).
1.13 Investment Representations. The Stockholder makes the
representations, warranties, covenants and agreements set forth on Schedule A
hereto for the purpose of compliance with the United States federal securities
laws.
ARTICLE II
MISCELLANEOUS
2.1 Successors and Assigns; No Third Party Benefit. This Agreement
shall be binding upon and inure to the benefit of the parties and their
respective permitted successors and assigns. Nothing in this Agreement,
express or implied, is intended to confer upon any party other than the parties
hereto and their respective permitted successors and assigns any rights or
remedies under or by reason of this Agreement, except as expressly provided in
this Agreement.
2.2 Governing Law. This Agreement shall be governed by, and
construed and enforced in accordance with, the substantive laws of the State of
Texas, without giving effect to the principles of conflicts of law thereof.
2.3 Counterparts. This Agreement may be executed by the parties
hereto in separate counterparts, each of which when so executed and delivered
shall be deemed an original, but all such counterparts shall together
constitute one and the same instrument. Each counterpart may consist of a
number of copies hereof each signed by less than all, but together signed by
all, the parties hereto.
2.4 Titles and Subtitles. The titles and subtitles used in this
Agreement are inserted for convenience only and are not to be considered in
construing or interpreting this Agreement.
2.5 Notices. All notices and other communications provided for or
permitted hereunder shall be made in writing and shall be delivered by (a)
personal delivery, (b) expedited delivery service or (c) certified or
registered mail, postage prepaid. Any such notice shall be deemed given upon
its receipt at the following address:
(i) If to the Stockholder, initially at
Royal Nedlloyd N.V.
Attn: Xx. X.X. Xxxxxx
Xxxxxxxx 00
0000 XX Xxxxxxxxx
Xxx Xxxxxxxxxxx
Telefax: 31 10 400 6190
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with a copy to:
W. Xxxxxx Xxxxxx, Esq.
Xxxxxx & Xxxxxxxx, P.C.
0000 XxXxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxx 00000
Telefax: 000-000-0000
and thereafter at such other address, notice of which is given to the Company
in accordance with this Section 2.5; and
(ii) If to the Company, initially at
Noble Drilling Corporation
Attn: Xx. Xxxxx X. Day
00000 Xxxxxxxx Xxxxxx, Xxxxx 000
Xxxxxxx, Xxxxx 00000
Telefax: 000-000-0000
with a copy to:
Xxxxxx X. Xxxxxxxx, Esq.
Xxxxxxxx & Xxxxxx, P.C.
0000 Xxxxxxx Xxxxxx, Xxxxx 0000
Xxxxxx, Xxxxx 00000
Telefax: 000-000-0000
and thereafter at such other address, notice of which is given in accordance
with this Section 2.5.
2.6 Adjustments Affecting Registrable Securities. The Company will
not take any action, or permit any change to occur, with respect to the
Registrable Securities which would adversely affect (a) the ability of the
Stockholder to include such Registrable Securities in a registration undertaken
pursuant to this Agreement or (b) the marketability of such Registrable
Securities in any such registration.
2.7 Amendments and Waivers. The provisions of this Agreement,
including the provisions of this sentence, may not be amended, modified or
supplemented, and waivers or consents to departures from the provisions hereof
(which may be generally or in a particular instance and either retroactively or
prospectively) may not be given, unless the Company has obtained the written
consent of the Stockholder.
2.8 Severability. If any provision or any portion of any provision
of this Agreement or the application of such provision or any portion thereof
to any Person or circumstance shall be held invalid or unenforceable, the
remaining portion of such provision, as it applies to other Persons or
circumstances and the remaining provisions, shall not be affected or impaired
thereby.
2.9 Entire Agreement. This Agreement is intended by the parties as a
final expression of their agreement and intended to be a complete and exclusive
statement of the agreement and understanding of the parties hereto in respect
of the subject matter herein contained. There are no restrictions, promises,
warranties or undertakings, other than those set forth or referred to herein,
with respect to the registration rights granted by the Company with respect to
the securities received
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by the Stockholder pursuant to the Acquisition. This Agreement supersedes all
prior agreements and understandings between the parties with respect to such
subject matter.
* * *
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IN WITNESS WHEREOF, the parties have caused this Agreement to be duly
executed as of the date first above written.
NOBLE DRILLING CORPORATION
By: /s/ Xxxxx X. Day
------------------------------
Xxxxx X. Day,
Chairman, President and Chief
Executive Officer
ROYAL NEDLLOYD N.V.
By: /s/ Xxxx X. Boots
------------------------------
Name: Xxxx X. Boots
Title: By Power of Attorney
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