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EXHIBIT 4.2
FORM OF AMENDED AND RESTATED REGISTRATION RIGHTS AGREEMENT
This Amended and Restated Registration Rights Agreement (the
"Agreement"), dated as of ___________ ___, 200_, by and among Oil States
International, Inc., a Delaware corporation ("OSI"), HWC Energy Services, Inc.,
a Texas corporation ("HWC"), Sooner Inc., a Delaware corporation ("Sooner"), and
each of the holders of OSI Common Stock, HWC Common Stock, and Sooner Common
Stock listed on the signature pages hereto, is entered into in connection with
that certain Combination Agreement (the "Combination Agreement") dated as of
July 31, 2000 and among OSI, HWC, Sooner and PTI Group, Inc., an Alberta
corporation ("PTI") and the other parties thereto. Capitalized terms that are
used but not defined herein shall have the meanings set forth in the Combination
Agreement.
RECITALS
WHEREAS, OSI, HWC, Sooner and PTI have entered into the Combination
Agreement, pursuant to which, among other things, the holders of HWC Common
Stock will receive shares of OSI Common Stock in the HWC Merger and the holders
of Sooner Common Stock will receive shares of OSI Common Stock in the Sooner
Merger; and
WHEREAS, certain of the holders of OSI Common Stock, HWC Common Stock
and Sooner Common Stock enjoy various registration rights with respect to such
shares currently owned by them (the "Existing Registration Rights"); and
WHEREAS, Article X of the Combination Agreement provides for the
execution of this Amended and Restated Registration Rights Agreement which will
amend and restate the Existing Registration Rights; and
WHEREAS, the Holders of the Existing Registration Rights wish to
relinquish such rights as of the Effective Time in consideration of receiving
the amended and restated registration rights contemplated by this Agreement;
WHEREAS, this Agreement shall be effective only upon the consummation
of the OSI Initial Public Offering.
NOW, THEREFORE, in consideration of the mutual covenants,
representations, warranties and agreements herein contained, the parties hereto
agree as follows:
SECTION 1 DEFINITIONS. The terms set forth below in this Section 1
shall have the meanings ascribed to them below or in the part of this Agreement
referred to below:
"Affiliate" shall have the meaning ascribed to such term in Rule 12b-2
of the general rules and regulations under the Exchange Act.
"Business Day" means any day except a Saturday, Sunday or other day on
which commercial banks in the States of Texas or New York are authorized by law
to close.
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"Demand Holder" means SCF-III, L.P., a Delaware limited partnership,
SCV-IV, L.P., a Delaware limited partnership, or any of their respective
successors and each transferee of their OSI Common Stock to whom the right to
cause a Demand Registration has been expressly assigned in writing directly or
indirectly (in a chain of title) from SCF-III, L.P. or SCF-IV, L.P.
"Demand Registration" has the meaning set forth in Section 2(a) below.
"Demand Request" has the meaning set forth in Section 2(a) below.
"Exchange Act" means the Securities Exchange Act of 1934, as amended.
"Existing Registration Rights" has the meaning set forth in the
recitals above.
"Holders" means those Persons set forth on the signature pages hereto,
each of whom currently owns Registrable Securities; provided, however that a
Person shall cease to be a Holder at any time after 180 days after the OSI
Initial Public Offering if and when such Person owns OSI Common Stock and OSI
Common Stock Equivalents representing less than two percent of the outstanding
OSI Common Stock and such Person may dispose of all Registrable Securities then
owned by such Person pursuant to Rule 144(k) (or any successor rule) under the
Securities Act; provided, further however, that a Person (other than a Demand
Holder) shall cease to be a Holder after the second anniversary hereof if the
Company requests in writing that such Person confirm in writing that such Person
remains a Holder and such Person fails to so confirm within 30 days of such
notice.
"HWC Common Stock" shall mean the common stock, par value $.01 per
share, of HWC Energy Services, Inc., a Texas corporation.
"Indemnified Party" has the meaning set forth in Section 7(c) below.
"Indemnifying Party" has the meaning set forth in Section 7(c) below.
"Inspectors" has the meaning set forth in Section 5(i) below.
"Material Adverse Effect" has the meaning set forth in Section 2(d)
below.
"OSI Common Stock" shall mean the Class A common stock, par value $.01
per share, of OSI.
"OSI Common Stock Equivalents" means (without duplication with any
other OSI Common Stock or OSI Common Stock Equivalents) rights, warrants,
options, convertible securities, or exchangeable securities or indebtedness, or
other rights, exercisable for or convertible or exchangeable into, directly or
indirectly, OSI Common Stock or securities convertible or exchangeable into OSI
Common Stock, whether at the time of issuance or upon the passage of time or the
occurrence of some future event.
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"OSI Initial Public Offering" means the initial public offering of OSI
Common Stock contemplated by an OSI registration statement filed to effect such
offering.
"Person" means any natural person, corporation, limited partnership,
general partnership, joint stock company, joint venture, association, company,
trust, bank trust company, land trust, business trust, or other organization,
whether or not a legal entity, and any government or agency or political
subdivision thereof.
"Piggyback Registration" has the meaning set forth in Section 3(a)
below.
"Piggyback Securities" has the meaning set forth in Section 3(b) below.
"PTI Exchangeable Shares" has the meaning set forth in the Combination
Agreement.
"PTI Registration Statement" has the meaning set forth in Section 3(a)
below.
"Records" has the meaning set forth in Section 5(i) below.
"Registrable Securities" means (i) the OSI Common Stock issued in
connection with the Combination Agreement in exchange for shares of HWC Common
Stock or Sooner Common Stock to which, in each case, Existing Registration
Rights were attached, (ii) the OSI Common Stock issued prior to the date hereof
to which Existing Registration Rights are attached and (iii) any OSI Common
Stock and any other securities issued or issuable with respect to such
securities by way of a stock dividend or stock split or in connection with a
combination of shares, recapitalization, merger, consolidation or
reorganization; provided, that any Registrable Security will cease to be a
Registrable Security when (a) a registration statement covering such Registrable
Security has been declared effective by the SEC and it has been disposed of
pursuant to such effective registration statement, (b) such Registrable Security
is sold under circumstances in which all of the applicable conditions of Rule
144 (or any similar provisions then in force) under the Securities Act are met,
(c) (i) such Registrable Security has been otherwise transferred and (ii) OSI
has delivered a new certificate or other evidence of ownership for it not
bearing any legend with respect to registration and (iii) such Registrable
Security may be resold without subsequent registration under the Securities Act,
or (d) such Registrable Security has ceased to be a Registrable Security in
accordance with the proviso to the definition of Holder provided for herein.
"Registration Expenses" has the meaning set forth in Section 6 below.
"Requesting Holders" means the Demand Holder or group of Demand Holders
acting in concert to make a Demand Request.
"Required Filing Date" has the meaning set forth in Section 2(a)(ii)
below.
"SEC" means the Securities and Exchange Commission or any successor
governmental agency.
"Securities Act" means the Securities Act of 1933, as amended from time
to time.
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"Selling Holder" means a Holder who is selling Registrable Securities
pursuant to a registration statement under the Securities Act.
"Sooner Common Stock" shall mean the common stock, par value $.01 per
share, of Sooner Inc., a Delaware corporation.
"Subsidiary" means (i) any corporation or other entity a majority of
the capital stock of which having ordinary voting power to elect a majority of
the board of directors or other Persons performing similar functions is at the
time owned, directly or indirectly, with power to vote, by OSI or any direct or
indirect Subsidiary of OSI or (ii) a partnership in which OSI or any direct or
indirect Subsidiary is a general partner.
"Underwriter" means a securities dealer which purchases any Registrable
Securities as principal and not as part of such dealer's market-making
activities.
SECTION 2 DEMAND REGISTRATION.
(a) Request for Registration.
(i) From and after the expiration of the lock-up
period agreed to by OSI in connection with the OSI Initial
Public Offering, any Demand Holder may make a written request
of OSI (a "Demand Request") for registration under the
Securities Act (a "Demand Registration") of the sale of all or
part of its Registrable Securities; provided that the
Registrable Securities proposed to be sold by the Requesting
Holders must have an estimated aggregate gross offering price
of at least $50,000,000.
(ii) Each Demand Request shall specify the type and
number of shares of Registrable Securities proposed to be
sold. Subject to Section 4(c), OSI shall file the Demand
Registration as soon as reasonably practicable but in any
event within 60 days after receiving a Demand Request (the
"Required Filing Date") and shall use all commercially
reasonable efforts to cause the same to be declared effective
by the SEC as promptly as practicable after such filing.
Subject to Section 2(b), if OSI has effected five Demand
Registrations in response to the request of a Demand Holder,
then OSI shall not be obligated to respond to further Demand
Registrations in respect of Demand Holders pursuant to this
Section. OSI shall not be obligated to effect more than one
Demand Registration in any six month period.
(b) Effective Registration and Expenses. Each registration
that becomes effective will be counted as a Demand Registration. A
registration will not count as a Demand Registration until it has
become effective unless (i) prior to such effective time the Requesting
Holders withdraw all their Registrable Securities for any reason other
than (A) the inability or unreasonable delay of OSI in having such
registration statement become effective or (B) the disclosure of
material adverse information regarding OSI that was not known by such
Requesting Holders at the time the request for such Demand Registration
was
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made and (ii) the Requesting Holders elect not to pay all of OSI's
Registration Expenses in connection with such withdrawn registration.
If, after such registration has become effective, an offering of
Registrable Securities pursuant to a registration is interfered with by
any stop order, injunction or other order or requirement of the SEC or
other governmental agency or court, such registration will not count as
a Demand Registration; provided, however, that upon the termination or
release of such stop order, injunction or interference, such
registration will again be counted as a Demand Registration.
(c) Selection of Underwriters. The offering of Registrable
Securities pursuant to a Demand Registration may be in the form of a
"firm commitment" underwritten offering. OSI shall select the
book-running managing Underwriter and such additional Underwriters to
be used in connection with the offering; provided that such selections
shall be subject to the consent of Requesting Holders owning a majority
of the Registrable Securities subject to such Demand Registration,
which consent shall not be unreasonably withheld.
(d) Priority on Demand Registrations. No securities to be sold
for the account of any Person (including OSI) other than a Holder shall
be included in a Demand Registration if the managing Underwriter or
Underwriters shall advise the Requesting Holder in writing that, in its
or their judgment, the inclusion of such securities may adversely
affect the price or success of the offering in any significant or
material respect (a "Material Adverse Effect"). Furthermore, in the
event the managing Underwriter or Underwriters shall advise the
Requesting Holder that even after exclusion of all securities of other
Persons pursuant to the immediately preceding sentence, the amount of
Registrable Securities proposed to be included in such Demand
Registration by Holders electing to participate is sufficiently large
to cause a Material Adverse Effect, the Registrable Securities of such
Holders to be included in such Demand Registration shall be allocated
pro rata among such Holders on the basis of the number of outstanding
shares of OSI Common Stock requested to be included in such
registration by each such Holder.
SECTION 3 PIGGYBACK REGISTRATION.
(a) If OSI proposes to file a registration statement under the
Securities Act, including a Demand Registration, with respect to an
offering of OSI Common Stock for cash by OSI for its own account or for
the account of any of its equity holders (other than a registration
statement on Form S-4 or S-8 or any substitute form that may be adopted
by the SEC or any registration statement filed in connection with an
exchange offer or offering of securities solely to OSI's existing
security holders or any registration statement filed in connection with
an exchange offer or offering of securities to holders of Exchangeable
Shares) (the "PTI Registration Statement"), then OSI shall give written
notice of such proposed filing to the Holders of the Registrable
Securities as soon as practicable (but in no event less than 20 days
before the anticipated initial filing date of such registration
statement), and such notice shall offer such Holders the opportunity to
register such number of Registrable Securities as each such Holder may
request (a "Piggyback Registration"). On or before the 10th day
following the receipt of such notice by the Holders, any Holder wishing
to include any or all of its Registrable Securities in such
registration statement shall give written notice to OSI stating the
name of such Holder and the amount of such Holder's
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Registrable Securities to be included in such registration statement.
Subject to Section 3(b), OSI shall include in each such Piggyback
Registration all Registrable Securities requested to be included in the
registration for such offering; provided, however, that OSI may at any
time withdraw or cease proceeding with such registration without the
consent of any Holder of Registrable Securities, notwithstanding the
request of any such Holder to participate therein in accordance with
this provision, if OSI determines in its sole discretion that such
action is in the best interests of OSI and its stockholders (for this
purpose, the interests of the Holders shall not be considered). Each
Holder of Registrable Securities shall be permitted to withdraw all or
part of such Holder's Registrable Securities from a Piggyback
Registration at any time prior to the effective date thereof.
(b) OSI shall use all commercially reasonable efforts to cause
the managing Underwriter or Underwriters of a proposed underwritten
offering to permit the Registrable Securities requested to be included
in the registration statement for such offering under Section 3(a)
("Piggyback Securities"), to be included on the same terms and
conditions as any similar securities included therein. Notwithstanding
the foregoing, OSI shall not be required to include any Holder's
Piggyback Securities in such offering unless such Holder accepts the
terms of the underwriting agreement between OSI and the managing
Underwriter or Underwriters and otherwise complies with the provisions
of Section 8. If such offering is a Demand Registration pursuant to
Section 2(a), then the provisions of Section 2(d) shall apply. In all
other offerings that are underwritten, if the managing Underwriter or
Underwriters of such proposed underwritten offering advise OSI in
writing that in its or their opinion the total amount of securities,
including Piggyback Securities, to be included in such offering is
sufficiently large to cause a Material Adverse Effect, then in such
event the securities to be included in such offering shall be allocated
first to OSI, and then, to the extent that any additional securities
can, in the opinion of such managing Underwriter or Underwriters, be
sold without any such Material Adverse Effect, pro rata among the
holders of Piggyback Securities on the basis of the number of
outstanding shares of OSI Common Stock requested to be included in such
registration by each such Holder.
(c) Until such time as the PTI Registration Statement has been
declared effective by the SEC, the holders of PTI Exchangeable Shares
shall be deemed to be Holders hereunder for purposes of participation
in Piggyback Registrations. The holders of PTI Exchangeable Shares
shall have the same rights, duties and obligations of Holders with
respect to Piggyback Registrations and shall be subject to the same
limitations and restrictions thereon. The rights provided in this
Section 3(c) shall terminate as to any particular holder of PTI
Exchangeable Shares at such time as such holder ceases to be a holder
of PTI Exchangeable Shares.
SECTION 4 HOLDBACK AGREEMENTS.
(a) Restrictions on Public Sale by Holder of Registrable
Securities. Each Holder of Registrable Securities (whether or not such
Registrable Securities are included in a registration statement
pursuant hereto) agrees not to effect any direct or indirect (including
through derivative transactions) sale or distribution of the issue
being registered or of any securities convertible into or exchangeable
or exercisable for such securities, including a sale
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pursuant to Rule 144 under the Securities Act, during the 14 days prior
to, and during such period (up to 90 days) beginning on, the date of
the final prospectus used with respect to any underwritten public
offering of equity securities by the Company or any Holder of
Registrable Securities if and to the extent requested by the managing
Underwriter or Underwriters.
(b) Restrictions on Public Sale by OSI and Others. OSI agrees
not to effect any direct or indirect (including through derivative
transactions) sale or distribution of any securities similar to those
being registered, or any securities convertible into or exchangeable or
exercisable for such securities, during the 14 days prior to, and
during a period of up to 90 days, if requested by the managing
underwriters, beginning on, the date of the final prospectus used with
respect to any underwritten public offering of equity securities by the
Company or any Holder of Registrable Securities (unless such sale or
distribution is pursuant to such registration statement); provided,
such restriction shall not affect OSI's ability to issue OSI Common
Stock pursuant to the PTI Registration Statement.
(c) Deferral of Filing. OSI may defer the filing (but not the
preparation) of a registration statement required by Section 2 if (i)
at the time OSI receives the Demand Request, OSI is engaged in
confidential negotiations or other confidential business activities,
disclosure of which would be required in such registration statement
(but would not be required if such registration statement were not
filed), and the Board of Directors of OSI determines in good faith that
such disclosure would not be in the best interests of OSI and its
stockholders, or (ii) prior to receiving the Demand Request, the Board
of Directors had determined to effect a registered underwritten public
offering of OSI's equity securities for OSI's account and OSI had taken
substantial steps (including, but not limited to, selecting the
managing Underwriter for such offering) and is proceeding with
reasonable diligence to effect such offering. A deferral of the filing
of a registration statement pursuant to this Section 4(c) shall be
lifted, and the requested registration statement shall be filed
forthwith, if, in the case of a deferral pursuant to clause (i) of the
preceding sentence, the negotiations or other activities are disclosed
or terminated, or, in the case of a deferral pursuant to clause (ii) of
the preceding sentence, the proposed registration for OSI's account is
abandoned. In order to defer the filing of a registration statement
pursuant to this Section 4(c), OSI shall promptly, upon determining to
seek such deferral, deliver to each Requesting Holder a certificate
signed by the President of Company stating that OSI is deferring such
filing pursuant to this Section 4(c). Within twenty days after
receiving such certificate, the Requesting Holder may withdraw such
request by giving notice to OSI; if withdrawn, the Demand Request shall
be deemed not to have been made for all purposes of this Agreement. OSI
may defer the filing of a particular registration statement pursuant to
this Section 4(c) for a period of 45 days in any three month period and
of all registration statements for a total of 90 days during any twelve
month period.
SECTION 5 REGISTRATION PROCEDURES. Whenever the Holders have requested
that any Registrable Securities be registered pursuant to Section 2 hereof, OSI
will, at its expense, use all commercially reasonable efforts to effect the
registration and the sale of such Registrable Securities under the Securities
Act in accordance with the intended method of disposition thereof as quickly as
practicable, and in connection with any such request, OSI will as expeditiously
as practicable:
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(a) prepare and file with the SEC a registration statement on
any form for which OSI then qualifies or which counsel for OSI shall
deem appropriate and which form shall be available for the sale of the
Registrable Securities to be registered thereunder in accordance with
the intended method of distribution thereof, and use all commercially
reasonable efforts and proceed diligently and in good faith to cause
such filed registration statement to become effective under the
Securities Act; provided, however, that before filing a registration
statement or prospectus or any amendments or supplements thereto, OSI
will furnish to all Selling Holders and to one counsel reasonably
acceptable to OSI selected by the Selling Holders, copies of all such
documents proposed to be filed, which documents will be subject to the
review of such counsel;
(b) prepare and file with the SEC such amendments and
supplements to such registration statement and the prospectus used in
connection therewith as may be necessary to keep such registration
statement effective pursuant to Section 2 for a period (except as
provided in the last paragraph of this Section 5) of not less than 180
consecutive days or, if shorter, the period terminating when all
Registrable Securities covered by such registration statement have been
sold (but not before the expiration of the applicable period referred
to in Section 4(3) of the Securities Act and Rule 174 thereunder, if
applicable) and comply with the provisions of the Securities Act with
respect to the disposition of all securities covered by such
registration statement during such period in accordance with the
intended methods of disposition by the Selling Holders thereof set
forth in such registration statement;
(c) furnish to each such Selling Holder one copy of such
registration statement, and of each amendment and supplement thereto
(in each case including one copy of all exhibits thereto), and such
number of copies of the prospectus included in such registration
statement (including each preliminary prospectus) as such Selling
Holder may reasonably request in order to facilitate the disposition of
the Registrable Securities owned by such Selling Holder;
(d) notify the Selling Holders promptly, and (if requested by
any such Person) confirm such notice 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 under the
Securities Act and each applicable state law; (ii) of any request by
the SEC or any other federal or state governmental authority for
amendments or supplements to a registration statement or related
prospectus or for additional information; (iii) of the issuance by the
SEC of any stop order suspending the effectiveness of a registration
statement or the initiation of any proceedings for that purpose; (iv)
if at any time the representations or warranties of OSI contained in
any agreement (including any underwriting agreement) contemplated by
Section 5(h) below cease to be true and correct in any material
respect; (v) of the receipt by OSI of any notification with respect to
the suspension of the qualification or exemption from qualification of
any of the Registrable Securities for sale in any jurisdiction or the
initiation or threatening of any proceeding for such purpose; (vi) of
the happening of any event which makes any statement made in such
registration statement or related prospectus or any document
incorporated or deemed to be incorporated therein by reference untrue
in any
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material respect or that requires the making of any changes in such
registration statement, prospectus or documents so that, in the case of
the registration statement, it 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 that in the case of the prospectus, it 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, in light of the circumstances under which they were made, not
misleading, and (vii) of OSI's reasonable determination that a
post-effective amendment to a registration statement would be
appropriate;
(e) use every commercially reasonable effort to obtain the
withdrawal of any order suspending the effectiveness of a registration
statement, or the lifting of any suspension of the qualification (or
exemption from qualification) of any of the Registrable Securities for
sale in any jurisdiction, at the earliest practicable moment;
(f) cooperate with the Selling Holders and the managing
Underwriter or Underwriters to facilitate the timely preparation and
delivery of certificates representing Registrable Securities to be
sold, which certificates shall not bear any restrictive legends and
shall be in a form eligible for deposit with The Depositary Trust
Company; and enable such Registrable Securities to be registered in
such names as the managing Underwriter or Underwriters may request
prior to any sale of Registrable Securities;
(g) use all commercially reasonable efforts to register or
qualify such Registrable Securities as promptly as practicable under
such other securities or blue sky laws of such jurisdictions as any
Selling Holder or managing Underwriter reasonably (in light of the
intended plan of distribution) requests and do any and all other acts
and things which may be reasonably necessary or advisable to enable
such Selling Holder or managing Underwriter to consummate the
disposition in such jurisdictions of the Registrable Securities owned
by such Selling Holder; provided, however, that OSI will not be
required to (i) qualify generally to do business in any jurisdiction
where it would not otherwise be required to qualify but for this
paragraph (g); (ii) subject itself to taxation in any such jurisdiction
or (iii) consent to general service of process in any such
jurisdiction;
(h) enter into customary agreements (including an underwriting
agreement in customary form) and take such other actions as are
reasonably required in order to expedite or facilitate the disposition
of such Registrable Securities;
(i) make available for inspection by any Selling Holder of
such Registrable Securities, any Underwriter participating in any
disposition pursuant to such registration statement and any attorney,
accountant or other professional retained by any such Selling Holder or
Underwriter (collectively, the "Inspectors"), all financial and other
records, pertinent corporate documents and properties of OSI
(collectively, the "Records") as shall be reasonably necessary to
enable them to exercise their due diligence responsibility, and cause
OSI's officers, directors and employees to supply all information
reasonably requested by any such Inspectors in connection with such
registration statement. Each Selling Holder of such Registrable
Securities agrees that information obtained by it as a result of such
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inspections shall be deemed confidential and shall not be used by it as
the basis for any market transactions in the securities of OSI or its
Affiliates unless and until such is made generally available to the
public.
(j) use all commercially reasonable efforts to obtain a
comfort letter or comfort letters from OSI's independent public
accountants in customary form and covering such matters of the type
customarily covered by comfort letters as the Selling Holders of a
majority of the shares of Registrable Securities being sold or the
managing Underwriter or Underwriters reasonably requests;
(k) otherwise use all commercially reasonable efforts to
comply with all applicable rules and regulations of the SEC, and make
available to its security holders, as soon as reasonably practicable,
an earnings statement covering a period of twelve months, which twelve
month period shall commence no later than three months after the
effective date of the registration statement, which earnings statement
shall satisfy the provisions of Section 11(a) of the Securities Act;
(l) use all commercially reasonable efforts to cause all such
Registrable Securities to be listed on each securities exchange on
which similar securities issued by OSI are then listed or quoted on any
inter-dealer quotation system on which similar securities issued by OSI
are then quoted;
(m) subject to the provisions of Section 4(c) if any event
contemplated by Section 5(d)(vi) above shall occur, as promptly as
practicable prepare a supplement or amendment or post-effective
amendment to such registration statement or the related prospectus or
any document incorporated therein by reference or promptly file any
other required document so that, as thereafter delivered to the
purchasers of the Registrable Securities, the prospectus will not
contain an 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
(n) cooperate and assist in any filing required to be made
with the National Association of Securities Dealers, Inc. and in the
performance of any due diligence investigation by any underwriter,
including any "qualified independent underwriter," or any Selling
Holder.
OSI may require each Selling Holder to promptly furnish in writing to
OSI such information regarding the distribution of the Registrable Securities as
it may from time to time reasonably request and such other information as may be
legally required in connection with such registration. Notwithstanding anything
herein to the contrary, OSI shall have the right to exclude from any offering
the Registrable Securities of any Selling Holder who does not comply with the
provisions of the immediately preceding sentence.
Each Selling Holder agrees that, upon receipt of any notice from OSI of
the happening of any event of the kind described in Section 5(d)(vi) hereof,
such Selling Holder will forthwith discontinue disposition of Registrable
Securities pursuant to the registration statement covering such
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Registrable Securities until such Selling Holder's receipt of the copies of the
supplemented or amended prospectus contemplated by Section 5(m) hereof, and, if
so directed by OSI, such Selling Holder will deliver to OSI all copies, other
than permanent file copies, then in such Selling Holder's possession, of the
most recent prospectus covering such Registrable Securities at the time of
receipt of such notice. In the event OSI shall give such notice, OSI shall
extend the period during which such registration statement shall be maintained
effective (including the period referred to in Section 5(b) hereof) by the
number of days during the period from and including the date of the giving of
notice pursuant to Section 5(d)(vi) hereof to the date when OSI shall make
available to the Selling Holders of Registrable Securities covered by such
registration statement a prospectus supplemented or amended to conform with the
requirements of Section 5(m) hereof.
SECTION 6 REGISTRATION EXPENSES. Subject to the provisions in Section
2(b) above with respect to a Demand Registration, in connection with any Demand
Registration or Piggyback Registration hereunder, OSI shall pay the following
registration expenses (the "Registration Expenses"): (a) all registration and
filing fees (including, without limitation, with respect to filings to be made
with the National Association of Securities Dealers, Inc.), (b) fees and
expenses of compliance with securities or blue sky laws (including reasonable
fees and disbursements of counsel in connection with blue sky qualifications of
the Registrable Securities), (c) printing expenses, (d) internal expenses
(including, without limitation, all salaries and expenses of its officers and
employees performing legal or accounting duties), (e) the fees and expenses
incurred in connection with the listing of the Registrable Securities on an
exchange or the quotation of the Registrable Securities on an inter-dealer
quotation system, (f) reasonable fees and disbursements of counsel for OSI and
customary fees and expenses for independent certified public accountants
retained by OSI (including the expenses of any comfort letters requested
pursuant to Section 5(j) hereof), (g) the reasonable fees and expenses of any
special experts retained by OSI in connection with such registration, (h)
reasonable fees and expenses of one counsel reasonably acceptable to OSI
selected by the Selling Holders incurred in connection with the registration of
such Registrable Securities hereunder and (i) fees and expenses of any
"qualified independent underwriter" or other independent appraiser participating
in any offering pursuant to the requirements of the National Association of
Securities Dealers, Inc. OSI shall not have any obligation to pay any
underwriting fees, discounts, or commissions attributable to the sale of
Registrable Securities, any capital gains, income or transfer taxes or, except
as provided by clause (b), (h) or (i) above, any out-of-pocket expenses of the
Holders (or the agents who manage their accounts) or the fees and disbursements
of counsel for any Underwriter.
SECTION 7 INDEMNIFICATION; CONTRIBUTION.
(a) Indemnification by OSI. OSI agrees to indemnify and hold
harmless each Selling Holder, each Person, if any, who controls such
Selling Holder within the meaning of Section 15 of the Securities Act
or Section 20 of the Exchange Act, and the officers, directors, agents,
members, general and limited partners, and employees of each Selling
Holder and each such controlling person from and against any and all
losses, claims, damages, liabilities, and expenses (including
reasonable costs of investigation) arising out of or based upon any
untrue statement or alleged untrue statement of a material fact
contained in any registration statement or prospectus relating to the
Registrable Securities or in any amendment or supplement thereto or in
any preliminary prospectus, or arising out
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of or based upon any omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the
statements therein not misleading, except insofar as such losses,
claims, damages, liabilities or expenses arise out of, or are based
upon, any such untrue statement or omission or allegation thereof based
upon information furnished in writing to OSI by such Selling Holder or
on such Selling Holder's behalf expressly for use therein. OSI also
agrees to indemnify any Underwriters of the Registrable Securities,
their officers and directors and each Person who controls such
Underwriters on substantially the same basis as that of the
indemnification of the Selling Holders provided in this Section 7(a).
(b) Indemnification by Holder of Registrable Securities. Each
Selling Holder, severally and not jointly, agrees to indemnify and hold
harmless OSI, and each Person, if any, who controls OSI within the
meaning of either Section 15 of the Securities Act or Section 20 of the
Exchange Act and the officers, directors, agents and employees of OSI
and each such controlling Person to the same extent as the foregoing
indemnity from OSI to such Selling Holder, but only with respect to
information furnished in writing by such Selling Holder or on such
Selling Holder's behalf expressly for use in any registration statement
or prospectus relating to the Registrable Securities. The liability of
any Selling Holder under this Section 7(b) shall be limited to the
aggregate cash and property received by such Selling Holder pursuant to
the sale of Registrable Securities covered by such registration
statement or prospectus.
(c) Conduct of Indemnification Proceedings. If any action or
proceeding (including any governmental investigation) shall be brought
or asserted against any Person entitled to indemnification under
Section 7(a) or 7(b) above (an "Indemnified Party") in respect of which
indemnity may be sought from any party who has agreed to provide such
indemnification (an "Indemnifying Party"), the Indemnified Party shall
give prompt written notice to the Indemnifying Party and the
Indemnifying Party shall assume the defense thereof, including the
employment of counsel reasonably satisfactory to such Indemnified
Party, and shall assume the payment of all reasonable expenses of such
defense. Such Indemnified Party shall have the right to employ separate
counsel in any such action or proceeding and to participate in the
defense thereof, but the fees and expenses of such counsel shall be at
the expense of such Indemnified Party unless (i) the Indemnifying Party
has agreed to pay such fees and expenses or (ii) the Indemnifying Party
fails promptly to assume the defense of such action or proceeding or
fails to employ counsel reasonably satisfactory to such Indemnified
Party or (iii) the named parties to any such action or proceeding
(including any impleaded parties) include both such Indemnified Party
and Indemnifying Party (or an Affiliate of the Indemnifying Party), and
such Indemnified Party shall have been advised by counsel that there is
a conflict of interest on the part of counsel employed by the
Indemnifying Party to represent such Indemnified Party (in which case,
if such Indemnified Party notifies the Indemnifying Party in writing
that it elects to employ separate counsel at the expense of the
Indemnifying Party, the Indemnifying Party shall not have the right to
assume the defense of such action or proceeding on behalf of such
Indemnified Party). Notwithstanding the foregoing, the Indemnifying
Party shall not, in connection with any one such action or proceeding
or separate but substantially similar related actions or proceedings in
the same jurisdiction arising out of the same general
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<PAGE> 13
allegations or circumstances, be liable at any time for the fees and
expenses of more than one separate firm of attorneys (together in each
case with appropriate local counsel). The Indemnifying Party shall not
be liable for any settlement of any such action or proceeding effected
without its written consent (which consent will not be unreasonably
withheld), but if settled with its written consent, or if there be a
final judgment for the plaintiff in any such action of proceeding, the
Indemnifying Party shall indemnify and hold harmless such Indemnified
Party from and against any loss or liability (to the extent stated
above) by reason of such settlement or judgment. The Indemnifying Party
shall not consent to entry of any judgment or enter into any settlement
that does not include as an unconditional term thereof the giving by
the claimant or plaintiff to such Indemnified Party of a release, in
form and substance satisfactory to the Indemnified Party, from all
liability in respect of such action or proceeding for which such
Indemnified Party would be entitled to indemnification hereunder.
(d) Contribution. If the indemnification provided for in this
Section 7 is unavailable to the Indemnified Parties in respect of any
losses, claims, damages, liabilities or judgments referred to herein,
then each such Indemnifying Party, in lieu of indemnifying such
Indemnified Party, shall contribute to the amount paid or payable by
such Indemnified Party as a result of such losses, claims, damages,
liabilities and judgments as between OSI on the one hand and each
Selling Holder on the other, in such proportion as is appropriate to
reflect the relative fault of OSI and of each Selling Holder in
connection with the statements or omissions which resulted in such
losses, claims, damages, liabilities or judgments, as well as any other
relevant equitable considerations. The relative fault of OSI on the one
hand and of each Selling Holder on the other shall be determined by
reference to, among other things, whether the untrue or alleged untrue
statement of a material fact or the omission or alleged omission to
state a material fact relates to information supplied by such party,
and the parties' relative intent, knowledge, access to information and
opportunity to correct or prevent such statement or omission. OSI and
the Selling Holders agree that it would not be just and equitable if
contribution pursuant to this Section 7(d) were determined by pro rata
allocation or by any other method of allocation which does not take
account of the equitable considerations referred to in the first two
sentences of this Section 7(d). The amount paid or payable by an
Indemnified Party as a result of the losses, claims, damages,
liabilities or judgments referred to in Sections 7(a) and (b) hereof
shall be deemed to include, subject to the limitations set forth above,
any legal or other expenses reasonably incurred by such Indemnified
Party in connection with investigating or defending any such action or
claim. Notwithstanding the provisions of this Section 7(d), no Selling
Holder shall be required to contribute any amount in excess of the
amount by which the total price at which the Registrable Securities of
such Selling Holder were offered to the public exceeds the amount of
any damages which such Selling Holder has otherwise been required to
pay by reason of such untrue or alleged untrue statement or omission or
alleged omission. No Person guilty of fraudulent 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.
SECTION 8 PARTICIPATION IN UNDERWRITTEN REGISTRATIONS. No Holder may
participate in any underwritten registration hereunder unless such Holder (a)
agrees to sell such Holder's
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<PAGE> 14
Registrable Securities on the basis provided in any underwriting arrangements
approved by the Person entitled hereunder to approve such arrangements, and (b)
timely completes and executes all questionnaires, powers of attorney,
indemnities, underwriting agreements, custody agreements and other documents
reasonably required under the terms of such underwriting arrangements and this
Agreement.
SECTION 9 MISCELLANEOUS.
9.1 Rule 144. OSI covenants that, upon any registration statement
covering Company securities becoming effective, it will file the reports
required to be filed by it under the Exchange Act and the rules and regulations
adopted by the Commission thereunder, and it will take such other action as any
Holder of Registrable Securities may reasonably request, all to the extent
required from time to time to enable such Holder to sell Registrable Securities
without registration under the 1933 Act within the limitation of the exemptions
provided by (a) Rule 144 under the 1933 Act, as such Rule may be amended from
time to time, or (b) any similar rule or regulation hereafter adopted by the
Commission. Upon the request of any Holder of Registrable Securities, OSI will
deliver to such Holder a written statement as to whether it has complied with
such requirements.
9.2 Issuance of New Certificates. Each Holder who ceases to be a Holder
may thereafter surrender any certificate or certificates of OSI Common Stock
bearing legends restricting the transferability thereof and shall be entitled,
upon such surrender, to receive in exchange therefor a certificate or
certificates, free of such restrictive legends, representing the same number of
shares of OSI Common Stock; provided, however, that prior to the issuance of
such unrestricted shares of OSI Common Stock, OSI may require an opinion of its
counsel, at its expense, in customary form and reasonably satisfactory to OSI to
the effect that the issuance of such unrestricted shares is permitted under
applicable federal and state securities laws. If any such certificate for OSI
Common Stock is to be issued in a name other than that in which the surrendered
certificate is registered, it shall be a condition of such exchange that the
certificate so surrendered shall be properly endorsed or otherwise in proper
form for transfer and that the person requesting such exchange shall have paid
any transfer and other taxes required by reason of such issuance of certificates
of OSI Common Stock in a name other than that of the registered holder of the
certificate surrendered, or shall have established to the satisfaction of OSI
and its transfer agent that such tax has been paid or is not applicable.
9.3 Waiver and Amendment. Any provision of this Agreement may be waived
at any time by the party that is, or whose stockholders or partners are,
entitled to the benefits thereof. This Agreement may not be amended or
supplemented at any time, except by an instrument in writing signed on behalf of
the Holders of 50% or more of the Registrable Securities.
9.4 Assignment. The registration rights of Holders under this Agreement
may be assigned and transferred to any transferee acquiring Registrable
Securities, other than in a public offering pursuant to a registration statement
or pursuant to Rule 144; provided, however, that OSI is given written notice by
the Holder at the time of such transfer stating the name and address of the
transferee and identifying the Registrable Securities with respect to which the
rights under this Agreement are being assigned and the transferee agrees to be
bound by the terms and conditions hereof and agrees to execute and deliver to
OSI an acknowledgement and agreement to such effect.
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<PAGE> 15
This Agreement shall also be binding upon and enforceable by the heirs,
executors, or other personal representatives of the Holders and the successors
and assigns of OSI.
9.5 Notices. All notices and other communications hereunder shall be in
writing and shall be deemed to have been duly given when delivered if delivered
in person, by cable, telegram, telex, or telecopy and shall be deemed to have
been duly given three business days after deposit with a United States post
office if delivered by registered or certified mail (postage prepaid, return
receipt requested) to the respective parties as follows:
if to OSI:
Oil States International, Inc.
Three Allen Center
333 Clay Street, Suite 333460
Houston, Texas 77002
Attention: Cindy B. Taylor
Telephone: (713) 652-0588
Facsimile: (713) 652-0499
with a copy to:
Locke Liddell & Sapp LLP
2200 Ross Avenue, Suite 2200
Dallas, Texas, 75201
Attention: Maury Purnell
Telephone: (214) 740-8000
Facsimile: (214) 740-8800
if to HWC:
HWC Energy Services, Inc.
811 Dallas, Suite 1322
Houston, Texas 77002
Attention: Rob Hampton
Telephone: (713) 750-0600
Facsimile: (713) 750-0058
with a copy to:
Jones, Walker, Waechter, Poitevent, Carrere & Denegre, L.L.P
201 St. Charles Avenue
New Orleans, Louisiana 70170
Attention: Bill Masters
Telephone: (504) 582-8000
Facsimile: (504) 582-8549
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<PAGE> 16
if to Sooner:
Sooner Inc.
1221 Lamar Street, Suite 1010
Houston, Texas 77010
Attention: Chris Cragg
Telephone: (713) 759-1200
Facsimile: (713) 759-0442
with a copy to:
Scott F. Zarrow
900 Mid-Continent Tower
401 S. Boston
Tulsa, OK 74103
Telephone: (918) 295-8054
Facsimile: (918) 295-8048
and if to a Holder, at such Holder's address as shown on OSI's stock transfer
records or to such other address as any party may have furnished to the others
in writing in accordance herewith, except that notices of change of address
shall only be effective upon receipt.
9.6 Governing Law. This Agreement shall be governed by and construed in
accordance with the substantive law of the State of Delaware without giving
effect to the principles of conflicts of law thereof.
9.7 Severability. If any term or other provisions of this Agreement is
invalid, illegal or incapable of being enforced by any rule of law or public
policy, all other conditions and provisions of this Agreement shall nevertheless
remain in full force and effect so long as the economic or legal substance of
the transactions contemplated hereby is not affected in any material manner to
any party. Upon such determination that any term or other provision is invalid,
illegal or incapable of being enforced, the parties hereto shall negotiate in
good faith to modify this Agreement so as to effect the original intent of the
parties as closely as possible.
9.8 Counterparts. This Agreement may be executed in counterparts, each
of which shall be an original document, but all of which together shall
constitute one and the same agreement.
9.9 Headings. The Section headings herein are for convenience only and
are not intended to be part of or to affect the meaning or interpretation of the
Agreement.
9.10 Entire Agreement; Third Party Beneficiaries. This Agreement,
including the exhibits hereto and the documents, information supplied in
writing, and instruments referred to herein, constitute the entire agreement and
supersedes all other prior agreements, and understandings, both oral and
written, among the parties or any of them, with respect to the subject matter
hereof. Except as set forth in Section 3(c) hereof with respect to holders of
PTI Exchangeable Shares, this Agreement shall be binding upon and inure solely
to the benefit of the parties hereto, and nothing
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<PAGE> 17
in this Agreement and the documents, information supplied in writing, and
instruments referred to herein, express or implied, is intended to confer upon
any other person any rights or remedies of any nature whatsoever under or by
reason of this Agreement. For greater certainty, Section 3(c) hereof, and the
application of this Agreement contemplated thereby, shall inure to the benefit
of, and shall be enforceable against the parties hereto by, the holders of PTI
Exchangeable Shares.
9.11 Termination. The provisions of Sections 2, 3, 4, 5 and 6 shall
terminate and be of no further force or effect on or after the tenth anniversary
of the date hereof.
[SIGNATURE PAGES FOLLOW]
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<PAGE> 18
IN WITNESS WHEREOF, the parties to this Agreement have caused it to be
executed as of the date first above written.
OIL STATES INTERNATIONAL, INC.
By:
----------------------------------
Name:
--------------------------------
Title:
-------------------------------
HWC ENERGY SERVICES, INC.
By:
----------------------------------
Name:
--------------------------------
Title:
-------------------------------
SOONER INC.
By:
----------------------------------
Name:
--------------------------------
Title:
-------------------------------
SCF III, L.P.
By: SCF II, L.P.,
its General Partner
By: L.E. Simmons & Associates, Incorporated,
its General Partner
By:
------------------------
Name:
----------------------
Title:
---------------------
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<PAGE> 19
SCF IV, L.P.
By: SCF-IV, G.P., Limited Partnership,
its General Partner
By: L.E. Simmons & Associates, Incorporated,
its General Partner
By:
----------------------------
Name:
--------------------------
Title:
-------------------------
OSI REGISTRATION RIGHTS HOLDERS
David Altholff*
Charles Armbrust*
The Bovaird Supply Co.*
James Cauble*
Chase Manhattan Investment Holdings, Inc.*
J. Kelly Elliot*
Donald Gregory*
T. L. Gregory*
T. L. Gregory, Trustee for the Betty Sue Gregory
Trust*
Howard Hughes*
The Huntfield Trust Limited*
Michael Kief*
Werner Kief*
Klaper (UK) Ltd*
Menikoff Family Partnership*
J. Michael Newell*
Richard Schultz*
Stephen Wells*
James Woods*
*By:
----------------------------------------------
Attorney in Fact
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<PAGE> 20
HWC REGISTRATION RIGHTS HOLDERS
Tommy Parkhill*
Gerald Loring*
James L. Skeans*
Chad W. Parkhill Trust*
Shelly L. Parkhill Trust*
Charles Helms*
Don Cobb*
Gary Rosenthal*
Jay Trahan*
John Lauletta*
Larry Pavlicek*
Richard Broussard*
Robert W. Hampton*
Shanna Trosclair*
*By:
--------------------------------------
Attorney in Fact
20
<PAGE> 21
SOONER REGISTRATION RIGHTS HOLDERS
Zarrow Operating Company*
Stuart A. Zarrow*
Judith Z. Kishner*
Gail Z. Richards*
Foreman Investment Capital, LLC*
*By:
--------------------------------------
Attorney in Fact
