SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, DC 20549
SCHEDULE 13D
(Amendment No. 4)*
INFORMATION TO BE INCLUDED IN STATEMENTS FILED PURSUANT
TO RULE 13d-1(a) AND AMENDMENTS THERETO FILED PURSUANT TO
RULE 13d-2(a)
Atwood Oceanics, Inc.
(Name of Issuer)
Common Stock, par value $1.00 per share
(Title of Class of Securities)
050095 10 8
(CUSIP Number)
Steven R. Mackey
Vice President, Secretary & General Counsel
Helmerich & Payne, Inc.
1437 South Boulder Avenue, Suite 1400
Tulsa, Oklahoma 74119
(918)742-5531
(Name, Address and Telephone Number of Person
Authorized to Receive Notices and Communications)
July 21, 2004
(Date of Event which Requires
Filing of this Statement)
If the filing person has previously filed a statement on Schedule 13G to report
the acquisition that is the subject of this Schedule 13D, and is filing this
schedule because of Rule 13d-1(e), 13d-1(f) or 13d-1(g), check the following box
[ ].
Note: Schedules filed in paper format shall include a signed original and five
copies of the schedule, including all exhibits. See Rule 13d-7 for other parties
to whom copies are to be sent.
* The remainder of this cover page shall be filled out for a reporting person's
initial filing on this form with respect to the subject class of securities, and
for any subsequent amendment containing information which would alter
disclosures provided in a prior cover page.
The information required on the remainder of this cover page shall not be deemed
to be "filed" for the purpose of Section 18 of the Securities Exchange Act of
1934 (the "Act") or otherwise subject to the liabilities of that section of the
Act but shall be subject to all other provisions of the Act (however, see the
Notes).
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CUSIP No. 050095 10 8 13D Page 2 of 12 Pages
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1 NAME OF REPORTING PERSONS, I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS
(ENTITIES ONLY)
Helmerich & Payne, Inc.
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2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (a) [ ]
(b) [x]
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3 SEC USE ONLY
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4 SOURCE OF FUNDS
WC
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5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEM
2(d) OR 2(e) [ ]
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6 CITIZENSHIP OR PLACE OF ORGANIZATION
Delaware
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NUMBER OF 7 SOLE VOTING POWER
SHARES 3,000,000
BENEFICIALLY -----------------------------------------------------------
OWNED BY 8 SHARED VOTING POWER
EACH None
REPORTING -----------------------------------------------------------
PERSON 9 SOLE DISPOSITIVE POWER
WITH 3,000,000
-----------------------------------------------------------
10 SHARED DISPOSITIVE POWER
None
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11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
3,000,000
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12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES [ ]
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13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
21.6%
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14 TYPE OF REPORTING PERSON
CO
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CUSIP No. 050095 10 8 13D Page 3 of 12 Pages
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1 NAME OF REPORTING PERSONS, I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS
(ENTITIES ONLY)
Helmerich & Payne International Drilling Co.
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2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (a) [ ]
(b) [x]
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3 SEC USE ONLY
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4 SOURCE OF FUNDS
WC
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5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEM
2(d) OR 2(e) [ ]
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6 CITIZENSHIP OR PLACE OF ORGANIZATION
Delaware
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NUMBER OF 7 SOLE VOTING POWER
SHARES 3,000,000
BENEFICIALLY -----------------------------------------------------------
OWNED BY 8 SHARED VOTING POWER
EACH None
REPORTING -----------------------------------------------------------
PERSON 9 SOLE DISPOSITIVE POWER
WITH 3,000,000
-----------------------------------------------------------
10 SHARED DISPOSITIVE POWER
None
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11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
3,000,000
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12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES [ ]
--------------------------------------------------------------------------------
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
21.6%
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14 TYPE OF REPORTING PERSON
CO
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This Amendment No. 4 (this "Amendment") amends and restates, in its
entirety, the Schedule 13D dated July 7, 1977, as amended by amendments dated
August 31, 1977, September 23, 1977 and March 13, 1980.
Item 1. Security and Issuer.
This Amendment relates to shares of common stock, par value $1.00 per
share (the "Shares"), of Atwood Oceanics, Inc., a Texas corporation (the
"Company"). The principal executive offices of the Company are located at 15835
Park Ten Place Drive, Houston, Texas 77084.
Item 2. Identity and Background.
(a)-(c) and (f). This Amendment is being filed by Helmerich & Payne,
Inc., a Delaware corporation ("H&P"), and Helmerich & Payne International
Drilling Co., a Delaware corporation ("H&P Drilling" and together with H&P, the
"Reporting Persons"). H&P Drilling is a direct, wholly-owned subsidiary of H&P.
The principal business of H&P and its subsidiaries is contract drilling of oil
and gas wells for other persons. The principal business address of both
Reporting Persons is 1437 South Boulder Avenue, Tulsa, Oklahoma 74119.
Certain information pertaining to each executive officer and director
of (i) H&P is set forth in Annex A hereto and incorporated herein by reference
and (ii) H&P Drilling is set forth in Annex B hereto and incorporated herein by
reference.
(d). During the last five years, neither of the Reporting Persons nor,
to the best of their knowledge, any of the executive officers or directors of
either of the Reporting Persons has been convicted in a criminal proceeding
(excluding traffic violations or similar misdemeanors).
(e). During the last five years, neither of the Reporting Persons nor,
to the best of their knowledge, any of the executive officers or directors of
either of the Reporting Persons has been a party to a civil proceeding of a
judicial or administrative body of competent jurisdiction and as a result of
such proceeding was or is subject to a judgment, decree or final order enjoining
future violations of, or prohibiting or mandating activities subject to, federal
or state securities laws or finding any violation with respect to such laws.
Item 3. Source and Amount of Funds or Other Consideration.
H&P and H&P Drilling acquired 1,640,248 Shares and 1,359,752 Shares,
respectively, in various transactions, including original issuances from the
Company, private sales, open market purchases and stock splits, beginning in
1970. The source of all funds used in acquiring such Shares was the working
capital of the Reporting Persons. No part of the purchase price of any of the
Shares acquired by the Reporting Persons is or was represented by funds or other
consideration borrowed or otherwise obtained for the purpose of acquiring,
Page 4 of 12 Pages
holding or trading the Shares. On September 6, 2002, H&P assigned all of the
shares then held by it to H&P Drilling. As a result of such assignment, H&P
Drilling is the direct, beneficial owner of an aggregate of 3,000,000 Shares and
H&P, through its control of H&P Drilling, is the indirect, beneficial owner of
such Shares. The Reporting Persons' cost basis in such Shares is approximately
$11,000,000.
Item 4. Purpose of Transaction.
The Reporting Persons acquired the Shares reported herein for
investment purposes.
Pursuant to a Shareholder's Agreement and Registration Rights
Agreement, dated as of July 19, 2004 (the "Registration Rights Agreement"),
entered into by and between the Company and H&P Drilling, a copy of which is
attached as Exhibit 1.1 hereto and is incorporated herein by reference, the
Company agreed to, as soon as reasonably practicable, file a registration
statement (the "Registration Statement") with the Securities and Exchange
Commission (the "SEC") relating to the sale, from time-to-time, of up to
3,000,000 Shares issued to H&P Drilling. The Company filed the Registration
Statement on Form S-3 with the SEC on July 21, 2004.
Consistent with their pursuit of a strategy of focusing on their core
drilling business, the Reporting Persons intend to evaluate their entire
investment portfolio, including the Shares, and their cash requirements on a
continuous basis and expect that they may seek to dispose of all or a portion of
the Shares not sold in the Simultaneous Public Offering when and as necessary,
from time-to-time, to fund their corporate needs. Any such disposition will
depend upon market conditions, the Reporting Persons' funding needs and other
factors that the Reporting Persons may deem material to their investment
decisions. Other than as set forth in this Amendment, neither of the Reporting
Persons nor, to the best of their knowledge, any of the executive officers or
directors of either of the Reporting Persons has any plans or proposals which
relate to or would result in any of the events described by Items 4(a) through
4(j) of Schedule 13D. As set forth in the Registration Rights Agreement, H&P
Drilling, subject to the terms and conditions set forth in the Registration
Rights Agreement, may offer to sell up to 1,000,000 of the Shares owned by it
concurrently with a public offering of up to 1,000,000 Shares by the Company (a
"Simultaneous Public Offering").
Upon effectiveness of the Registration Statement and subject to market
conditions and certain transfer restrictions set forth in the Registration
Rights Agreement and described in Item 6 hereof, the Reporting Persons may, from
time-to-time, sell all or part of the Shares covered by the Registration
Statement on terms determined at the time such Shares are offered for sale, to
or through underwriters, directly to other purchasers or broker-dealers, through
dealers or other persons acting as agents, through other methods described in
the Registration Statement, as the same may be amended or supplemented, through
any other method permitted by law or through a combination of such methods. The
distribution of such Shares may be effected from time-to-time in one or more
transactions at a fixed price or prices (which may be changed), at market prices
prevailing at the time of sale, at prices related to such prevailing market
prices or at negotiated prices.
Page 5 of 12 Pages
This Amendment is not an offer to sell or the solicitation of an offer
to buy any Shares. No such offer, solicitation or sale will be made by the
Reporting Persons except in compliance with applicable securities laws.
Item 5. Interest in Securities of the Issuer.
(a) and (b). The Reporting Persons currently have beneficial ownership
of 3,000,000 Shares. This amount constitutes approximately 21.6% of the
outstanding Shares, based upon a total of 13,864,201 Shares currently
outstanding. The number of Shares outstanding is based on the number of Shares
outstanding as of June 30, 2004, as disclosed in the Registration Statement.
Each of the Reporting Persons has the sole power to vote or direct the vote and
the sole power to dispose or direct the disposition of the Shares beneficially
owned by the Reporting Persons.
Hans Helmerich, who is (i) a Director, President and Chief Executive
Officer of H&P, (ii) a Director, Executive Vice President and Chief Executive
Officer of H&P Drilling and (iii) a Director of the Company, beneficially owns
2,000 Shares, all of which may be acquired upon the exercise of options which
are currently exercisable. To the best knowledge of each Reporting Person, Mr.
Hans Helmerich has the sole power to vote or direct the vote and the sole power
to dispose or direct the disposition of the Shares beneficially owned by him.
W. H. Helmerich, III, who is (i) Chairman of H&P and (ii) a former
Director of the Company, beneficially owns 1,500 Shares, all of which may be
acquired upon the exercise of options which are currently exercisable. To the
best knowledge of each Reporting Person, Mr. W. H. Helmerich has the sole power
to vote or direct the vote and the sole power to dispose or direct the
disposition of the Shares beneficially owned by him.
George S. Dotson, who is (i) a Director and Vice President, Drilling
of H&P, (ii) a Director, President and Chief Operating Officer of H&P Drilling
and (iii) a Director of the Company, beneficially owns 2,000 Shares, all of
which may be acquired upon the exercise of options which are currently
exercisable. To the best knowledge of each Reporting Person, Mr. Dotson has the
sole power to vote or direct the vote and the sole power to dispose or direct
the disposition of the Shares beneficially owned by him.
The number of Shares owned by Messrs. Helmerich and Dotson, both
individually and in the aggregate, represent less than 1% of the outstanding
Shares of the Company. The Reporting Persons disclaim beneficial ownership of
all such Shares.
To the best knowledge of each Reporting Person, except as set forth
above, none of the executive officers or directors of either of the Reporting
Persons beneficially own any Shares.
(c) Neither of the Reporting Persons nor, to the best of their
knowledge, any of the executive officers or directors of either of the Reporting
Persons have engaged in any transaction in Shares during the past 60 days.
Page 6 of 12 Pages
(d) No other person is known to have the right to receive or the power
to direct the receipt of dividends from, or the proceeds from the sale of,
Shares.
(e) Not applicable.
Item 6. Contracts, Arrangements, Understandings or Relationships with Respect
to Securities of the Issuer.
Pursuant to the Registration Rights Agreement, the Company agreed to
file the Registration Statement, as soon as reasonably practicable. As set forth
in the Registration Rights Agreement, H&P Drilling, subject to the terms and
conditions set forth in the Registration Rights Agreement, may offer to sell up
to 1,000,000 of the Shares owned by it in a Simultaneous Public Offering. The
Registration Rights Agreement provides that the Reporting Persons may not,
without the consent of the managing underwriter, sell, offer to sell, grant any
option for the sale of, pledge or otherwise dispose of any of the Shares (other
than as part of a Simultaneous Public Offering) for a period that began on the
date of the Registration Rights Agreement and that ends 180 days after the
completion of the Simultaneous Public Offering. If a Simultaneous Public
Offering is not effected, then such transfer restriction would instead apply
during the period beginning seven days prior to and ending 90 days after the
underwritten public offering of equity securities by the Company. The foregoing
discussion is qualified in its entirety by reference to the Registration Rights
Agreement, which is incorporated herein by reference.
Hans Helmerich and George S. Dotson are each currently Directors of
the Company. W. H. Helmerich, III is a former Director of the Company. Messrs.
Helmerich and Dotson have each received options to acquire Shares pursuant to
the Company's Stock Incentive Plan. Generally, each option has a ten year term
and 25% of the total number of options granted became or are to become
exercisable at the end of one year, two years, three years and four years,
respectively, from the date of grant.
Item 7. Material to be Filed as Exhibits.
Exhibit 1.1 Shareholder's Agreement and Registration Rights
Agreement, dated July 19, 2004, between Atwood
Oceanics, Inc. and Helmerich & Payne International
Drilling Co.
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Page 7 of 12 Pages
SIGNATURES
After reasonable inquiry and to the best of my knowledge and belief, I
certify that the information in this statement is true, complete and correct.
Dated: July 21, 2004
HELMERICH & PAYNE, INC.
By: /s/ Steven R. Mackey
--------------------------
Name: Steven R. Mackey
Title: Vice President
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HELMERICH & PAYNE INTERNATIONAL
DRILLING CO.
By: /s/ Steven R. Mackey
--------------------------
Name: Steven R. Mackey
Title: Vice President
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Page 8 of 12 Pages
Annex A
Information Concerning the Directors and Executive Officers
of Helmerich & Payne, Inc.
Set forth below are the name, current business address, and the
present principal occupation or employment of each director and executive
officer of Helmerich & Payne, Inc. Each such person is a citizen of the United
States.
Name and Current Present Principal Occupation
Business or Residence Address or Employment
----------------------------- ----------------------------
William L. Armstrong Chairman of Cherry Creek
Cherry Creek Mortgage Company Mortgage Company
1625 Broadway
Suite 780
Denver, CO 80202
Glenn A. Cox Retired
401 SE Dewey, Suite 318
Bartlesville, OK 74003
George S. Dotson Vice President, Drilling of Helmerich &
Helmerich & Payne, Inc. Payne, Inc. and President and Chief
1437 South Boulder Ave., Suite 1400 Operating Officer of Helmerich & Payne
Tulsa, OK 74119-3623 International Drilling Co.
Douglas E. Fears Vice President and Chief Financial
Helmerich & Payne, Inc. Officer of Helmerich & Payne, Inc.
1437 South Boulder Ave., Suite 1400 and Vice President and Treasurer of
Tulsa, OK 74119-3623 Helmerich & Payne International
Drilling Co.
Hans Helmerich President and Chief Executive Officer of
Helmerich & Payne, Inc. Helmerich & Payne, Inc. and Executive
1437 South Boulder Ave., Suite 1400 Vice President and Chief Executive Officer
Tulsa, OK 74119-3623 of Helmerich & Payne International Drilling
Co.
W. H. Helmerich, III Chairman of Helmerich & Payne, Inc.
Helmerich & Payne, Inc.
1437 South Boulder Ave., Suite 1400
Tulsa, OK 74119-3623
Steven R. Mackey Vice President, General Counsel and
Helmerich & Payne, Inc. Secretary of Helmerich & Payne, Inc.
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1437 South Boulder Ave., Suite 1400 Vice President and Secretary of Helmerich
Tulsa, OK 74119-362 & Payne International Drilling Co.
Page 9 of 12 Pages
Paula Marshall-Chapman Chief Executive Officer of The Bama
The Bama Companies, Inc. Companies, Inc.
P.O. Box 4829
Tulsa, OK 74159
L.F. Rooney, III Chairman and Chief Executive Officer of
Rooney Holdings, Inc. Rooney Holdings, Inc.
5601 S. 122nd East Avenue
Tulsa, OK 74146
Edward B. Rust, Jr. Chairman and Chief Executive Officer of
State Farm Insurance Companies State Farm Insurance Companies
One State Farm Plaza
Bloomington, IL 61710
John D. Zeglis Chairman and Chief Executive Officer of
AT&T Wireless Services, Inc. AT&T Wireless Services, Inc.
150 Mt. Airy Road
Basking Ridge, NJ 07920
Page 10 of 12 Pages
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Annex B
Information Concerning the Directors and Executive Officers
of Helmerich & Payne International Drilling Co.
Set forth below are the name, current business address, and the
present principal occupation or employment of each director and executive
officer of Helmerich & Payne International Drilling Co. Each such person is a
citizen of the United States.
Name and Current Present Principal Occupation
Business Address or Employment
---------------- -----------------------------
George S. Dotson Vice President, Drilling of Helmerich &
Helmerich & Payne, Inc. Payne, Inc. and President and Chief
1437 South Boulder Ave., Suite 1400 Operating Officer of Helmerich & Payne
Tulsa, OK 74119-3623 International Drilling Co.
Douglas E. Fears Vice President and Chief Financial
Helmerich & Payne, Inc. Officer of Helmerich & Payne, Inc.
1437 South Boulder Ave., Suite 1400 and Vice President and Treasurer of
Tulsa, OK 74119-3623 Helmerich & Payne International
Drilling Co.
Hans Helmerich President and Chief Executive Officer of
Helmerich & Payne, Inc. Helmerich & Payne, Inc. and Executive
1437 South Boulder Ave., Suite 1400 Vice President and Chief Executive Officer
Tulsa, OK 74119-3623 of Helmerich & Payne International Drilling
Co.
Steven R. Mackey Vice President, General Counsel and
Helmerich & Payne, Inc. Secretary of Helmerich & Payne, Inc.
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1437 South Boulder Ave., Suite 1400 Vice President and Secretary of Helmerich
Tulsa, OK 74119-362 & Payne International Drilling Co.
Page 11 of 12 Pages
EXHIBIT INDEX
Exhibit
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Exhibit 1.1 Shareholder's Agreement and Registration Rights Agreement, dated
July 19, 2004, between Atwood Oceanics, Inc. and Helmerich & Payne
International Drilling Co.
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Page 12 of 12 Pages
EXHIBIT 1.1
SHAREHOLDER'S AGREEMENT AND REGISTRATION RIGHTS AGREEMENT
THIS SHAREHOLDER'S AGREEMENT AND REGISTRATION RIGHTS AGREEMENT (the
"Agreement") is entered into as of July 19, 2004 by and among Atwood Oceanics,
Inc., a Texas corporation (the "Company"), and Helmerich & Payne International
Drilling Co., a Delaware corporation ("H & P").
RECITALS
WHEREAS, H & P owns 3,000,000 shares of Common Stock (as hereinafter
defined) of the Company;
WHEREAS, H & P desires to sell up to 1,000,000 shares of Common Stock
through a registered Public Offering (as hereinafter defined), subject to market
conditions, and may determine to sell additional shares of Common Stock through
one or more registered Public Offerings from time-to-time thereafter;
WHEREAS, the Company agrees to file a Shelf Registration Statement (as
hereinafter defined), to effectuate the sale of shares of Common Stock by H & P
on the terms and conditions set forth herein;
WHEREAS, the Company and H & P wish to provide for certain arrangements
with respect to the registration of shares of Common Stock of the Company under
the Securities Act; and
AGREEMENT
NOW, THEREFORE, in consideration of the mutual promises and obligations
contained herein, the parties agree as follows:
1. CERTAIN DEFINITIONS. As used in this Agreement, the following terms will
have the following respective meanings:
"Agreement" is defined in the Preamble.
"Best Efforts" means the commercially reasonable efforts that a prudent
Person desirous of achieving a result would use in similar circumstances to
ensure that such result is achieved as expeditiously as reasonably possible.
"Business Day" means any day that is not a Saturday, a Sunday or a day on
which banks in the State of New York are generally closed for business.
"Common Stock" means the Common Stock, $1.00 par value, of the Company.
"Commission" means the U.S. Securities and Exchange Commission, or any
other federal agency at the time administering the Securities Act or the
Exchange Act.
"Company" is defined in the Preamble.
"Covered Person" is defined in Section 5.1 of this Agreement.
"Effectiveness Period" means the period beginning on the date on which the
Shelf Registration Statement becomes effective, so as to permit the offering and
sale of Registrable Shares on a continuous basis, and ending on the date on
which the Selling Holder shall have sold or otherwise disposed of all of the
Registrable Shares included in such Shelf Registration Statement, not to exceed
two (2) years from the date on which the Shelf Registration Statement becomes so
effective (subject to the extension of such period pursuant to Sections 3.9
and/or 3.11 hereof).
"Exchange Act" means the Securities Exchange Act of 1934, and any successor
to such statute, and the rules and regulations of the Commission issued under
such Act, as they each may, from time to time, be amended and in effect.
"H & P" is defined in the Preamble.
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"Holder" means any Person owning Registrable Shares.
------
"Losses" and "Loss" are defined in Section 5.1 of this Agreement.
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"Majority in Interest of the Registrable Shares" means shares held by H & P
immediately prior to the execution of this Agreement.
"Person" means any individual, partnership, corporation, company,
association, trust, joint venture, limited liability company, unincorporated
organization, entity or division, or any government, governmental department or
agency or political subdivision thereof.
"Public Offering" means a public offering and sale of Common Stock for cash
pursuant to an effective Registration Statement.
"Register," "registered," and "registration" refer to a registration
effected by preparing and filing one or more Registration Statements, amendments
or supplements to such Registration Statements, or similar documents in
compliance with the Securities Act and any applicable rules and regulations
promulgated thereunder (including, in the case of a Registration Statement on
Form S-3, Rule 415) and the automatic effectiveness or the declaration or
ordering of effectiveness of such Registration Statement, an amendment or
supplement to such Registration Statement, or similar document by the
Commission.
"Registrable Shares" means all of the shares of Common Stock currently
issued or issued at any future time to H & P, including by way of stock dividend
or stock split or in connection with a combination of shares, recapitalization,
merger, consolidation, other reorganization or otherwise.
"Registration Expenses" means all expenses incurred by the Company in
complying with Sections 2 and 3 hereof, including, without limitation, all
registration and filing fees, listing fees, all fees and expenses of complying
with securities or blue sky laws, all printing expenses, fees and disbursements
of counsel for the Company and its independent public accountants, including the
2
expenses of any special audits required by or incident to such performance and
compliance, and legal fees and disbursements of the Selling Holder, and
including underwriting discounts, selling commissions and applicable transfer
taxes, if any.
"Registration Statement" means a registration statement filed by the
Company with the Commission for a Public Offering under the Securities Act
(other than a registration statement on Form S-8 or Form S-4, or any other form
for a similar limited purpose).
"Rule 144" means Rule 144 promulgated under the Securities Act, and any
successor rule or regulation thereto, and in the case of any referenced section
of such rule, any successor section thereto, collectively and as from time to
time amended and in effect.
"Rule 144A" means Rule 144A promulgated under the Securities Act, and any
successor rule or regulation thereto, and in the case of any referenced section
of such rule, any successor section thereto, collectively and as from time to
time amended and in effect.
"Rule 415" means Rule 415 promulgated under the Securities Act, or any
successor rule or regulation providing for offering securities on a continuous
or delayed basis.
"Securities Act" means the Securities Act of 1933, and any successor to
such statute, and the rules and regulations of the Commission issued under such
Act, as they each may, from time to time, be amended and in effect.
"Selling Holder" means any Holder on whose behalf Registrable Shares are
registered pursuant to Section 2 hereof.
"Shelf Registration Statement" means a "shelf" Registration Statement under
Rule 415.
"Simultaneous Public Offering" is defined in Section 2.2 of this Agreement.
2. REQUIRED REGISTRATION AND PUBLIC OFFERINGS.
2.1. Shelf Registration. As soon as reasonably practicable, the Company
will file a Shelf Registration Statement relating to the sale of the Registrable
Shares by the Holders from time-to-time in accordance with the methods of
distribution elected by such Holders and set forth in such Shelf Registration
Statement.
2.2. Public Offerings. The parties agree that, (i) subject to Section 4.2
hereof and market conditions, up to 1,000,000 Registrable Shares (such number to
be equitably adjusted to reflect any stock split, reverse stock split or similar
transaction) may be offered for sale concurrently with a primary offering of up
to 1,000,000 shares (such number to be equitably adjusted to reflect any stock
split, reverse stock split or similar transaction) of Common Stock by the
Company (the "Simultaneous Public Offering") and (ii) thereafter, subject to
Section 3.10 hereof, the Holders may determine to offer for sale any Registrable
Shares not sold in the Simultaneous Public Offering in accordance with the
methods of distribution elected by the Holders and set forth in the Shelf
Registration Statement, including any amendments and supplements thereto.
3
2.3. Selection of Underwriter. The Company shall select the investment
banker(s) and manager(s) to administer the Simultaneous Public Offering. The
Selling Holders shall select the investment banker(s) and manager(s) to
administer any subsequent Public Offering solely of Registrable Shares, subject
to the approval thereof by the Company, which approval shall not be unreasonably
withheld.
3. REGISTRATION PROCEDURES. The Company is required by the provisions of this
Agreement to use its Best Efforts to effect the registration of the Registrable
Shares under the Securities Act, and will take the actions described below in
this Section 3.
3.1. Registration Statement. The Company will prepare and file with the
Commission a Shelf Registration Statement with respect to the Registrable Shares
and use its Best Efforts to cause such Shelf Registration Statement to become
effective as promptly as practicable, but in any event within 60 days after the
filing of such Shelf Registration Statement.
3.2. Amendments and Supplements. The Company will prepare and file with the
Commission such amendments (including post-effective amendments) and supplements
to such Shelf Registration Statement and the prospectus used in connection
therewith as may be necessary to keep such Shelf Registration Statement
effective during the Effectiveness Period, and during such period the Company
will comply with the provisions of the Securities Act with respect to the
disposition of all Registrable Shares and other securities, if any, covered by
such Shelf Registration Statement until the end of the Effectiveness Period.
3.3. Cooperation. The Company will use its Best Efforts to (i) cooperate
with the Selling Holder in the disposition of the Registrable Shares covered by
4
the Shelf Registration Statement, (ii) enter into and perform customary
agreements related to the registration and disposition of the Registrable Shares
(including underwriting agreements in customary form) and (iii) cause key
executives of the Company and its subsidiaries to participate under the
direction of the managing underwriter in one or more "road shows" scheduled by
such managing underwriter in such locations and of such duration as in the
judgment of such managing underwriter are appropriate for underwritten
offerings; provided, that any such "road shows" shall not exceed five (5)
business days, shall not include more than one "road show" per year and (with
the exception of any "road show" conducted in connection with the Simultaneous
Public Offering) shall be at the expense of the Selling Holder.
3.4. Copies of Prospectus. The Company will furnish to each Selling Holder
(i) promptly after such Shelf Registration Statement is filed with the
Commission, such reasonable number of copies of the prospectus, including a
preliminary prospectus, in conformity with the requirements of the Securities
Act, and any amendments thereto, including financial statements and schedules
and all exhibits, (ii) upon the effectiveness of such Shelf Registration
Statement, such number of copies of the prospectus included in such Shelf
Registration Statement, including all amendments and supplements thereto, and
(iii) such other documents, in each case, as the Selling Holder may reasonably
request in order to facilitate the Public Offering of the Registrable Shares
owned by the Selling Holder.
3.5. Blue Sky Qualification. Prior to the Public Offering of any
Registrable Shares, the Company will use its Best Efforts to register or qualify
the Registrable Shares covered by the Shelf Registration Statement under the
securities or "blue sky" laws of such states or jurisdictions in the United
States as the Selling Holder may reasonably request, and do any and all other
acts and things that may be necessary or desirable to enable the Selling Holder
to consummate the public sale or other disposition in such jurisdictions of the
Registrable Shares covered by the Shelf Registration Statement, including
preparing and filing in those jurisdictions such amendments (including
post-effective amendments) and supplements to such registrations and
qualifications as may be necessary to maintain the effectiveness thereof during
the Effectiveness Period; provided, however, that the Company will not be
obligated to file any general consent to service of process or to qualify as a
foreign corporation in any jurisdiction in which it is not so qualified or to
subject itself to taxation in respect of doing business in any jurisdiction in
which it would not otherwise be so subject. The Company shall promptly notify
each Selling Holder of the receipt by the Company of any notification with
respect to the suspension of the registration or qualification of any
Registrable Shares for sale under the securities or "blue sky" laws of any
jurisdiction in the United States or its receipt of notice of the initiation or
threat of any proceeding for such purpose.
3.6. Opinion of Counsel; Comfort Letter. In the case of any underwritten
offering, the Company will use its Best Efforts to obtain all legal opinions,
auditors' consents and comfort letters and experts' cooperation as may be
required, including furnishing to each Selling Holder and each of the
underwriters of such Registrable Shares a signed counterpart, addressed or
confirmed to such Selling Holder and each of the underwriters, of (a) an opinion
of counsel for the Company (in form, scope and substance reasonably satisfactory
to the managing underwriter and the Selling Holder) and (b) a "cold comfort"
letter signed by the independent public accountants who have certified the
Company's financial statements included or incorporated by reference in such
Shelf Registration Statement, covering substantially the same matters as are
customarily covered in opinions of issuer's counsel and in accountants' letters
delivered to underwriters in underwritten public offerings of securities.
3.7. Listing and Transfer Agent. The Company will cause all Registrable
Shares covered by the Shelf Registration Statement to be listed on each
securities exchange or automated quotation system on which the Common Stock is
then listed. The Company will provide and cause to be maintained a transfer
agent and registrar for all Registrable Shares covered by the Shelf Registration
Statement not later than the effective date of such Shelf Registration
Statement.
3.8. General Compliance with Federal Securities Laws; Section 11(a) Earning
Statement. The Company will use its Best Efforts to comply with the Securities
Act, the Exchange Act and any other applicable rules and regulations of the
Commission, and make available to its securities holders, as soon as reasonably
practicable, an earning statement covering the period of at least 12 months
after the effective date of such Shelf Registration Statement, which earnings
statement shall be in a form complying with and satisfying Section 11(a) of the
Securities Act and any applicable regulations thereunder, including the
provisions of Rule 158.
3.9. Notice of Prospectus Defects. The Company will immediately notify the
Selling Holder, and (if requested by the Selling Holder) confirm such notice in
writing, of the happening of any event, as a result of which the prospectus
5
included or to be included in the Shelf Registration Statement, as then in
effect, includes an untrue statement of a material fact or omits to state any
material fact required to be stated therein or necessary to make the statements
therein not misleading in the light of the circumstances then existing (provided
that such notice shall not contain any material, non-public information). The
Company will promptly revise such prospectus as may be necessary so that such
prospectus shall not include an untrue statement of a material fact or omit to
state such a material fact required to be stated therein or necessary to make
the statements therein not misleading in the light of the circumstances then
existing. The Company will promptly deliver copies of such revised prospectus to
the Selling Holder. Following receipt of the revised prospectus, the Selling
Holder will be free to resume making offers of the Registrable Shares. The
Company will extend the period during which the Shelf Registration Statement
must be kept effective pursuant to this Agreement by the number of days during
the period from and including the date of giving such notice to and including
the date when the Selling Holder shall have received copies of the revised
prospectus.
3.10. H & P Lock-Up. H & P, Holder or Selling Holder will refrain, without
the consent of the managing underwriter, from the date of execution of this
Agreement to 180 days after the completion of the Simultaneous Public Offering,
from directly or indirectly selling, offering to sell, granting any option for
the sale of, pledging, or otherwise disposing of any Common Stock, whether in
accordance with the terms of Rule 144, Rule 144A or otherwise (except as part of
such Simultaneous Public Offering); provided, however, that should there be no
Simultaneous Public Offering, should there be an underwriter's cutback (as
described in Section 4.2 hereof) such that H & P, Holder or Selling Holder shall
not include any Registrable Shares in the Simultaneous Public Offering or should
H & P, Holder or Selling Holder notify the Company in writing that it does not
wish to proceed with the sale of Registrable Shares in the Simultaneous Public
Offering and irrevocably waives its right to participate in the Simultaneous
Public Offering, H & P, Holder or Selling Holder agrees to not effect any Public
Offering or distribution (including sales pursuant to Rule 144, Rule 144A or
otherwise) of Common Stock during the seven days prior to and the 90-day period
beginning on the effective date of any underwritten registered Public Offering
of equity securities of the Company or securities convertible or exchangeable
into or exercisable for equity securities of the Company, unless the
underwriters managing the registered Public Offering otherwise agree, and H & P,
Holder or Selling Holder will deliver an undertaking to the managing
underwriters (if requested) consistent with the covenants in this Section 3.10.
3.11. Delay of Registration and Suspension of Offering. If at any time
after the Shelf Registration Statement has become effective, the Company is
engaged in any plan, proposal or agreement with respect to any financing,
acquisition, recapitalization, reorganization or other material transaction or
development the public disclosure of which would be detrimental to the Company,
then the Company may direct that use of the prospectus contained in the Shelf
Registration Statement be suspended, as applicable, for a period of up to 30
days. The Company will notify all Holders requesting the registration or all
Selling Holders, as the case may be, of the delay or suspension. Each Selling
Holder will immediately discontinue any sales of Registrable Shares pursuant to
such Registration Statement until such Selling Holder has received copies of a
supplemented or amended prospectus or until such Selling Holder is advised in
writing by the Company that the then-current prospectus may be used and has
received copies of any additional or supplemental filings that are incorporated
6
or deemed incorporated by reference in such prospectus. The Company will extend
the period during which the Shelf Registration Statement must be kept effective
pursuant to this Agreement by the number of days during the period from and
including the date of giving such notice to and including the date when the
Selling Holder shall have received copies of the revised prospectus or notice
from the Company that the then-current prospectus may be used.
3.12. Participation by Selling Security Holders. In connection with the
preparation and filing of the Shelf Registration Statement with respect to the
Registrable Shares, and before filing any such Shelf Registration Statement or
any other document in connection therewith, the Company must give the
participating Holders and their underwriters, if any, and their respective
counsel and accountants, the opportunity to participate in the preparation of
such Shelf Registration Statement, each prospectus included therein or filed
with the Commission, each amendment thereof or supplement thereto and any
related underwriting agreement or other document to be filed, and give each of
the aforementioned Persons such access to its books and records and such
opportunities to discuss the business of the Company with its officers and the
independent public accountants who have certified its financial statements as
shall be necessary, in the opinion of such Holders, underwriters, counsel or
accountants, to conduct a reasonable investigation within the meaning of the
Securities Act.
3.13. Requests by Selling Holder. If requested by a Selling Holder, the
Company shall (i) as soon as practicable incorporate in a prospectus supplement
or post-effective amendment such information as a Selling Holder reasonably
requests to be included therein relating to the sale and distribution of
Registrable Shares, including, without limitation, information with respect to
the number of Registrable Shares being offered or sold, the purchase price being
paid therefor and any other terms of the offering of the Registrable Shares to
be sold in such other offering provided that such information is required to be
included in the Shelf Registration Statement by the Securities Act; (ii) as soon
as practicable make all required filings of such prospectus supplement or
post-effective amendment after being notified of the matters to be incorporated
in such prospectus supplement or post-effective amendment; and (iii) as soon as
practicable, supplement or make amendments to any Registration Statement if
reasonably requested by a Selling Holder of such Registrable Shares.
3.14. Stop Orders. The Company shall use its Best Efforts to prevent the
issuance of any stop order or other suspension of effectiveness of the Shelf
Registration Statement, or the suspension of the qualification of any of the
Registrable Shares for sale in any jurisdiction and, if such an order or
suspension is issued, to obtain the withdrawal of such order or suspension at
the earliest possible moment and to notify each Selling Holder of the issuance
of such order and the resolution thereof or its receipt of actual notice of the
initiation or threat of any proceeding for such purpose.
3.15. Certificates. The Company shall reasonably cooperate with the Selling
Holder and, to the extent applicable, facilitate the timely preparation and
delivery of certificates representing the Registrable Shares to be offered
pursuant to the Shelf Registration Statement and enable such certificates to be
in such denominations or amounts, as the case may be, as the Selling Holder may
reasonably request and registered in such names as the Selling Holder may
request.
7
3.16. Notice of Effectiveness. Within two business days after the Shelf
Registration Statement, or any amendment thereto, that includes the Registrable
Shares is declared effective by the Commission, the Company shall deliver, and
shall cause legal counsel for the Company to deliver, to the transfer agent for
such Registrable Shares (with copies to the Selling Holder) written confirmation
that such Shelf Registration Statement has been declared effective by the
Commission.
3.17. Governmental Approvals. The Company shall use its Best Efforts to
cause the Registrable Shares covered by the Shelf Registration Statement to be
registered with or approved by such other governmental agencies or authorities
as may be necessary to consummate the disposition of such Registrable Shares.
3.18. Requests for Information. In connection with the Shelf Registration
Statement, H & P, Holder and Selling Holder shall furnish to the Company in
writing such information as the Company reasonably requests in writing for use
in connection with the Shelf Registration Statement or prospectus.
4. CERTAIN OTHER PROVISIONS.
4.1. Additional Procedures. Selling Holder will take all such actions and
execute all such documents and instruments that are reasonably requested in
writing by the Company to effect the sale of their shares in any Public
Offering, including, without limitation, being parties to the underwriting
agreement entered into by the Company and any other Selling Holder in connection
therewith. In addition, each Selling Holder will furnish to the Company such
information regarding such Selling Holder and the distribution proposed by such
Selling Holder as the Company may reasonably request in writing and as will be
required in connection with any registration, qualification or compliance
referred to in Section 3.
4.2. Underwriter's Cutback. Notwithstanding any other provision of this
Agreement, if the managing underwriter determines that the inclusion of all
shares requested to be offered in the Simultaneous Public Offering would
materially and adversely affect the offering, the managing underwriter may limit
the number of Registrable Shares to be included in such offering. In such case,
the number of shares that are entitled to be included in the Simultaneous Public
Offering will be reduced to a number deemed satisfactory by the managing
underwriter so as to include, first, up to 1,000,000 shares of Common Stock
offered by the Company, second, up to 1,000,000 Registrable Shares, if any, and,
thereafter, shares of Common Stock offered by the Company, if any.
4.3. Up-size and Over-Allotment. In the case of an up-size in the number of
shares of Common Stock to be included in the Simultaneous Public Offering, such
that the number of shares of Common Stock sold in the Simultaneous Public
Offering exceeds 2,000,000 shares, all such shares of Common Stock in excess of
2,000,000 shares will be offered by the Company, with no increase in the
Registrable Shares to be included in the Simultaneous Public Offering. In the
case of the exercise of an over-allotment by the underwriters in the
Simultaneous Public Offering, the number of shares of Common Stock that are
entitled to be included in the Simultaneous Public Offering will be increased
such that, first, the Company shall be entitled to offer an aggregate of up to
1,000,000 shares of Common Stock in the Simultaneous Public Offering, second,
8
the Holders shall be entitled to offer an aggregate of up to 1,000,000
Registrable Shares, if any, in the Simultaneous Public Offering and, thereafter,
the Company shall be entitled to offer all shares of Common Stock in excess of
2,000,000 shares, if any, with no further increase in the number of Registrable
Shares entitled to be included in the Simultaneous Public Offering.
4.4. Registration Expenses. The Company hereby agrees to pay all expenses
incurred for its sole benefit pursuant to this Agreement. H & P, Holder and
Selling Holder agree to pay all expenses incurred for their sole benefit
pursuant to this Agreement. With respect to the Simultaneous Public Offering,
any expenses which are for the joint benefit of the Company and H & P, Holder or
Selling Holder shall be allocated based upon the number of shares of Common
Stock sold by each such Person in the Simultaneous Public Offering. In any
event, H & P, Holder and Selling Holder shall pay filing fees allocable to the
Registrable Shares, fees and expenses, if any, of counsel or other advisers to H
& P, Holder or Selling Holder or underwriting discounts, brokerage fees and
commissions allocable to the Registrable Shares.
4.5. Termination of Status as Registrable Shares. Registrable Shares will
cease to be Registrable Shares and cease to have the rights accorded to such
shares under this Agreement upon the earliest to occur of the following events:
(x) such shares shall have been sold pursuant to an effective Registration
Statement under the Securities Act, (y) such shares shall have been sold
pursuant to a transaction under Rule 144, Rule 144A or (except for sales to
Helmerich & Payne, Inc. or any of its wholly-owned subsidiaries) otherwise or
(z) the termination of the Effectiveness Period.
4.6. Limitations on Subsequent Registration Rights. The Company will not,
without the prior written consent of Holders of at least a majority of the
Registrable Shares, enter into any agreements with any holder or prospective
holder of Company securities that grant such holder or prospective holder rights
to include securities of the Company in any Registration Statement, unless such
rights are subordinated to the rights granted to the Holders under this
Agreement.
5. INDEMNIFICATION.
5.1. Company Indemnification. To the fullest extent permitted by law, the
Company will indemnify and hold harmless each Selling Holder, its partners,
directors, officers, employees and agents and each other Person, if any, who
controls such Selling Holder (within the meaning of the Securities Act or the
Exchange Act) and each such controlling Person's partners, directors, officers,
employees and agents (each such Person being a "Covered Person") from and
against any and all losses, claims, damages, liabilities, costs (including,
without limitation, reasonable attorneys' fees) and expenses (collectively,
"Losses" and individually a "Loss"), joint or several, to which such Covered
Person may become subject, insofar as such Losses (or actions in respect
thereof) arise out of or are based upon (a) any untrue statement or alleged
untrue statement of any material fact contained in any Registration Statement
under which such Registrable Shares were registered under the Securities Act,
any preliminary or final prospectus contained in the Registration Statement, or
any amendment or supplement to such Registration Statement or (b) the omission
or alleged omission to state a material fact required to be stated therein or
necessary to make the statements therein not misleading; and the Company will
9
reimburse such Covered Person for any legal or any other expenses reasonably
incurred by such Covered Person in connection with investigating or defending
any such Loss or action; provided, however, that the Company will not be liable
to any Covered Person in any such case (x) to the extent that any such Loss
arises out of or is based upon any untrue statement or omission made in such
Registration Statement or prospectus, or any such amendment or supplement, in
reliance upon and in conformity with information furnished to the Company, in
writing, by or on behalf of such Covered Person or the Selling Holder
specifically for use in the preparation thereof or (y) in the case of a sale
directly by a Selling Holder (including a sale of such Registrable Shares
through any underwriter retained by such Selling Holder engaging in a
distribution solely on behalf of such Selling Holder), such untrue statement or
omission was contained in a preliminary prospectus and corrected in a final or
amended prospectus, and such Selling Holder failed to deliver a copy of the
final or amended prospectus at or prior to the confirmation of the sale of the
Registrable Shares to the person asserting any such Loss, in any case in which
such delivery is required by the Securities Act.
5.2. Seller Indemnification. In the event of any registration of any of the
Registrable Shares under the Securities Act pursuant to this Agreement, then to
the fullest extent permitted by law, each Selling Holder will indemnify and hold
harmless the Company, each of its directors, officers, employees and agents and
each Person (other than such Selling Holder), if any, who controls the Company
within the meaning of the Securities Act or the Exchange Act, against any Losses
to which the Company, such directors, officers, employees and agents or
controlling Person may become subject, insofar as such Losses (or actions in
respect thereof) arise out of or are based upon (a) any untrue statement of a
material fact contained in any Registration Statement under which such
Registrable Shares were registered under the Securities Act, any preliminary or
final prospectus contained in the Registration Statement, or any amendment or
supplement to the Registration Statement or (b) the omission to state a material
fact required to be stated therein or necessary to make the statements therein
not misleading, in each case only if the statement or omission was made in
reliance upon and in conformity with information furnished in writing to the
Company by or on behalf of such Selling Holder, specifically for use in
connection with the preparation of such Registration Statement, prospectus,
amendment or supplement.
5.3. Notice of Claims, etc. Promptly after receipt by an indemnified party
of notice of the commencement of any action or proceeding involving a claim of
the type referred to in the foregoing provisions of this Section 5, such
indemnified party will, if a claim in respect thereof is to be made against any
indemnifying party, give written notice to each such indemnifying party of the
commencement of such action; provided, however, that the failure or delay of any
indemnified party to give such notice will not relieve such indemnifying party
of its obligations under this Section 5, except to the extent that such
indemnifying party is materially prejudiced by such failure or delay. In case
any such action is brought against an indemnified party, each indemnifying party
will be entitled to participate in and to assume the defense thereof, jointly
with any other indemnifying party similarly notified, to the extent that it may
wish, with counsel reasonably satisfactory to such indemnified party, and
(subject to the following sentence) after written notice from an indemnifying
party to such indemnified party of its election so to assume the defense
thereof, such indemnifying party will not be liable to such indemnified party
for any legal or other expenses subsequently incurred by the latter in
connection with the defense thereof. The indemnified party may participate in
10
such defense at such party's expense; provided, however, that the indemnifying
party will pay such expense if representation of such indemnified party by the
counsel retained by the indemnifying party would be inappropriate due to actual
or potential conflict of interests between the indemnified party and any other
party represented by such counsel in such proceeding; provided, further, that in
no event will the indemnifying party be required to pay the expenses of more
than one law firm as counsel for all indemnified parties pursuant to this
sentence. If, within 30 days after receipt of the notice, such indemnifying
party has not elected to assume the defense of the action, such indemnifying
party will be responsible for any and all legal or other expenses reasonably
incurred by such indemnified party in connection with the defense of the action,
suit, investigation, inquiry or proceeding. An indemnifying party may, in the
defense of any such claim or litigation, consent to the entry of a judgment or
enter into a settlement without the consent of the indemnified party only if (i)
such judgment or settlement contains a general release of the indemnified party
in respect of such claims or litigation and (ii) such release is in form and
substance reasonably satisfactory to the indemnified party.
5.4. Contribution. If the indemnification provided for in Sections 5.1 or
5.2 hereof is unavailable to a party that would have been an indemnified party
under any such Section in respect of any Losses (or actions or proceedings in
respect thereof) referred to therein, then each party that would have been an
indemnifying party thereunder will, in lieu of indemnifying such indemnified
party, contribute to the amount paid or payable by such indemnified party as a
result of such Losses (or actions or proceedings in respect thereof) in such
proportion as is appropriate to reflect the relative fault of such indemnifying
party on the one hand and such indemnified party on the other in connection with
the statements or omissions which resulted in such Losses (or actions or
proceedings in respect thereof). The relative fault will be determined by
reference to, among other things, whether the untrue or alleged untrue statement
of a material fact or the omission or alleged omission to state a material fact
relates to information supplied by such indemnifying party or such indemnified
party and the parties' relative intent, knowledge, access to information and
opportunity to correct or prevent such statement or omission. The parties agree
that it would not be just and equitable if contribution pursuant to this Section
5.4 were determined by pro rata allocation or by any other method of allocation
that does not take account of the equitable considerations referred to in the
preceding sentence. The amount paid or payable by a contributing party as a
result of the losses, claims, damages or liabilities (or actions or proceedings
in respect thereof) referred to in this Section 5.4 will include any legal or
other expenses reasonably incurred by such indemnified party in connection with
investigating or defending any such action or claim. No Person guilty of
fraudulent misrepresentation (within the meaning of Section 11(f) of the
Securities Act) will be entitled to contribution from any Person who was not
guilty of such fraudulent misrepresentation.
6. MISCELLANEOUS.
6.1. Reports under the Exchange Act. With a view to making available to the
Holders the benefits of Rule 144 and any other rule or regulation of the
Commission that may at any time permit such Holder to sell securities of the
Company to the public without registration and with a view to making it possible
for Holders to register the Registrable Shares pursuant to a Registration
Statement on Form S-3, the Company agrees from the date hereof to use its best
efforts to:
11
(a) make and keep public information available, as those terms are
understood and defined in Rule 144 under the Securities Act;
(b) file with the Commission in a timely manner all reports and other
documents required of the Company under the Securities Act and the Exchange
Act, so long as the Company remains subject to such requirements and the
filing of such reports and other documents are required for the applicable
provisions of Rule 144 to apply;
(c) file with the Commission in a timely manner all reports and other
documents required of the Company under the Securities Act and the Exchange
Act and take such other actions as will permit Holders to use Form S-3 for
the resale of their Registrable Shares; and
(d) furnish to any Holder forthwith upon request (i) a written
statement by the Company as to its compliance with the reporting
requirements of Rule 144, the Securities Act and the Exchange Act, or as to
its qualification as a registrant whose securities may be resold pursuant
to Form S-3 (at any time after it so qualifies), (ii) a copy of the most
recent annual or quarterly report of the Company and such other reports and
documents so filed by the Company and (iii) such other information as may
be reasonably requested in availing any Holder of any rule or regulation of
the Commission that permits the selling of any such securities without
registration or pursuant to such form.
6.2. Transfer of Rights. The rights set forth herein are non-transferable
except to Helmerich & Payne, Inc. or any of its wholly-owned subsidiaries, and
except as set forth in Article 6 hereof, this Agreement is made solely for the
benefit of H & P and such permitted transferees.
6.3. Governing Law; Waiver of Jury Trial. This Agreement, the rights of the
parties and all claims, actions, causes of action, suits, litigation,
controversies, hearings, charges, complaints or proceedings arising in whole or
in part under or in connection herewith, will be governed by and construed in
accordance with the domestic substantive laws of the State of Texas, without
giving effect to any choice or conflict of law provision or rule that would
cause the application of the laws of any other jurisdiction. EXCLUSIVE
JURISDICTION SHALL LIE IN HOUSTON, HARRIS COUNTY, TEXAS. The parties hereto
hereby waive any right to a jury trial in connection with any litigation
pursuant to this Agreement.
6.4. Entire Agreement; Amendment and Waiver. This Agreement, together with
any documents, instruments and certificates explicitly referred to herein,
constitutes the entire agreement among the parties hereto with respect to the
subject matter hereof and supersedes any and all prior discussions,
negotiations, proposals, undertakings, understandings and agreements, whether
written or oral, with respect thereto. Any term of this Agreement may be amended
or terminated and the observance of any term of this Agreement may be waived
(either generally or in a particular instance and either retroactively or
prospectively) with the written consent of the Company and a Majority in
Interest of the Registrable Shares. Any such amendment, termination or waiver
will be binding on all Holders.
12
6.5. Notices. All notices, requests, demands, claims and other
communications required or permitted to be delivered, given or otherwise
provided under this Agreement must be in writing and must be delivered, given or
otherwise provided:
(a) by hand (in which case, it will be effective upon delivery);
(b) by facsimile (in which case, it will be effective upon receipt of
confirmation of good transmission); or
(c) by overnight delivery by a nationally recognized courier service
(in which case, it will be effective on the Business Day after being
deposited with such courier service);
in each case, to the address (or facsimile number) listed below:
If to the Company, to it at:
Atwood Oceanics, Inc.
15835 Park Ten Place Drive, Suite 200
Houston, TX 77084
Facsimile No.: (281) 492-0345
Attention: James M. Holland
with a copy to:
Strasburger & Price, LLP
1401 McKinney, Suite 2200
Houston, Texas 77010-4035
Facsimile No.: (713) 951-5660
Attention: W. Garney Griggs
If to H & P, to it at:
Helmerich & Payne International Drilling, Co.
1437 South Boulder Avenue
Tulsa, Oklahoma 74119
Telephone No.: (918) 742-5531
Facsimile No.: (918) 588-5544
Attention: Hans Helmerich
13
with a copy to:
Helmerich & Payne International Drilling, Co.
1437 South Boulder Avenue
Tulsa, Oklahoma 74119
Telephone No.: (918) 742-5531
Facsimile No.: (918) 743-2671
Attention: Steven R. Mackey
Each of the parties to this Agreement may specify a different address or
facsimile number by giving notice in accordance with this Section 6.5 to each of
the other parties hereto.
6.6. Binding Effect; Assignment. This Agreement will be binding upon and
inure to the benefit of the personal representatives, successors and assigns of
the respective parties hereto.
6.7. Amendments and Waivers. The failure of any party to enforce any of the
provisions of this Agreement shall in no way be construed as a waiver of such
provisions and shall not affect the right of such party thereafter to enforce
each and every provision of this Agreement in accordance with its terms. No
modification, amendment, or waiver of any provision of this Agreement shall be
effective against the Company or H & P except by written agreement signed by the
Company and H & P.
6.8. Severability. If any provision of this Agreement is found by any court
of competent jurisdiction to be invalid or unenforceable, the parties hereby
waive such provision to the extent that it is found to be invalid or
unenforceable. Such provision will, to the maximum extent allowable by law, be
modified by such court so that it becomes enforceable, and, as modified, will be
enforced as any other provision hereof, all the other provisions hereof
continuing in full force and effect.
6.9. Headings. The headings contained in this Agreement are for convenience
purposes only and will not in any way affect the meaning or interpretation
hereof.
6.10. Counterparts. This Agreement may be executed in any number of
counterparts, each of which will be deemed an original, but all of which
together will constitute but one and the same instrument.
[Signature Pages Follow]
14
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date
first above written.
ATWOOD OCEANICS, INC.
By: /S/ John R. Irwin
------------------------------------
Name: John R. Irwin
------------------------------------
Title: President & Chief Executive Officer
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HELMERICH & PAYNE INTERNATIONAL
DRILLING CO.
By: /S/ Hans Helmerich
------------------------------------
Name: Hans Helmerich
------------------------------------
Title: Chief Executive Officer
------------------------------------
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