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Exhibit 10.2
INVESTOR RIGHTS AGREEMENT
This
Investor Rights Agreement dated as of December 18 2006 (this “Agreement”)
is entered into by and among Allis-Chalmers Energy Inc., a Delaware corporation
(the “Company”), and Oil & Gas Rental Services, Inc., a
Louisiana corporation (the “Investor”).
WHEREAS,
the Company and the Investor have entered into an Asset Purchase Agreement
dated as of October 25, 2006 (the “Asset Purchase Agreement”)
pursuant to which the Investor shall receive a number of shares of the common
stock, par value $0.01 per share, of the Company (the “Common Stock”),
as set forth therein;
WHEREAS,
in order to induce the Investor to enter into the Asset Purchase Agreement, the
Company has agreed to grant certain registration rights to the Investor with
respect to such shares and certain Board designation rights, in each case,
subject to the terms and conditions set forth herein;
NOW,
THEREFORE, in consideration of the foregoing and other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged,
the parties hereto hereby agree as follows:
Section 1.
Definitions. As used herein, the following terms have the indicated
meanings, unless the context otherwise requires:
“Agreement”
has the meaning given to such term in the preamble hereto.
“Asset
Purchase Agreement” has the meaning given to such term in the
recitals hereto.
“Beneficially
Own,” “Beneficially Owned,” “Beneficial
Ownership” and “Beneficial Owner” with respect to
any securities means a Holder’s having such ownership, control or power
to direct the voting with respect to, or which otherwise enables a Holder to
legally act with respect to, such securities as contemplated hereby, including
without limitation pursuant to any agreement, arrangement or understanding,
regardless of whether in writing. Securities “Beneficially Owned”
shall include securities Beneficially Owned by all other persons with whom a
Holder would constitute a “group” as within the meaning of Section
13(d) of the Exchange Act.
“Blackout
Period” means, with respect to a Registration Statement, a period in
each case commencing on the day immediately after the Company notifies the
Holders that they are required, pursuant to Section 4(c)(vi), to suspend
offers and sales of Registrable Securities during which the Company, in the
good faith judgment of the Board, determines (because of the existence of, or
in anticipation of, any acquisition, financing activity, or other transaction
involving the Company, or the unavailability for reasons beyond the
Company’s control of any required financial statements, disclosure of
information which is in its best interest not to publicly disclose, or any
other event or condition of similar significance to the Company) that the
registration and distribution of (and/or the registration of the offer and sale
of) the Registrable Securities covered or to be covered by such Registration
Statement would be seriously detrimental to the Company and its stockholders and
ending on the earlier of (a) the date upon
which the material non-public
information commencing the Blackout Period is disclosed to the public or ceases
to be material and (b) such time as the Company notifies the selling
Holders that the Company will no longer delay such filing of such Registration
Statement, recommence taking steps to make such Registration Statement
effective, or allow sales pursuant to such Registration Statement to resume; provided
that no Blackout Period may last for more than 60 consecutive days; provided,
further, that during any period of 365 consecutive days, Blackout Periods
may not, in the aggregate, last for more than the greater of (a) zero days
and (b) the result of 90 days minus the number of days that
Holders are required pursuant to Section 4(d) to discontinue and suspend
disposition of Registrable Securities because of the happening of any event
described in Section 4(c)(vi).
“Board”
means the board of directors of the Company.
“Business
Day” means any day of the year, other than a Saturday, Sunday, or
other day on which the SEC is required or authorized to close.
“Closing
Date” has the meaning given to such term in the Asset Purchase
Agreement.
“Common
Stock” has the meaning given to such term in the recitals hereto.
“Company”
has the meaning given to such term in the preamble hereto.
“Designation
Rights Termination Date” has the meaning given to such term in
Section 2(b) hereto.
“Effectiveness
Period” has the meaning given to such term in Section 4(c)(i).
“Equity
Securities Offering” means any underwritten registered offering of
Relevant Securities, and any offering or placement of any Relevant Securities
pursuant to Rule 144A under the Securities Act.
“Exchange
Act” means the Securities Exchange Act of 1934, as amended, and the
rules and regulations of the SEC promulgated thereunder.
“Family
Member” means (a) with respect to any individual, such
individual’s spouse, any descendants (whether natural or adopted), any
trust all of the beneficial interests of which are owned by any of such
individuals or by any of such individuals together with any organization
described in Section 501(c)(3) of the Internal Revenue Code of 1986, as
amended, the estate of any such individual, and any corporation, association,
partnership, limited liability company or other entity all of the equity
interests of which are owned by those above described individuals, trusts or
organizations and (b) with respect to any trust, the owners of the
beneficial interests of such trust.
“Form S-1”
means such form under the Securities Act as in effect on the date of this
Agreement or any successor registration form thereto under the Securities Act
subsequently adopted by the SEC.
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“Form S-3”
means such form under the Securities Act as in effect on the date of this
Agreement or any successor registration form thereto under the Securities Act
subsequently adopted by the SEC.
“Form S-4”
means such form under the Securities Act as in effect on the date of this
Agreement or any successor registration form thereto under the Securities Act
subsequently adopted by the SEC.
“Form S-8”
means such form under the Securities Act as in effect on the date of this
Agreement or any successor registration form thereto under the Securities Act
subsequently adopted by the SEC.
“Holder”
means the Investor or any of such Investor’s successors and Permitted
Assignees who acquire rights in accordance with this Agreement with respect to
the Registrable Securities directly or indirectly from the Investor or another
Holder (including from any Permitted Assignee) and “Holders” means
all of the foregoing individuals or entities.
“Inspector”
means any attorney, accountant or other agent retained by a Holder for the
purposes provided in Section 4(c)(x).
“Investor”
has the meaning given to such term in the preamble hereto.
“Investor
Director” means any member of the Board that was nominated for
election to the Board by the Holders pursuant to and in accordance with
Section 2(a).
“Market
Standoff Period” means, with respect to each Equity Securities
Offering, the period beginning on the date of first sale of securities pursuant
to such Equity Securities Offering and ending on the date that shall be
requested by the Company or the underwriters or initial purchasers retained by
the Company to facilitate such Equity Securities Offering; provided, however,
that each such period shall not be more than 90 days; provided further that
(i) such period shall be no longer than the shortest period imposed by the
Company or the underwriters upon any other person or entity and (ii) if
any other person or entity receives a waiver with respect to any such matters,
the Holders shall be given a waiver with respect to their Shares as well.
“NASD”
means the National Association of Securities Dealers.
“Permitted
Assignee” means (a) with respect to a partnership or limited
partnership, its partners or former partners in accordance with their
partnership interests, (b) with respect to a corporation, its stockholders
or former stockholders in accordance with their interest in the corporation,
(c) with respect to a limited liability company, its members or former
members in accordance with their interest in the limited liability company,
(d) with respect to an individual, any Family Member or (e) an entity
that is controlled by, controls, or is under common control with a transferor.
“Piggyback
Registration” has the meaning given to such term in
Section 4(b)(i).
“Piggyback
Registration Statement” has the meaning given to such term in
Section 4(b)(i).
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“register,”
“registered,” and “registration” refer to
a registration effected by preparing and filing a registration statement in
compliance with the Securities Act, and the declaration or ordering of the
effectiveness of such registration statement.
“Registrable
Securities” means the Shares, excluding any such Shares (a) that
have been publicly sold or may be sold immediately without registration or the
requirement to make filings with the SEC under the Securities Act either
pursuant to Rule 144 of the Securities Act or otherwise, (b) sold by
a person in a transaction pursuant to a registration statement filed under the
Securities Act or (c) that are at the time subject to an effective
registration statement under the Securities Act (other than the Registration
Statements contemplated hereby).
“Registration
Expenses” has the meaning given to such term in Section 4(e).
“Registration
Statement” means either of the Piggyback Registration Statements or
the Shelf Registration Statement; and “Registration Statements”
means, collectively, the Piggyback Registration Statements and the Shelf
Registration Statement.
“Relevant
Security” means the Shares, any other equity security of the Company
or any of its subsidiaries and any security convertible into, or exercisable or
exchangeable for, any Shares or other such equity security.
“SEC”
means the Securities and Exchange Commission or any other federal agency at the
time administering the Securities Act.
“SEC
Effective Date” means, with respect to a Registration Statement, the
date as of which such Registration Statement is originally declared effective
by the SEC.
“Securities
Act” means the Securities Act of 1933, as amended, or any similar
federal statute promulgated in replacement thereof, and the rules and
regulations of the SEC thereunder, all as the same shall be in effect from time
to time.
“Selling
Expenses” has the meaning given to such term in Section 4(e).
“Shares”
means the shares of Common Stock issued to the Investor pursuant to the Asset
Purchase Agreement and (a) any and all shares of capital stock or other
equity securities of the Company which are added to or exchanged or substituted
for such shares of Common Stock by reason of the declaration of any stock
dividend or stock split, the issuance of any distribution or the
reclassification, readjustment, recapitalization or other such modification of
the capital structure of the Company; and (b) any and all shares of
capital stock or other equity securities of any other corporation (now or
hereafter organized under the laws of any state or other governmental authority)
with which the Company is merged, which results from any consolidation or
reorganization to which the Company is a party, or to which is sold all or
substantially all of the shares or assets of the Company, for which such shares
of Common Stock are exchanged or substituted in connection with such merger,
consolidation, reorganization or sale, if immediately after such merger,
consolidation, reorganization or sale, the Company or the stockholders of the
Company own equity securities having in the aggregate more than 50% of the
total voting power of such other corporation.
“Shelf
Registration Statement” has the meaning given to such term in
Section 4(a).
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“Transfer”
has the meaning given to such term in Section 3(a).
Section 2.
Board Designation Rights.
(a) Designation.
Until the Designation Rights Termination Date, the Holders of a majority of the
Shares shall have the right to designate one nominee for election to the Board.
(b) Termination
of Designation Rights. The Holders of a majority of the Shares shall not be
entitled to designate any nominees for election to the Board pursuant to this
Agreement from and after the date (the “Designation Rights Termination
Date”) that is the first date on which the Shares Beneficially Owned
by the Holders collectively represent less than thirty-one and one-quarter
percent (31.25%) of the Shares initially acquired by the Investor pursuant to
the Asset Purchase Agreement.
(c) Company
Support. At all times prior to the Designation Rights Termination Date, the
Company shall support the nominations of the persons designated by the Holders
of a majority of the Shares pursuant to Section 2(a), and the Company
shall use its best efforts to cause the Board (and the Company’s nominating
committee, if any) to recommend the inclusion of such persons in the slate of
nominees recommended to stockholders for election as directors at each annual
meeting of stockholders of the Company.
(d) Vacancies.
If at any time prior to the Designation Rights Termination Date, a vacancy is
created on the Board by reason of the incapacity, death, removal or resignation
of any Investor Director, then the Company shall use its best efforts to cause
the Board to appoint an individual designated by the Holders of a majority of
the Shares to fill such vacancy until the next meeting of the Company’s
stockholders at which directors are elected.
Section 3.
Market Standoff. Notwithstanding anything to the contrary set forth in
this Agreement, with respect to each Equity Securities Offering conducted after
the Closing Date, the following provisions of this Section 3 shall apply,
if and only if (x) the underwriters or initial purchasers retained by the
Company to facilitate such offering request, in connection with such offering,
that the officers or directors or significant stockholders of the Company
refrain from selling any Relevant Security during any period, and
(y) either (1) any nominee designated by the Holders pursuant to
Section 2(a) is a member of the Board, or (2) the Holders Beneficially Own
shares of Common Stock representing at least 10% of the fully diluted equity
interests in the Company (calculated giving effect to the exercise of all
outstanding options, warrants and other rights to purchase to acquire any
Common Stock of the Company):
(a) Without
the prior written consent of the Company, during the Market Standoff Period
applicable to such Equity Securities Offering, each Holder will not (i),
directly or indirectly, offer, sell, agree to offer or sell, solicit offers to
purchase, grant any call option or purchase any put option with respect to,
pledge, borrow or otherwise dispose of any Relevant Security, or
(ii) establish or increase any “put equivalent position” or
liquidate or decrease any “call equivalent position” (in each case
within the meaning of Section 16 of the Exchange Act) with respect to any
Relevant Security, or otherwise enter into any swap, derivative or other
transaction or arrangement that transfers to another, in whole or in part, any
economic consequence of ownership of a Relevant Security (each of the
transactions described in the immediately preceding clauses (i) and (ii),
being referred to as a “Transfer”), regardless of
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whether such transaction is
to be settled by delivery of Relevant Securities, other securities, cash or
other consideration; provided, however, that a Transfer to a
Permitted Assignee will not be subject to this Section 3 as long as
(x) such Transfer is effected in accordance with applicable securities
laws; (y) such transferee agrees in writing to become subject to the terms
of this Agreement as a Holder; and (z) the Company is given written notice
by such Holder of such Transfer, stating the name and address of the transferee
and identifying the Shares being Transferred.
(b) Furthermore,
each Holder hereby authorizes the Company during the Market Standoff Period to
cause any transfer agent for the Relevant Securities to decline to transfer,
and to note stop transfer restrictions on the stock register and other records
relating to, any Relevant Securities for which such Holder is the record holder
and, in the case of Relevant Securities for which such Holder is the Beneficial
Owner but not the record holder, agrees during the Market Standoff Period to
cause the record holder thereof to cause the relevant transfer agent to decline
to transfer, and to note stop transfer restrictions on the stock register and
other records relating to, such Relevant Securities.
(c) Subject
to the provisions of Section 4(b), without the prior written consent of
the Company, during the Market Standoff Period such Holder (x) will not
participate in the filing with the SEC of any registration statement, or
circulate or participate in the circulation of any preliminary or final
prospectus or other disclosure document with respect to any proposed offering
or sale of a Relevant Security and (y) will not exercise any rights the
undersigned may have to require registration with the SEC of any proposed
offering or sale of a Relevant Security (including without limitation pursuant
to this Agreement).
Section 4.
Registration Rights.
(a) Shelf
Registration Statement. The Company shall (i) file with the SEC a
shelf registration statement on Form S-1 (or, if the Company is eligible to use
such form, Form S-3) relating to the registration of the offer and resale by
the Holders of all of the Registrable Securities (the “Shelf
Registration Statement”) and (ii) use its commercially
reasonable efforts to cause the Shelf Registration Statement to be declared
effective by the SEC no later than the date that is one (1) year after the
Closing Date; provided, however, that the Company shall not be
obligated to effect any such registration pursuant to this Section 4(a),
or keep such registration or the Shelf Registration Statement effective
pursuant to Section 4(c)(i), during any Blackout Period.
(b) Piggyback
Registration Rights.
(i)
Piggyback Registration. If after the date that is one (1) year
after the Closing Date, the Company shall determine to register the offer and
sale for cash of any of its Common Stock for its own account, other than
(i) a registration relating solely to employee benefit plans or securities
issued or issuable to employees, consultants (to the extent the securities
owned or to be owned by such consultants could be registered on Form S-8) or
any of their Family Members (including a registration on Form S-8), (ii) a
registration on Form S-4 in connection with a merger, acquisition, divestiture,
reorganization, exchange offer or similar event, or (iii) a registration
in which the only Common Stock being registered is Common Stock issuable upon
conversion of debt
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securities that are also
being registered, then (subject to Section 4(b)(iii)) the Company shall
promptly give to the Holders written notice thereof, and in no event shall such
notice be given less than 20 calendar days prior to the filing of a
registration statement (each a “Piggyback Registration Statement”
and collectively the “Piggyback Registration Statements”)
with respect to such registration (each a “Piggyback Registration”),
and shall, subject to Section 4(b)(ii) and Section 4(b)(iii), include
in such Piggyback Registration, all of the Registrable Securities specified in
a written request or requests, made within 10 calendar days after receipt of
such written notice from the Company, by any Holder or Holders. However, the
Company may, without the consent of the Holders, withdraw such Piggyback
Registration Statement prior to its becoming effective if the Company has
elected to abandon the proposal to register the securities proposed to be
registered thereby.
(ii)
Underwriting. If a Piggyback Registration is for a registered public
offering involving an underwriting, the Company shall so advise the Holders in
writing or as a part of the written notice given pursuant to
Section 4(b)(i). In such event the right of any Holder to registration
pursuant to Section 4(b)(i) shall be conditioned upon such Holder’s
participation in such underwriting and the inclusion of such Holder’s
Registrable Securities in the underwriting to the extent provided herein. All
Holders proposing to distribute their securities through such underwriting
shall (together with the Company) enter into an underwriting agreement in
customary form with the underwriter or underwriters selected for such
underwriting by the Company. Notwithstanding any other provision of this
Section 4(b)(ii), if the underwriter or the Company determines that
marketing factors require a limitation of the number of shares to be
underwritten, the underwriter may exclude some or all Registrable Securities
from such registration and underwriting. The Company shall so advise all
Holders (except those Holders who failed to timely elect to distribute their
Registrable Securities through such underwriting or have indicated to the
Company their decision not to do so), and the number of shares that may be
included in the registration and underwriting shall be allocated:
(A)
first to the Company; and
(B)
then, subject to written obligations and commitments existing as of October 25,
2006, to all selling stockholders, including the Holders, who have requested to
sell in the registration on a pro rata basis according to the number of shares
requested to be included.
No Registrable Securities
excluded from the underwriting by reason of the underwriter’s marketing
limitation shall be included in such registration. If any Holder disapproves of
the terms of any such underwriting, such Holder may elect to withdraw therefrom
by written notice to the Company and the underwriter. The Registrable
Securities and/or other securities so withdrawn from such underwriting shall
also be withdrawn from such registration; provided, however,
that, if by the withdrawal of such Registrable Securities a greater number of
Registrable Securities held by other Holders may be included in such
registration (up to the maximum of any limitation imposed by the underwriters),
then the Company shall offer to all Holders who have included Registrable
Securities in the registration the right to include additional Registrable
Securities pursuant to the terms and
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limitations set forth herein
in the same proportion used above in determining the underwriter limitation.
(iii)
Notwithstanding anything to the contrary set forth in this Agreement, the
Company shall not be obligated to effect, or take any action to effect, any
registration pursuant to Section 4(b) after the Company has initiated two
(2) such registrations (counting for this purpose only registrations which
have been declared or ordered effective and pursuant to which securities have
been sold).
(c) Registration
Procedures. In the case of each registration, qualification, or compliance
effected by the Company pursuant to Section 4(a) and Section 4(b), the
Company will keep each Holder including securities therein reasonably advised
in writing (which may include e-mail) as to the initiation of each
registration, qualification, and compliance and as to the completion thereof.
In addition, the Company hereby agrees as follows with respect to each
Registration Statement:
(i)
The Company will use its commercially reasonable efforts to cause such
Registration Statement to become and remain effective at least for a period
ending with the first to occur of (A) the sale by the Holders of all
Registrable Securities covered by such Registration Statement, (B) the
availability under Rule 144 for the Holders to immediately, freely resell
without restriction under United States federal securities laws all Registrable
Securities covered by such Registration Statement, or (C) the date that is
two years after the SEC Effective Date of such Registration Statement (provided,
however, that if the Company files a Registration Statement on Form S-1
and subsequently becomes eligible to use Form S-3, it may file a post-effective
amendment to such Form S-1 on Form S-3 prior to the end of such period and use
its commercially reasonable efforts to cause such Registration Statement as
amended to become effective until the end of such period) (in any such case,
the “Effectiveness Period”). At any time after the end of
the Effectiveness Period with respect to the Shelf Registration Statement, if
(a) the Holders Beneficially Own Registrable Securities representing more
than 10% of the fully diluted equity interests in the Company (calculated
giving effect to the exercise of all outstanding options, warrants and other
rights to purchase to acquire any Common Stock of the Company) or (b) any
nominee designated by the Holders pursuant to Section 2(a) is a member of the
Board, then (x) as promptly as reasonably practicable after the written
request of Holders of a majority of the Registrable Securities, the Company
shall file with the SEC another shelf registration statement on Form S-1 (or,
if the Company is eligible to use such form, Form S-3) relating to the
registration of the offer and resale by the Holders of all of the Registrable
Securities, (y) the provisions of this Agreement (including without
limitation the provisions of Section 4(a) and Section 4(c)) shall apply to
such registration statement and (z) such registration statement shall be
deemed to be the Shelf Registration Statement (as defined in Section 4(a))
for purposes of this Agreement.
(ii)
If any Registration Statement becomes subject to review by the SEC, the Company
will promptly respond to all comments and diligently pursue resolution of any
comments to the satisfaction of the SEC.
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(iii) The Company will prepare and file with the SEC such amendments and supplements to each Registration Statement






