Exhibit 10.3
REGISTRATION RIGHTS
AGREEMENT
THIS REGISTRATION RIGHTS AGREEMENT (this
“ Agreement ”)
is entered into as of the 12th day of June, 2008, by and among
Vantage Drilling Company, a Cayman Islands exempted company (the
“ Company ”)
and F3 Capital (“ F3
Capital ”).
WHEREAS, the Company, Offshore Group Investment
Limited, Vantage Energy Services, Inc. and F3 Capital have
previously entered into a certain Share Purchase Agreement, dated
as of August 30, 2007, as amended (the “ Purchase
Agreement ”), pursuant to which the Company will receive,
in exchange for cash and units, all of the shares of common stock
of Offshore Group Investments Limited, an entity incorporated under
the laws of the Cayman Islands and a wholly owned subsidiary of F3
Capital; and
WHEREAS, the Company and F3 Capital desire to
enter into this Agreement to provide F3 Capital with certain rights
related to the registration of (i) shares of Common Stock;
(ii) Warrants; and (iii) shares of Common Stock
underlying Warrants that F3 Capital will acquire as a result of the
Purchase Agreement and the transactions contemplated
thereby.
NOW, THEREFORE, in consideration of the mutual
covenants and agreements set forth herein, and for other good and
valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, the parties hereto agree as
follows:
1. DEFINITIONS. The
following capitalized terms used herein have the following
meanings:
“ Agreement ” means this Agreement,
as amended, restated, supplemented, or otherwise modified from time
to time.
“ Commission ” means the Securities
and Exchange Commission, or any other federal agency then
administering the Securities Act or the Exchange Act.
“ Common
Stock ” means the common stock, par value $0.001 per
share, of the Company.
“ Company ” is defined in the
preamble to this Agreement.
“ Demand
Registration ” is defined in
Section 2.1.1.
“ Demanding Holder ” is defined in
Section 2.1.1.
“ Exchange Act ” means the
Securities Exchange Act of 1934, as amended, and the rules and
regulations of the Commission promulgated thereunder, all as the
same shall be in effect at the time.
“ Form S-3 ” is defined in
Section 2.3.
“ Holder
” or “ Holders ” means
F3 Capital or any of its affiliates to the extent any of them are
permitted to hold Registrable Securities, other than those
purchasing Registrable Securities in a market transaction.
“ Indemnified Party ” is defined in
Section 4.3.
“ Indemnifying Party ” is defined
in Section 4.3.
“ Majority in interest ” of
Registrable Securities means a majority of the shares of Common
Stock and shares of Common Stock underlying the Warrants included
in the Registrable Securities.
“ Maximum
Number of Shares ” is defined in
Section 2.1.4.
“ Notices ” is defined in
Section 6.3.
“ Piggy-Back Registration ” is
defined in Section 2.2.1.
“ Register ,” “ Registered” and “
Registration ” mean a
registration effected by preparing and filing a registration
statement or similar document in compliance with the requirements
of the Securities Act,
and the
applicable rules and regulations promulgated thereunder, and
such registration statement becoming effective.
“ Registrable Securities ” mean all
of (i) the shares of Common Stock; (ii) the Warrants; and
(iii) the shares of Common Stock issuable upon exercise of the
Warrants, held by F3 Capital as a result of the transactions
contemplated by the Purchase Agreement. Registrable Securities
shall also be deemed to include any warrants, shares of capital
stock or other securities of the Company issued as a dividend or
other distribution with respect to or in exchange for or in
replacement of such Registrable Securities. As to any particular
Registrable Securities, such securities shall cease to be
Registrable Securities when: (a) a Registration Statement with
respect to the sale of such securities shall have become effective
under the Securities Act and such securities shall have been sold,
transferred, disposed of or exchanged in accordance with such
Registration Statement; (b) such securities shall have been
otherwise transferred, new certificates for them not bearing a
legend restricting further transfer shall have been delivered by
the Company and subsequent public distribution of them shall not
require registration under the Securities Act; (c) such
securities shall have ceased to be outstanding, or (d) the
Commission makes a definitive determination to the Company that the
Registrable Securities may be sold or transferred under
Rule 144(k).
“ Registration Statement ” means a
registration statement filed by the Company with the Commission in
compliance with the Securities Act and the rules and
regulations promulgated thereunder (other than a registration
statement on Form S-4 or Form S-8, or their successors,
or any registration statement covering only securities proposed to
be issued in exchange for securities or assets of another
entity).
“ Securities Act ” means the
Securities Act of 1933, as amended, and the rules and
regulations of the Commission promulgated thereunder, all as the
same shall be in effect at the time.
“F3
Capital” is defined in the preamble to the
Agreement.
“ F3
Capital Indemnified Party ” is defined in
Section 4.1.
“ Underwriter ” means a securities
dealer who purchases any Registrable Securities as principal in an
underwritten offering and not as part of such dealer’s
market-making activities.
“ Warrants ” mean the Warrants to
purchase an aggregated 25,000,000 shares of Common Stock issued by
the Company to F3 Capital pursuant to the Purchase Agreement dated
of even date herewith between the Company, F3 Capital, Vantage
Energy Services, Inc. and Offshore Group Investments
Limited.
2. REGISTRATION RIGHTS.
2.1 Demand
Registration.
2.1.1 Request for Registration
.Commencing on the date hereof, F3 Capital and its affiliates who
collectively own a Majority-in-interest of the Registrable
Securities, may make a written demand for registration under the
Securities Act of all or part of their Registrable Securities (a
“ Demand Registration
”). Any demand for a Demand Registration shall specify the
number and type of Registrable Securities proposed to be sold and
the intended method(s) of distribution thereof. The Company
will notify the Holders of Registrable Securities of the demand,
and each Holder of Registrable Securities who wishes to include all
or a portion of such Holder’s Registrable Securities in the
Demand Registration (each such Holder including shares of
Registrable Securities in such registration, a “ Demanding Holder ”) shall so
notify the Company within fifteen (15) days after the date of
the notice from the Company. Upon any such request, the Demanding
Holders shall be entitled to have their Registrable Securities
included in the Demand Registration, subject to Section 2.1.4
and the provisions set forth in
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Section 3.1.1. The Company shall not be
obligated to effect more than an aggregate of two (2) Demand
Registrations under this Section 2.1.1 in respect of
Registrable Securities.
2.1.2 Effective Registration .
A registration will not count as a Demand Registration until
the Registration Statement filed with the Commission with respect
to such Demand Registration has been declared effective by the
Commission and the Company has complied with all of its obligations
under this Agreement with respect thereto; provided, however, that
if, after such Registration Statement has been declared effective,
the offering of Registrable Securities pursuant to a Demand
Registration is interfered with by any stop order or injunction of
the Commission or any other governmental agency or court, the
Registration Statement with respect to such Demand Registration
will be deemed not to have been declared effective, unless and
until, (i) such stop order or injunction is removed, rescinded
or otherwise terminated, and (ii) a Majority-in-interest of
the Demanding Holders thereafter elect to continue the offering;
provided, further, that the Company shall not be obligated to
file a second Registration Statement until a Registration
Statement that has been filed is deemed an effective Demand
Registration hereunder or is terminated.
2.1.3 Underwritten Offering .
If a Majority-in-interest of the Demanding Holders so elect
and such Holders so advise the Company as part of their written
demand for a Demand Registration, the offering of such Registrable
Securities pursuant to such Demand Registration shall be in the
form of an underwritten offering. In such event, the right of any
Holder to include its Registrable Securities in such registration
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
Demanding Holders proposing to distribute their securities through
such underwriting shall enter into an underwriting agreement in
customary form with the Underwriter or Underwriters selected for
such underwriting by a Majority-in-interest of the Holders
initiating the Demand Registration.
2.1.4 Reduction of Offering .
If the managing Underwriter or Underwriters for a Demand
Registration that is to be an underwritten offering advises the
Company and the Demanding Holders in writing that the dollar amount
or number of Registrable Securities which the Demanding Holders
desire to sell, taken together with all other shares of Common
Stock or other securities which the Company desires to sell and the
shares of Common Stock, if any, as to which registration has been
requested pursuant to written contractual piggy-back registration
rights held by other security holders of the Company who desire to
sell, exceeds the maximum dollar amount or maximum number of
securities that can be sold in such offering without adversely
affecting the proposed offering price, the timing, the distribution
method, or the probability of success of such offering (such
maximum dollar amount or maximum number of securities, as
applicable, the “ Maximum
Number of Shares ”), then the Company shall include
in such registration: (i) first, the Registrable Securities as
to which Demand Registration has been requested by the Demanding
Holders (pro rata in accordance with the number of shares that each
such Person has requested be included in such registration,
regardless of the number of shares held by each such Person (such
proportion is referred to herein as “ Pro Rata ”)) that can be sold
without exceeding the Maximum Number of Shares; (ii) second,
to the extent that the Maximum Number of Shares has not been
reached under the foregoing clause (i), the shares of Common
Stock or other securities that the Company desires to sell that can
be sold without exceeding the Maximum Number of Shares; and
(iii) third, to the extent that the Maximum Number of Shares
has not been reached under the foregoing clauses (i) and
(ii), the shares of Common Stock or other securities for the
account of other persons that the Company is obligated to register
pursuant to written contractual arrangements with such persons and
that can be sold without exceeding the Maximum Number of
Shares.
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2.1.5 Withdrawal . If a
Majority-in-interest of the Demanding Holders disapprove of the
terms of any underwriting or are not entitled to include all of
their Registrable Securities in any offering, such
Majority-in-interest of the Demanding Holders may elect to withdraw
from such offering by giving written notice to the Company and the
Underwriter or Underwriters of their request to withdraw prior to
the effectiveness of the Registration Statement filed with the
Commission with respect to such Demand Registration. If the
Majority-in-interest of the Demanding Holders withdraws from a
proposed offering relating to a Demand Registration, then such
registration shall not count as a Demand Registration provided for
in Section 2.1.
2.1.6 Expiration of Demand Rights
. The Holders shall have the right to demand a Demand
Registration during the period commencing on or after the date
hereof and expiring on a date which is five (5) years from the
date hereof.
2.2
Piggy-Back Registration.
2.2.1 Piggy-Back Rights . If
at any time on or after the date hereof the Company proposes to
file a Registration Statement under the Securities Act with
respect to an offering of equity securities, or securities or other
obligations exercisable or exchangeable for, or convertible into,
equity securities, by the Company for its own account or for
security holders of the Company for their accounts (or by the
Company and by security holders of the Company including, without
limitation, pursuant to Section 2.1), other than a
Registration Statement: (i) filed in connection with any
employee stock option or other benefit plan on Form S-8;
(ii) for an exchange offer or offering of securities solely to
the Company’s existing security holders; (iii) for an
offering of debt that is convertible into equity securities of the
Company; (iv) for a dividend reinvestment plan; or (v) in
connection with an acquisition or merger on Form S-4, then the
Company shall (x) give written notice of such proposed filing
to the Holders of Registrable Securities as soon as practicable but
in no event less than ten (10) days before the anticipated
filing date, which notice shall describe the amount and type of
securities to be included in such offering, the intended
method(s) of distribution, and the name of the proposed
managing Underwriter or Underwriters, if any, of the offering, and
(y) offer to the Holders of Registrable Securities in such
notice the opportunity to register the sale of such number of
shares of Registrable Securities as such Holders may request in
writing within five (5) days following receipt of such notice
(a “ Piggy-Back
Registration ”). The Company shall cause such
Registrable Securities to be included in such registration and
shall use its commercially reasonable efforts to cause the managing
Underwriter or Underwriters of a proposed underwritten offering to
permit the Registrable Securities requested to be included in a
Piggy-Back Registration on the same terms and conditions as any
similar securities of the Company and to permit the sale or other
disposition of such Registrable Securities in accordance with the
intended method(s) of distribution thereof. The Holders of
Registrable Securities proposing to distribute their securities
through a Piggy-Back Registration that involves an Underwriter or
Underwriters shall enter into an underwriting agreement in
customary form with the Underwriter or Underwriters selected for
such Piggy-Back Registration. The Holders shall have the right to
request no more than five (5) Piggy-Back Registrations during
the period commencing on or after the date hereof and expiring on a
date which is five (5) years from the date hereof.
2.2.2 Reduction of Offering .
If the managing Underwriter or Underwriters for a Piggy-Back
Registration that is to be an underwritten offering advises the
Company and the Holders of Registrable Securities in writing that
the dollar amount or number of shares of Common Stock which the
Company desires to sell, taken together with shares of Common
Stock, if any, as to which registration has been demanded pursuant
to written contractual arrangements with persons other than the
Holders of Registrable Securities hereunder, the Registrable
Securities as to which registration has been requested under this
Section 2.2, and
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the
shares of Common Stock, if any, as to which registration has been
requested pursuant to the written contractual piggy-back
registration rights of other stockholders of the Company, exceeds
the Maximum Number of Shares, then the Company shall include in any
such registration, if the registration is undertaken for the
Company’s account: (A) first, the shares of Common Stock
or other securities that the Company desires to sell that can be
sold without exceeding the Maximum Number of Shares;
(B) second, to the extent that the Maximum Number of Shares
has not been reached under the foregoing clause (A), the
shares of Common Stock or other securities, if any, comprised of
Registrable Securities, as to which registration has been requested
pursuant to the applicable written contractual piggy-back
registration rights of such security Holders, Pro Rata, that can be
sold without exceeding the Maximum Number of Shares; and
(C) third, to the extent that the Maximum Number of shares has
not been reached under the foregoing clauses (A) and (B),
the shares of Common Stock or other securities for the account of
other persons that the Company is obligated to register pursuant to
written contractual piggy-back registration rights with such
persons and that can be sold without exceeding the Maximum Number
of Shares.
2.2.3 Withdrawal . Any
Holder of Registrable Securities may elect to withdraw such
Holder’s request for inclusion of Registrable Securities in
any Piggy-Back Registration by giving written notice to the Company
of such request to withdraw prior to the effectiveness of the
Registration Statement. The Company (whether on its own
determination or as the result of a withdrawal by persons making a
demand pursuant to written contractual obligations) may also, at
its option, withdraw a registration statement at any time prior to
the effectiveness of the Registration Statement. Notwithstanding
any such withdrawal, the Company shall pay all expenses incurred by
the Holders of Registrable Securities in connection with such
Piggy-Back Registration as provided in Section 3.3.
2.3
Registrations on Form S-3 . The Holders of
Registrable Securities may at any time and from time to time,
request in writing that the Company register the resale of any or
all of such Registrable Securities on Form S-3 or any similar
short-form registration which may be available for use by the
Company at such time (“ Form S-3 ”). Upon receipt of
such written request, the Company will promptly give written notice
of the proposed registration to all other Holders of Registrable
Securities, and, as soon as practicable thereafter, effect the
registration of all or such portion of such Holder’s or
Holders’ Registrable Securities as are specified in such
request, together with all or such portion of the Registrable
Securities or other securities of the Company, if any, of any other
Holder or Holders joining in such request as are specified in a
written request given within fifteen (15) days after receipt
of such written notice from the Company; provided, however, that
the Company shall not be obligated to effect any such registration
pursuant to this Section 2.3 if (i) Form S-3 is not
available for such offering, or (ii) the Holders of the
Registrable Securities, together with the holders of any other
securities of the Company entitled to inclusion in such
registration, propose to sell Registrable Securities and such other
securities (if any) at any aggregate price to the public of less
than $1,000,000. Registrations effected pursuant to this
Section 2.3 shall be counted as Demand Registrations effected
pursuant to Section 2.1.
3.
REGISTRATION PROCEDURES.
3.1
Filings; Information . Whenever the Company is
required to effect the registration of any Registrable Securities
pursuant to Section 2, the Company shall use its commercially
reasonable efforts to effect the registration and sale of such
Registrable Securities in accordance with the intended
method(s) of distribution thereof as expeditiously as
practicable, and otherwise in compliance with this
Section 3.
3.1.1 Timeframe for Filing
Registration Statement .The Company shall, as expeditiously as
possible and in any event within sixty (60) days after receipt
of a request for a Demand
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Registration pursuant to Section 2.1,
prepare and file with the Commission a Registration Statement on
any form for which the Company then qualifies or which counsel for
the Company shall deem appropriate and which form shall be
available for the sale of all Registrable Securities to be
registered thereunder in accordance with the intended
method(s) of distribution thereof, and shall use its
commercially reasonable efforts to cause such Registration
Statement to become and remain effective for the period required by
Section 3.1.3; provided, however, that the Company shall have
the right to defer any Demand Registration for (i) up to
forty-five (45) days, and any Piggy-Back Registration for such
period as may be applicable to deferment of any Demand Registration
to which such Piggy-Back Registration relates, in each case if the
Company shall furnish to the Holders a certificate signed by the
Chief Executive Officer or Vice Chairman of the Company stating
that, in the good faith judgment of the Board of Directors of the
Company, it would be materially detrimental to the Company and its
stockholders for such Registration Statement to be effected at such
time, or (ii) for up to ninety (90) days if a demand has
been made within the timeframe commencing on a date which is thirty
(30) days prior to the end of the Company’s fiscal year
end and ending on a date which is fo
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