EXECUTION VERSION
REGISTRATION RIGHTS AGREEMENT
THISREGISTRATION RIGHTS AGREEMENTisentered into on June 5, 2018byand between National EnergyServices Reunited Corp., aBritish Virgin Islandscompany(the “Company”), and Hana Investments Co.WLL,formed under thelawsofBahrain (“Olayan”) (each ofOlayan and the Company to bereferenced hereinafter as a“Party”or collectively as“Parties”).
WHEREAS,theCompany,Olayan, NPS Holdings Limited (“NPS”) andOFSInvestments Limited, Arab Petroleum Investments Corporation, Castle SPC Limited, Al Nowais InvestmentsLLC,Abdulaziz Aldelaimi and Fahad Abdulla Bindekhayel entered intothat certain Stock Purchase Agreement, dated as ofNovember 12, 2017(the “SPA”), pursuant towhich Olayan agreed toacquire83,660,878shares, $1.00par value pershare, ofNPS (the “NPS Shares”);
WHEREAS, pursuantto theSPA, the Company hasagreed toOlayan and itssubsidiaries and affiliates certain registration and other rights in theUnited States with respect to theRegistrable Securities; and
WHEREAS,on thedate hereof, the Companyand Olayan entered intothat certain Shares Purchase Exchange Agreement (“SPEA”) pursuant towhich,on theNESR ClosingDate, Olayan agreedtocontribute the legaland beneficial ownership of theNPS Shares to the Company in exchangeforthe issuanceby the Company of theShares(asdefined in theSPEA)on theterms and subject to theconditions set out in theSPEA.
NOW, THEREFORE,inconsiderationof themutual covenants and agreements set forth herein, and for other good and valuableconsideration, the receiptand sufficiencyofwhich areherebyacknowledged, theparties heretoagree as follows:
ARTICLE1
DEFINITIONS
1.1Definitions. Thefollowingcapitalized terms usedherein have the followingmeanings.Anydefined termsused in thisRegistration Rights Agreement and notdefined herein shallhave thesamemeaningas in theSPA:
“Approved Context”isdefinedinSection 2.8.
“Commission” meanstheSecurities andExchange Commission, or any otherFederal agencythen administering theSecurities Act or theExchange Act.
“Company”isdefinedinthepreambleof thisRegistration Rights Agreement.
“Demand Registration”isdefinedinSection 2.1.1.
“Demanding Holder”isdefinedinSection 2.1.1.
“Exchange Act”means theSecuritiesExchangeAct of 1934,as amended,and therules and regulations of the Commissionpromulgated thereunder, all as the sameshallbe ineffect at thetime.
“Filing Date”isdefinedinSection 2.4.1.
“Form S-3”isdefinedinSection 2.3.
“Holder Information”isdefinedinSection 2.8.
“Indemnified Party”isdefinedinSection 3.3.
“Indemnifying Party”isdefinedinSection 3.3.
“Initiating Holder”isdefinedinSection 2.1.1.
“Investor Indemnified Party”isdefinedin Section 3.1.
“Maximum NumberofShares”isdefined in Section 2.1.4.
“NESR Closing Date”isdefinedin theSPA.
“NPS Shares”isdefinedin theRecitals of thisRegistration Rights Agreement.
“Olayan”isdefined in thepreambleof thisRegistration Rights Agreement.
“Ordinary Share”means the ordinary share of theCompany,no par value.
“Partner Distribution”isdefinedinSection 2.4.4.
“Party”or“Parties”isdefined in thepreambleof thisRegistration Rights Agreement.
“Person”or“person” meansanyindividual, corporation, partnership, limitedliabilitycompany,jointventure, association, joint-stockcompany,trust,unincorporated organization orgovernmentorotheragency or political subdivisionthereof.
“Piggy-Back Registration”isdefinedinSection 2.2.1
“ProRata” isdefined inSection 2.1.4.
“register,” “registered” and “registration”mean aregistration effectedby preparingand filing aregistration statement orsimilar document incompliance with therequirements of theSecurities Act, and such registration statement becomingeffective.
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“Registrable Securities” means (i)theSharesand(ii) any other ordinaryshares,of nopar value, of the Company heldbyOlayan or anyof itssubsidiariesoraffiliates atany time(includingthose heldas aresult of, or issuable upon, theconversion orexercise of options,warrants and othersecurities convertibleinto, orexchangeableorexercisable for (atany timeor upon theoccurrenceofany event or contingencyand without regard to anyvesting or other conditions towhich such securitiesmay besubject), or depositaryreceiptsor depositaryshares representing orevidencing, OrdinaryShares (including, without limitation, any note ordebt securityconvertibleinto orexchangeable for OrdinaryShares), whether nowowned or acquiredbyOlayan at alater time. Registrable Securities includeanywarrants, shares ofcapital or othersecurities of the Company (or anysuccessor thereto) issuedas adividend orother distribution with respectto or inexchange for or inreplacementofany of the securitiesreferenced in theprior sentence. As to anyparticular Registrable Securities, such securities shall cease to beRegistrable Securities when: (a) aRegistration Statement with respect to thesaleofsuch securities shall have become effective under theSecurities Act and such securities shall have been sold,transferred, disposed of orexchangedinaccordance with such Registration Statement; (b) such securities shall have been otherwise transferred, new certificates forthemnotbearing alegend restricting furthertransfershall have beendeliveredby the Companyand subsequent publicdistributionof themshall notrequire registrationunder theSecurities Act; (c) suchsecurities shall haveceased to be outstanding or(d)theRegistrable Securities are freelysaleableunder Rule 144without volumelimitationsor any otherlimitation orrestriction imposedby Rule 144underthe SecuritiesAct.
“Registration Rights Agreement”means thisagreement, as amended, restated, supplemented orotherwise modified from time totime.
“Registration Statement” meansaregistration statement filedbythe Companywith the Commission incompliance with theSecuritiesActfora public offering andsaleof equitysecurities, orsecurities orother obligations exercisable orexchangeablefor, orconvertible into, equitysecurities(otherthan aregistration statementonForm S-4, Form F-4 orForm S-8, ortheir successors, or anyregistration statement covering onlysecurities proposed to beissuedinexchange for securities orassetsofanother entity).
“Resale Shelf Period”isdefinedinSection 2.4.2.
“Resale Shelf Registration Statement”is defined inSection2.4.1.
“Securities Act” meanstheSecurities Act of 1933,as amended, and therules and regulations of theCommission promulgated thereunder, all as thesame shall be ineffect at thetime.
“Shelf Offering”isdefinedinSection 2.3.
“Shelf Registration Statement” meansaRegistration Statement of the Companyfiled with the Commission oneither(a)Form S-3 orForm F-3 (orany successorform or otherappropriate form under theSecurities Act) or(b)if the Company is notpermitted tofileaRegistration StatementonForm S-3orForm F-3, an evergreen Registration Statement onForm S-1 orForm F-1 (orany successor form or otherappropriate form under theSecurities Act), ineachcasefor an offering to bemade on acontinuous basis pursuant to Rule 415undertheSecurities Act (oranysimilar rule thatmay beadoptedbythe Commission)covering theRegistrable Securities, as applicable.
“SPA”isdefined in theRecitals of thisRegistration Rights Agreement.
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“SPEA”isdefined in theRecitals of thisRegistration Rights Agreement.
“Underwriter”means asecurities dealer who purchasesanyRegistrable Securities as principal inan underwritten offering and notas part ofsuch dealer’s market-making activities.
ARTICLE2
REGISTRATION RIGHTS
2.1Demand Registration.
2.1.1Request for Registration.
(a)Atanytimeand from time to time on orafter theNESR ClosingDate, Olayanmay make awritten demand (such holder, the“Initiating Holder”) for registration under theSecurities Act ofall orpart of itsRegistrable Securities (a“Demand Registration”).Anydemandfor aDemand Registration shall specify thenumber ofRegistrable Securitiesproposed toberegistered and the intendedmethod(s)ofdistribution thereof. The Companywill notifyall holders ofRegistrable Securities of thedemand, and each holder ofRegistrable Securities who wishes to include all or aportionofsuch holder’s Registrable Securities in theDemand Registration (eachsuch holder including shares ofRegistrable Securities insuch registration, including, without limitation, theInitiating Holder(s), a“Demanding Holder”) shall so notify the Companywithin fifteen (15)days afterthereceipt by the holder of thenotice from theCompany. Uponany suchrequest, theDemanding Holders shall beentitled tohave their Registrable Securities included inthe Demand Registration, subject toSection2.1.4and theprovisos set forth inSection 2.5.1(a). Olayan shall be entitled tocausethe Company toeffect up totwo (2) Demand Registrations underthisSection 2.1.1.
(b)the Companyshall file theregistration statement inrespectof aDemand Registration as soonas practicable and, in any event,within sixty (60)days after receiving arequest for aDemand Registration and shall usereasonable best effortstocause thesame to bedeclared effective by theSEC as promptlyas practicable after suchfiling;provided,however,that:
(i)the Companyshall not beobligated toeffect aDemand Registration pursuant toSection 2.1.1(a) within sixty(60) days after theeffective date of aprevious Demand Registration, other than a ShelfRegistration Statement orResale Shelf Registration Statement; and
(ii)the Companyshall not beobligated toeffect aDemand Registration pursuant toSection 2.1.1(a) unless such demandrequestisfor a number ofRegistrable Securities with amarket value that isequal toat least $25,000,000 as of thedateof such request.
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2.1.2Effective Registration.Aregistration will not countas aDemand Registration until theRegistration Statement filed with theCommission with respect tosuch Demand Registration has beendeclared effective and the Companyhas compliedwith all of itsobligations under thisRegistration Rights Agreement with respect thereto;provided,however, that if, after suchRegistration Statement has been declared effective, the offering ofRegistrable Securities pursuantto aDemand Registration isinterfered with by any stoporder orinjunctionof the Commission or anyother governmental agency orcourt,theRegistration Statement with respect tosuch Demand Registration will be deemed not tohave beendeclared effective, unless and until,(i) such stoporderorinjunction isremoved, rescindedorotherwise terminated, and (ii) amajority-in-interestof the DemandingHolders thereafter elect tocontinuetheoffering;provided furtherthatthe Companyshall not beobligated tofile asecond Registration Statement until aRegistration Statement that has been filed iscounted as aDemand Registration or isterminated.
2.1.3Underwritten Offering.IftheInitiating Holder soelects and such holder soadvises the Companyas part of itswritten demand for aDemand Registration,theoffering ofsuch Registrable Securitiespursuant to such DemandRegistration shall be in theform ofan underwritten offering. In such event, theright of anyholdertoinclude itsRegistrable Securitiesinsuch registration shall beconditionedupon suchholder’s participation insuch underwriting and theinclusion ofsuch holder’s Registrable Securities in theunderwriting to the extentprovided herein. All Demanding Holders proposing todistribute their Registrable Securities through such underwriting shallenter intoanunderwritingagreement in customaryform with theUnderwriterorUnderwriters selected for such underwriting by theInitiating Holder.
2.1.4ReductionofOffering.If the managingUnderwriterorUnderwriters for aDemand Registration that is to bean underwritten offering advises the CompanyandtheDemanding Holders inwriting thatthedollar amount ornumber ofshares ofRegistrable Securities which theDemanding Holders desire tosell, taken together withall other OrdinarySharesor other securitieswhich the Company desires tosell and the OrdinaryShares, ifany, astowhich registration has been requested pursuant towritten contractual piggy-back registration rights heldby othershareholdersof the Companywho desire tosell, exceeds themaximum dollar amount ormaximum number ofshares thatcan be sold insuch offering without adverselyaffectingthe proposedoffering price, thetiming,thedistribution method or the probabilityofsuccess ofsuch offering(suchmaximumdollar amount ormaximum numberofshares, as applicable, the“Maximum Number ofShares”), then the Company shallinclude insuch registration: (i) first, theRegistrable Securities as towhich Demand Registration has beenrequestedbytheDemanding Holders (pro rata inaccordance with the number ofshares that each such Personhas requested beincluded in suchregistration, regardless of thenumber ofshares heldbyeach such Person (such proportion isreferred toherein as “Pro Rata”))that can be soldwithoutexceeding the MaximumNumber ofShares; (ii) second, to the extentthat the MaximumNumberof Shares has not beenreached under theforegoingclause(i), the OrdinaryShares orother securities that the Company desires tosell that can be soldwithout exceeding the MaximumNumberofShares; and (iii) third, tothe extentthat theMaximum Number ofShares has notbeen reached under theforegoing clauses (i) and (ii), the OrdinaryShares orother securities for theaccount ofother persons that the Company isobligated toregister pursuant towritten contractual arrangements with such personsand that can be soldwithout exceeding the MaximumNumberofShares. Notwithstanding theforegoing,noemployeeof the Company or any subsidiarythereof will beentitled toparticipate, directlyorindirectly,inanysuch registration to the extentthat themanaging Underwriter orUnderwriters (or, in thecase ofanyoffering that is notunderwritten,a nationallyrecognized investment banking firm) determines ingood faith that the participation of suchemployee insuch registration would adverselyaffect themarketabilityor offeringpriceof thesecuritiesbeing sold insuch registration.
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2.1.5Withdrawal.IfanyDemanding Holder disapprovesof the terms ofanyunderwriting or is notentitled toinclude all ofits Registrable Securitiesin anyoffering, suchDemanding Holdermayelect towithdraw from such offering bygiving written notice to the CompanyandtheUnderwriterorUnderwritersof itsrequest towithdraw prior to theeffectiveness of theRegistration Statement filed with theCommission with respect tosuch Demand Registration or, iflater, prior to the pricing date of theapplicable offering.If theInitiating Holderwithdraws from a proposed offering relating to aDemand Registration, then such registration shall notcount as aDemand Registration provided for inSection 2.1bysuch Initiating Holder;providedthat,if theregistration iscompleted, thenthedemand request will beconsideredtohave beenmadebythe DemandingHolder that sells the greatest number ofRegistrable Securitiesin theoffering or, if suchDemanding Holderis notentitledto anydemands, to theDemanding Holderthat sells the nextgreatest number ofshares.
2.2Piggy-Back Registration.
2.2.1Piggy-Back Rights.Ifatanytime on orafter theNESR ClosingDate the Company proposes tofile aRegistration Statement under theSecurities Act with respect toan offeringof equity securities, orsecurities orother obligations exercisable orexchangeable for, orconvertibleinto, equitysecurities,by the Companyfor itsown account or forshareholdersof the Companyfor their account(orby the Company andbyshareholdersof the Companyincluding, without limitation, pursuant toSection 2.1), other than aRegistration Statement (i) filed inconnection withanyemployee stock option or otherbenefit plan, (ii) for an exchange offer orofferingofsecurities solely to theCompany’sexistingshareholders, (iii) for an offering ofdebt that isconvertible into equitysecuritiesof the Company or(iv) for adividend reinvestment plan, then the Company shall (x)give written notice of suchproposed filing to theholdersofRegistrable Securities as soonas practicablebut in noevent less than ten (10) days before theanticipated filing date,which notice shall describe theamount and type ofsecurities to beincludedinsuch offering, theintended method(s) ofdistribution, and thename of the proposedmanaging Underwriter orUnderwriters,ifany,of theoffering, and (y) offer to theholdersofRegistrable Securities insuch notice the opportunity toregisterthe sale of suchnumber ofshares ofRegistrable Securities as such holdersmayrequest inwriting within five (5) days followingreceiptof suchnotice (a “Piggy-Back Registration”). The Companyshall cause such Registrable Securitiesto beincluded insuch registration and shall use itsbest efforts tocausethemanaging Underwriter orUnderwritersof a proposedunderwritten offering to permit theRegistrable Securities requested to beincludedin aPiggy-Back Registration on thesame terms and conditions asanysimilar securitiesof the Companyand to permit thesaleor other disposition ofsuch Registrable Securities inaccordance with the intendedmethod(s)ofdistribution thereof. All holders ofRegistrable Securities proposing todistribute their securities through aPiggy-Back Registration that involves an Underwriter orUnderwriters shall enter intoan underwriting agreement incustomary formwith theUnderwriter orUnderwriters selected forsuch Piggy-Back Registration.
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2.2.2ReductionofOffering. If themanaging Underwriter orUnderwritersfor aPiggy- Back Registration that is to bean underwritten offeringadvises the Companyandtheholders ofRegistrable Securitiesinwriting that the dollar amount ornumberof OrdinaryShares which the Companydesirestosell, taken together with theRegistrable Securities as towhich registration has been requested under thisSection2.2 and the OrdinaryShares, ifany, as towhich registration has been requested pursuant to thewritten contractual piggy-back registration rights ofother shareholders of theCompany,exceeds theMaximum Number ofShares, then the Companyshall includein any suchregistration:
(a)if theregistration isundertaken for theCompany’s account:(A)first, the OrdinaryShares or othersecurities that the Companydesirestosell that can be soldwithout exceedingthe MaximumNumber ofShares; (B) second, to the extentthat the MaximumNumberofShares has notbeen reached underthe foregoing clause(A), the OrdinarySharesor othersecurities, ifany, comprisedofRegistrable Securities, as towhich registration has been requested pursuant to theapplicable written contractual piggy-back registration rights ofsuch security holders,Pro Rata, that can be soldwithout exceeding the MaximumNumberofShares; and (C) third, to the extentthat the MaximumNumber of Shares has not beenreachedunder theforegoing clauses (A)and (B), the Ordinary Shares orother securities for theaccountofother persons that the Company isobligatedtoregister pursuant towritten contractual piggy-back registration rights with such personsand that can be soldwithout exceeding the MaximumNumberofShares; and
(b)if theregistration is a“demand” registration undertaken at thedemandofpersons other than theholders ofRegistrable Securities, (A) first, theOrdinary Shares orother securities for theaccountof thedemanding persons that can be soldwithout exceeding the MaximumNumberofShares; (B) second, to the extentthat the MaximumNumberofShares has notbeen reached under the foregoingclause (A), the OrdinaryShares orother securities that the Companydesires tosell that canbe soldwithout exceeding the MaximumNumber ofShares; (C) third, to the extentthat theMaximum Number ofShares has notbeen reached under theforegoing clauses (A) and (B), collectively the OrdinarySharesorother securities comprisedofRegistrable Securities, Pro Rata, as towhich registration has been requestedpursuant to the termshereof, that can be soldwithout exceeding the MaximumNumberofShares; and (D)fourth, to the extentthat theMaximum Number ofShares has notbeen reached under theforegoing clauses (A), (B) and (C), the OrdinarySharesorother securities for theaccountof otherpersons that theCompany isobligated toregister pursuant towritten contractual arrangements with such persons, that can be soldwithout exceeding the MaximumNumberofShares.
2.2.3Withdrawal.Anyholder ofRegistrable Securitiesmayelect towithdraw such holder’s request for inclusion ofRegistrable Securities inanyPiggy-Back Registrationbygiving written notice to the Company of suchrequest towithdrawprior to theeffectiveness of theRegistration Statement or, iflater, prior to thepricingdate of theapplicable offering. The Company(whetheron itsown determination or as theresultof awithdrawalbypersons making ademand pursuant towritten contractual obligations) maywithdraw aRegistration Statement at any timeprior to theeffectivenessof suchRegistration Statement. Notwithstandinganysuch withdrawal, the Companyshallpayall expenses incurredby the holders ofRegistrable Securities inconnection with such Piggy-Back Registration as provided inSection 2.7.
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2.3Registrationson FormS-3. The holders ofRegistrable Securities may, at any time andfromtime totime, request inwriting thatthe Companyregister the resale ofanyorall ofsuch Registrable SecuritiesonForm S-3 orForm F-3 (as applicable) oranysimilar short-form registration to the extentavailable at such time, including, without limitation, an automatic shelf registration available towell-known seasoned issuers (“FormS-3”). Upon receipt ofsuch written request, the Companywill promptlygive written notice of the proposedregistrationtoall other holders ofRegistrable Securities, and, as soonas practicable thereafter, effect theregistrationofall or suchportion ofsuch holder’s or holders’Registrable Securities as arespecifiedinsuch request, together with all orsuch portion of theRegistrable Securities orother securities of theCompany, ifany, ofany other holder orholders joining insuch request as arespecified in awritten request given within fifteen (15) days after receipt ofsuch written notice from theCompany. At any timethataForm S-3 iseffective, ifOlayan delivers anotice to the Company statingthatit intends toeffect an underwritten offering or distribution ofallor part of itsRegistrable Securities includedbyit onany Form S-3 (a “Shelf Offering”), then the Companyshall amend orsupplement theFormS-3asmay be necessary inorder to enablesuch Registrable Securitiesto bedistributedpursuant to theShelf Offering. If the managingUnderwriterorUnderwriters for aShelf Offering that is to bean underwritten offering advises the Companyandtheselling holders ofRegistrable Securitiesinwriting that thedollar amount ornumberofsharesofRegistrable Securities which the selling holdersdesire to sell,taken together with all other Ordinary Sharesorother securities which the Companydesirestosell and the OrdinaryShares, ifany, as towhich registration has been requested pursuant towritten contractual piggy-back registration rights heldbyother shareholders of the Companywhodesire tosell, exceeds the MaximumNumberofShares, then the Companyshall includeshares insuch registration in the mannerprovided for inSection 2.1.4.The Company shall not beobligated toeffectanyShelfOffering orregistration pursuant tothis Section 2.3:(i) ifForm S-3 isnot available forsuch offering; or(ii) if theholders of theRegistrable Securities, together with theholders ofanyother securities of the Company entitled toinclusion in suchregistration,propose tosell Registrable Securitiesand such other securities(if any) atanyaggregate price to the public ofless than $500,000.Registrations effected pursuant to this Section 2.3shallnot becounted as Demand Registrations effected pursuant toSection2.1.
2.4Resale Shelf Registration.
2.4.1Filing. Aspromptlyas practicablefollowing theNESR ClosingDate, but inanyevent within four (4) monthsfollowing theNESR Closing Date (the “Filing Date”), the Companyshall file with the Commission aShelf Registration Statement relating to the offerand sale ofall Registrable Securities ownedbyOlayan (the “Resale Shelf Registration Statement”). Ifany ResaleShelf Registration Statement isfiled beforethe timethat isthirty (30) days after the NESR Closing Date, then Company shall cause to be registered the Registrable Securities in such Resale Shelf Registration Statement.
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2.4.2Continued Effectiveness. TheCompanyshall use itscommerciallyreasonableefforts tohave the ResaleShelf Registration Statement declared effective as soonas practicable after the filingthereof, but in no eventlater than thirty(30) days after the Filing Date(oronehundred twenty(120) days afterthe FilingDate if the Commissionnotifiesthe Company that itwill “review”theResale Shelf Registration Statement). TheCompany shall use its commerciallyreasonable efforts to maintain theeffectiveness of theResale Shelf Registration Statement or anySubsequent Shelf Registration (as defined below) untilsuch timeas all Registrable Securities have been sold pursuant to theResale Shelf Registration Statement or aSubsequent Shelf Registration (but in noevent for ashorterperiodthan theapplicable periodreferred to inSection 4(a)(3) of theSecurities Act and Rule 174thereunder) (such required period(s) ofeffectiveness, collectively, the“Resale Shelf Period”). Subject toSection 2.6, theCompany shall not bedeemed to haveused commercially reasonable efforts to keep the ResaleShelf Registration Statement effective during theResale Shelf Period if theCompanyvoluntarilytakes anyaction or omits totake any actionthat would resultin theholders ofRegistrable Securities covered thereby not being able tooffer and sell anyRegistrable Securities pursuant tosuch Resale Shelf Registration Statement during the ResaleShelf Period,unless such action or omission isrequired byapplicable law.Thefiling of theResale Registration Statement and offers and sales thereunder shall not bedeemed to be aDemand Registration pursuant to thisRegistration Rights Agreement. The holders ofRegistrable Securitiesshall beeligibletosell their Registrable Securities pursuant tosuch Resale Registration Statement from time to time on one ormore occasions, including, without limitation, through one ormore underwritten offerings.
2.4.3Subsequent Shelf Registration.IfanyShelf Registration Statement ceasesto beeffective under the SecuritiesAct for anyreason at any time during theResale Shelf Period, the Companyshalluse itsreasonable best efforts as promptlyasisreasonably practicable to causesuch Shelf Registration Statement toagain becomeeffectiveunder theSecurities Act (includingobtainingthe promptwithdrawal ofany order suspending theeffectiveness of suchShelf Registration Statement), and shall use its reasonablebest efforts as promptlyas is reasonablypracticable toamendsuchShelf Registration Statement in a manner reasonablyexpectedtoresult in thewithdrawal of any ordersuspending theeffectiveness ofsuch Shelf Registration Statement orfile an additional registration statement (a “Subsequent Shelf Registration”) for an offering to bemade on adelayed orcontinuous basis pursuant to Rule415 of theSecurities Act registering theresale from time to timebythe holdersthereofofall securities that are Registrable Securities as of the time ofsuch filing.Ifa SubsequentShelf Registration isfiled,the Companyshall use itsreasonable best efforts to (x)cause such Subsequent Shelf Registration tobecome effective under the SecuritiesAct as promptlyasis reasonablypracticable after thefiling thereofand (y) keepsuchSubsequentShelf Registration continuouslyeffectiveandusableuntil theend of theResale Shelf Period. Any such SubsequentShelf Registration shall be aregistration statement onForm S-3 orForm F-3 to the extentthat the Company is eligible to usesuch form. Otherwise, such SubsequentShelf Registration shall be onanother appropriate form and shall provide for theregistration ofsuch Registrable Securities for resale by theholders inaccordance withanyreasonable method ofdistributionelectedbyOlayan orforsaleby theCompany, as thecasemay be.
2.4.4Partner Distribution. Notwithstandinganythingcontained hereinto thecontrary, the Company herebyagrees that (i) theResale Shelf Registration Statement andanySubsequent Shelf Registration shall contain all language (including, without limitation,on theprospectus cover page, theprincipal shareholder chart and theplan ofdistribution) asmay reasonablyberequestedbyOlayan toallow for adistributionofRegistrable Securities to,and resale by, thedirect and indirect affiliates, partners, members, shareholders, directors,employees orconsultants ofOlayan (a “Partner Distribution”) and (ii) the Company shall,atthe reasonablerequestofOlayantoeffect aPartner Distribution, fileanyprospectus supplement or post-effective amendments andotherwise takeanyaction reasonably requested toinclude suchlanguage, ifsuch language was notincludedinthe initial Registration Statement, orrevise such language ifdeemed reasonably necessary byOlayantoeffect suchPartner Distribution (including the abilityfor thedistributeestoresell such Registrable Securities), including naming in aprospectus supplement orpost-effective amendment all of theaffiliates, partners, members, shareholders, directors, employees orconsultants ofOlayan who receivesecurities in thePartner Distribution sothat theymayresell the securitiesreceived.AnyOrdinaryShares distributed pursuant to aPartner Distribution shall remain “Registrable Securities” until they are sold ortransferredby therecipients thereof.
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2.4.5Block Trades. Notwithstanding anythingstated in thisRegistration Rights Agreement to thecontrary, in theevent that Olayan wishes toengage inan underwritten block trade orovernight boughtdeal(orother similar registered offering), Olayan shall not be required togive more than one(1) day’s notice of thetransactionto anyother holder or theCompany,butshall endeavor to work with theCompany, Olayan and theapplicable underwriters sufficiently inadvanceof thelaunch date ofsuch transactioninorder toprepare the requisitedocumentation and prospectus supplement necessary in order toimplement such offering. For theavoidance of doubt, theInitiatingHolderwith respect tosuch underwritten block trade orovernight bought deal (orothersimilar registered offering)shalldeterminethelaunchdate forsuch transaction.
2.5Registration Procedures.
2.5.1Filings; Information. Wheneverthe Company isrequiredtoeffect theregistration ofanyRegistrable Securitiespursuantto thisArticle2, the Companyshalluse itsbest efforts toeffect theregistration andsale ofsuch Registrable Securities inaccordance with theintended method(s) ofdistribution thereof as expeditiouslyas practicable, and inconnection with anysuch request:
(a)Filing Registration Statement. TheCompany shall use itsbest efforts to,as expeditiouslyas possibleafter receipt of arequest for aDemand Registration pursuant toSection 2.1 or arequest pursuant toSection 2.3,prepare and file with the Commission aRegistration Statement on anyform for which the Companythen qualifies or whichcounsel for theCompanyshalldeem appropriate and which form shall beavailable for thesale ofall Registrable Securitiesto beregistered thereunder in accordancewiththeintended method(s) of distributionthereof, and shall use itsbest efforts tocause such Registration Statement tobecome effective and use itsbest efforts tokeep iteffective for theperiod required by Section2.5.1(c);provided,however, that theCompany shall have theright to defer anyDemand Registration for up toseventy-five (75) days,such that anyobligations of Companypursuantto aDemand Registration shall beextendedby up toseventy-five (75) days, and anyPiggy-Back Registration for such periodas may beapplicabletodeferment of any demandregistrationtowhich such Piggy-Back Registration relates;providedfurther,however, that the Companyshallnothave theright toexercisetheright set forth in the immediately precedingprovisomore than once in anythree hundred and sixty-five (365)-day period inrespectof aDemand Registration hereunder.
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(b)Copies. TheCompanyshall, prior tofiling aRegistration Statement orprospectus, oranyamendment orsupplement thereto, furnishwithout charge to theholders ofRegistrable Securities included insuch registration, and such holders’ legal counsel, copies ofsuch Registration Statement as proposed to befiled,eachamendment and supplement tosuch Registration Statement (in each case includingall exhibitsthereto and documents incorporated byreference therein), theprospectusincluded insuch Registration Statement (including each preliminaryprospectus),andsuch other documents as the holders ofRegistrable Securities included insuch registration orlegal counsel foranysuch holders mayrequest inorder tofacilitatethe disposition of theRegistrable Securities ownedbysuchholders.
(c)Amendments andSupplements.The Company shallprepare and file with the Commissionsuch amendments, including post-effective amendments, and supplements tosuch Registration Statement and theprospectus used inconnection therewith as may be necessary tokeepsuchRegistration Statement effective and incompliance with the provisions of theSecurities Act untilall Registrable Securities and other securities covered by suchRegistration Statement have been disposed of inaccordance with theintended method(s) ofdistribution set forth insuch Registration Statement orsuch securities have been withdrawn or untilsuchtimeas the Registrable Securities ceaseto beRegistrable Securities.
(d)Notification. Afterthefiling of aRegistration Statement, the Companyshall promptly, and innoevent more than two (2)business days aftersuchfiling,notify theholdersofRegistrable Securities included insuch Registration Statement ofsuch filing, and shall further notify suchholderspromptlyand confirm such advice inwritinginall events within two (2) business days of theoccurrenceofany of thefollowing: (i)when such Registration Statement becomes effective; (ii) whenanypost-effective amendment tosuch Registration Statement becomeseffective; (iii) theissuance orthreatened issuanceby the Commission ofany stoporder (andthe Company shalltake all actions required to prevent the entry ofsuchstoporder or toremove it ifentered); and (iv)anyrequestby the Commissionforanyamendmentor supplement tosuch Registration Statementor anyprospectus relating thereto orfor additional information or of theoccurrence ofaneventrequiring thepreparation of asupplement oramendment tosuch prospectus sothat, as thereafter delivered to thepurchasersof thesecurities coveredby suchRegistration Statement, such prospectus will notcontain an untruestatement of amaterial factor omit to stateanymaterial fact required tobestated thereinor necessary tomake thestatements therein notmisleading, and promptly makeavailableto theholders ofRegistrable Securities included insuch Registration Statementanysuch supplement oramendment, and promptly deliver toholders ofRegistrable Securities and their counsel anywritten comments received from the Commissionwith respect to theRegistration Statement, Prospectus or anyamendmentor supplementthereto; except that before filing with the Commission aRegistration Statement orprospectusor anyamendment orsupplement thereto, includingdocuments incorporated byreference, the Companyshall furnish to theholders ofRegistrable Securities included insuch Registration Statement and to thelegal counselforanysuch holders, copies ofall such documentsproposed to befiledsufficiently inadvance offiling to providesuch holders and legal counsel with areasonableopportunity toreview such documentsand comment thereon,and the Companyshallnotfile anyRegistration Statementorprospectusoramendmentorsupplement thereto, including documents incorporatedbyreference, towhich such holders ortheirlegal counselshall object.
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(e)State SecuritiesLawsCompliance. TheCompanyshall use itsbest efforts to(i) register or qualify theRegistrable Securities coveredbytheRegistration Statement under such securities or“blue sky” laws ofsuch jurisdictions in theUnited States as theholders ofRegistrable Securities included insuch Registration Statement (inlightoftheir intended plan of distribution) mayrequest and (ii)take such action necessary to causesuch Registrable Securities coveredby theRegistration Statement to beregistered with orapprovedby suchother governmental authorities as may be necessary byvirtue of thebusiness and operations of the Companyand do anyand all otheractsand things that may be necessary or advisable toenabletheholders ofRegistrable Securities included insuch Registration Statement toconsummatethe disposition ofsuch Registrable Securities insuch jurisdictions;provided,however, that the Company shall not berequiredto qualify generally to dobusiness in anyjurisdiction where itwould nototherwise berequired to qualify but for thisparagraph,or subjectitselfto taxation in anysuchjurisdiction.
(f)Agreements for Disposition. TheCompany shallenter into customaryagreements (including, ifapplicable, an underwriting agreement in customaryform) andtake such other actionsas are reasonably required inorderto expedite orfacilitate the disposition ofsuch Registrable Securities, including usingcommercially reasonableeffortstocause itscounsel and auditors toprovide theUnderwriters with legal opinionsand comfort letters reasonablyrequestedby theUnderwriters. The representations, warranties and covenants of the Company in any underwritingagreement which are made to orforthebenefit of anyUnderwriters, to the extentapplicable, shall also bemadetoand for thebenefit of theholders ofRegistrable Securities includedin suchregistration statement. No holder ofRegistrable Securities included insuch registration statement shall berequiredtomake anyrepresentations orwarranties in theunderwriting agreement except,ifapplicable, with respect tosuch holder’s organization, good standing, authority, title toRegistrable Securities, lack ofconflict ofsuch sale with such holder’s material agreements and organizational documents, and with respect towritten information relating tosuch holder that such holder has furnished inwritingexpresslyfor inclusion insuch Registration Statement.
(g)Cooperation. The principal executiveofficer of theCompany,theprincipal financial officer of theCompany,theprincipal accounting officer of the Companyand all otherofficers and members of themanagementof the Companyshall cooperate fully in any offering ofRegistrable Securities hereunder, which cooperation shall include, without limitation, thepreparationof theRegistration Statement with respect tosuchofferingand all other offeringmaterials and related documents,and participation inmeetings with Underwriters, attorneys, accountants and potential investors.
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(h)Records. TheCompanyshall make available for inspectionby theholders ofRegistrable Securitiesincluded insuch Registration Statement, anyUnderwriter participating inany dispositionpursuant tosuch registration statement and anyattorney, accountant or other professionalretainedbyany holder ofRegistrable Securitiesincludedinsuch Registration Statement oranyUnderwriter, all financial and other records, pertinent corporate documentsand propertiesoftheCompany, as shallbe necessary toenable them toexercise their duediligence responsibility, and cause theCompany’s officers, directors and employees to supplyall information requested by any ofthem inconnection with such Registration Statement.
(i)Opinions and Comfort Letters. TheCompany shallfurnishtoeach holder ofRegistrable Securities included in anyRegistration Statement asigned counterpart, addressed tosuch holder, of(i)any opinion of counsel to the CompanydeliveredtoanyUnderwriter and (ii)anycomfort letter from theCompany’s independent publicaccountants delivered toanyUnderwriter. In the event no legal opinion isdeliveredto anyUnderwriter, the Company shallfurnishtoeach holder ofRegistrable Securities included insuch Registration Statement, atanytimethat such holder elects to use aprospectus, an opinion ofcounsel to theCompanyto theeffect that theRegistration Statement containing suchprospectus has beendeclared effective and that no stoporder is ineffect.
(j)Earnings Statement.The Companyshall complywith all applicable rulesand regulations of the CommissionandtheSecurities Act, and makeavailableto itsshareholders, as soonas practicable, an earnings statement covering a period oftwelve (12) months,which earnings statement shall satisfy theprovisions ofSection 11(a) of theSecurities Act and Rule 158thereunder.
(k)Listing. TheCompanyshall use itsbest efforts tocause all Registrable Securities included inanyregistrationto belisted onsuch exchanges orotherwise designated for trading in thesame manner as similar securities issuedby the Companyare then listed or designatedor, if no suchsimilar securities arethen listed ordesignated,in a manner satisfactoryto the holders of a majorityoftheRegistrable Securities included insuch registration.
(l)Road Show.Iftheregistration involvestheregistration ofRegistrable Securitiesinvolvinggross proceeds inexcess of $25,000,000, the Companyshall use itsreasonable efforts tomake available senior executives of the Company toparticipatein customary“road show”presentations that may be reasonably requested by theUnderwriterin anyunderwritten offering.
(m)RemovalofRestrictive Legends. The Companyshall cooperate with theselling holders ofRegistrable Securities and themanaging UnderwriterorUnderwriters, ifany, tofacilitate the timelypreparationand delivery ofcertificates representing Registrable Securities to be soldand notbearinganyrestrictive legends.
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2.6Obligation to Suspend Distribution. Upon receiptof any noticefromthe Companyof thehappening ofanyevent of the kinddescribedinSection 2.5.1(d)(iv), each holder ofRegistrable Securities included in anyregistration shall immediately discontinue disposition ofsuch Registrable Securities pursuant to theRegistration Statement covering such Registrable Securities untilsuch holderreceivesthesupplemented oramended prospectus contemplated bySection 2.5.1(d). In addition, in thecaseof aresale registration pursuant toSection2.3 orSection 2.4hereof, in theevent that aholderofRegistrable Securities is aninsider subject to theCompany’s insider tradingcompliance program, uponanysuspension by the Company pursuant to awritten insider tradingcompliance program adopted by theCompany’s Board ofDirectorsof the ability ofall “insiders” covered bysuch program totransactin theCompany’s securities because of theexistenceofmaterial non-publicinformation,then eachsuch insider shall immediately discontinue disposition ofsuch Registrable Securities pursuant to theRegistration Statement covering suchRegistrable Securities until therestrictionon the abilityof“insiders”totransact in theCompany’s securitiesisremoved. In eithercase, if sodirectedby theCompany, each such holderwill deliver to the Companyall copies, other than permanentfile copiestheninsuch holder’s possession, of the mostrecent prospectus covering such Registrable Securities at the time ofreceipt of suchnotice.
2.7Registration Expenses. TheCompany shall bearall costs and expenses incurred inconnection withanyDemandRegistration pursuant toSection2.1,anyPiggy-Back Registration pursuanttoSection 2.2,andanyregistration effected pursuant to Section 2.3 orSection2.4,and all expenses incurredinperforming or complyingwith its otherobligations under thisRegistration Rights Agreement, whetheror not theRegistration Statement becomes effective, including, without limitation: (i) all registration and filingfees; (ii) fees and expensesofcompliance with securities or“blue sky” laws (includingfees and disbursements ofcounsel inconnection with blueskyqualifications of theRegistrable Securities); (iii) printing expenses; (iv) theCompany’s internal expenses (including, withoutlimitation, all salaries and expenses of itsofficers and employees); (v) thefees and expensesincurred inconnection with the listing of theRegistrable Securities asrequiredby Section2.5.1(k); (vi)any otherfees and expenses associated with filings required to bemade with the Financial Industry Regulatory Authority or any other regulatoryauthority; (vii) fees and disbursements of counselfor the Companyand fees and expenses for independentcertified publicaccountants retained by the Company(including theexpensesorcosts associated with thedeliveryof any opinions orcomfort letters requested pursuant toSection 2.5.1(i); (viii) thereasonable fees and expenses of anyspecial experts retained by the Company inconnection with suchregistration; and (ix) thereasonable fees and expenses of one (1)legal counsel for Olayan inconnection withanysuch registration or offering(together withany localcounsel). The Companyshall have noobligationto payanyunderwriting fees, includingdiscountsor sellingcommissions, attributable to theRegistrable Securities being sold by theholders thereof, whichunderwriting fees shall bebornebysuch holders. The holders shall not berequiredtopay any othercosts orexpensesinconnection with anyregistrationoroffering made pursuant to thisRegistration Rights Agreement, other than theirpro rataportion ofunderwriting discounts or sellingcommissions and any fees and expenses oflegal counsel nototherwise paid by the Companypursuantto thisSection 2.7.
2.8Information. The holdersofRegistrable Securities shall provide such information as may reasonablybe requestedbytheCompany,or themanaging Underwriter, ifany, inconnection withthepreparation ofanyRegistration Statement, including amendments and supplements thereto, inorder toeffecttheregistration ofanyRegistrable Securities under theSecurities Act pursuanttoArticle2and inconnection with theCompany’s obligation to complywith federal and applicablestate securities laws;provided,however, that under nocircumstances will the Company bepermittedtofile anyRegistration Statement, amendment orsupplement incorporatinganyinformation oraffidavits suppliedby anyholder ofRegistrable Securities or using theholder’s name(collectively,the “HolderInformation”)unless(i) such HolderInformation isincorporated verbatim as suppliedby theholder (or in the case of theholder’s name, incorporated exactlyandonly in the contextconsented toby the holder(the “Approved Context”)) or(ii)theholder has consented inwritingto anymodification tosuch Holder Information (or, in the case of theholder’s name, has consented to use in a contextbroader than theApproved Context).
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ARTICLE3
INDEMNIFICATION AND CONTRIBUTION
3.1Indemnificationbythe Company. The Company agrees to indemnifyand holdharmless Olayan and each other holder ofRegistrable Securities, and each oftheir respective officers, employees, affiliates, directors, partners,members, attorneys and agents, and each person, ifany, who controlsOlayan and each otherholder ofRegistrable Securities (within themeaning of Section 15 of theSecurities Act or Section 20 of the ExchangeAct) and each oftheir respective officers, employees, affiliates, directors,partners, members, attorneys and agents (each, an “Investor Indemnified Party”), fromandagainst any expenses,losses, judgments, claims, damages orliabilities, whether joint orseveral, arising out of or based upon anyuntrue statement (or allegedlyuntrue statement) of amaterial fact contained in anyRegistration Statement under which thesaleofsuch Registrable Securities was registered under theSecurities Act, any preliminaryprospectus, final prospectus or summary prospectuscontainedin theRegistration Statement, or anyamendmentor supplement tosuch Registration Statement, anyfreewritingprospectus or anywritten ororal materials distributed to orpresentedtoinvestors at any roadshow orother meetings with investors, or arising out of or based upon any omission(or allegedomission) tostate amaterial fact required to bestated therein or necessary tomakethestatements therein notmisleading,or any violation by the Company of theSecurities Act applicable to the Companyand relating to any action orinaction required of the Company inconnection with any suchregistration; and the Company shall promptlyreimburse theInvestor Indemnified Partyfor anylegal andanyother expenses reasonablyincurredbysuch Investor Indemnified Party inconnection with investigating and defending anysuch expense, loss,judgment, claim, damage, liability or actionasthey areincurred;provided,however, that the Companywill not be liable in anysuchcase to the extentthat anysuch expense,loss,claim, damage or liabilityarisesout of or isbased upon any untruestatementor allegedlyuntrue statement or omission orallegedomissionmade insuch Registration Statement, preliminary prospectus, final prospectus or summary prospectus, or anysuch amendmentorsupplement, free writing prospectus orroadshow,inreliance uponand in conformity withinformation furnished to theCompany,inwriting,bysuchselling holder expressly for use therein.
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3.2IndemnificationbyHolders ofRegistrable Securities. Each sellingholder ofRegistrable Securities will, in theevent thatanyregistrationisbeing effected under theSecurities Act pursuantto thisRegistration Rights Agreement ofanyRegistrable Securities heldbysuch selling holder, indemnifyand holdharmless theCompany, each of itsdirectors and officers, each person, ifany, who controls the Companywithin the meaning of theSecurities Act and each Underwriter (if any), and each other selling holder and each otherperson,ifany, who controls another sellingholderorsuch Underwriter within the meaning of theSecurities Act, againstanylosses, claims, judgments, damagesorliabilities, whether joint orseveral, insofaras such losses, claims, judgments, damages orliabilities (or actions inrespect thereof) arise out of orare based uponanyuntruestatement orallegedly untrue statement of amaterial fact containedin anyRegistration Statement under which thesale ofsuch Registrable Securities was registered under theSecurities Act, any preliminary prospectus,final prospectus or summaryprospectus contained in theRegistration Statement, oranyamendment or supplement to theRegistration Statement, or anyfree writingprospectusoranywritten ororal material distributed orpresented toinvestors at any roadshow orother meetings withinvestors,orarise out of orare based upon any omission or thealleged omission tostateamaterial fact required to bestated therein or necessary to make thestatement therein notmisleading,if thestatement or omissionwas madeinreliance uponand in conformitywith information furnished in writing to the Company bysuch selling holder expresslyfor usetherein, and shallreimburse theCompany, itsdirectors and officers, and each other selling holder or controllingperson foranylegal or otherexpensesreasonablyincurred byany ofthem inconnection with investigating or defendingany such loss,claim, damage, liability oraction. Each selling holder’s indemnification obligations hereunder shallbeseveral and not jointand shall belimited to theamount ofanynet proceeds actuallyreceived bysuch sellingholder. The parties heretoagree that theonlyinformation furnished inwriting to the Companyby any sellingholder shall beinformation about the number ofshares owned bysuch holder included in theRegistration Statement or prospectus, oranyamendment orsupplement thereto, in theselling stockholdertable.
3.3ConductofIndemnification Proceedings.Promptlyafter receiptby any person ofanynotice ofanyloss,claim, damageor liability or any action inrespect of which indemnitymay besought pursuant toSection 3.1 orSection 3.2,such person (the “Indemnified Party”) shall, if aclaim inrespect thereof is to bemade against any otherpersonforindemnification hereunder, notifysuch other person(the “Indemnifying Party”) inwritingof the loss,claim, judgment, damage, liability or action;provided,however, that thefailurebytheIndemnified Party to notify theIndemnifyingPartyshall notrelieve theIndemnifyingPartyfromany liability which theIndemnifying Partymayhavetosuch Indemnified Partyhereunder,exceptand solely to the extent theIndemnifyingParty is actually prejudicedbysuch failure.If theIndemnified Party isseeking indemnification with respect to any claim oraction brought against theIndemnified Party, then theIndemnifying Partyshallbeentitled toparticipate insuch claim oraction, and, to the extentthat itwishes, jointlywith all other Indemnifying Parties, toassume control of thedefense thereof with counsel satisfactory to theIndemnified Party. After notice from theIndemnifying Party to theIndemnifiedPartyof itselection toassumecontrol of thedefenseofsuch claimor action, theIndemnifying Party shall not beliable to theIndemnifiedPartyforanylegalorother expenses subsequentlyincurredby theIndemnified Party inconnection with thedefense thereof otherthan reasonable costs ofinvestigation;provided,however, that inanyaction, theIndemnifiedParty shall have the right to employseparate counsel(butno morethan onesuch separate counsel) torepresent theIndemnified Partyand its controllingpersons who may besubject toliability arising outof any claim inrespectofwhich indemnitymay besoughtby theIndemnified Party against theIndemnifying Party, with thefees and expensesofsuch counsel to be paidby suchIndemnifying Party if,based upon thewritten opinion ofcounsel ofsuch Indemnified Party,representation of bothpartiesby the samecounsel would beinappropriatedue toactual orpotential differinginterests between them orbecause theIndemnified Partyand Indemnifying Partiesmayhave different orconflicting defensesin anysuch action. No Indemnifying Party shall,withouttheprior written consent of theIndemnified Party, consent to entry ofjudgment oreffectanysettlement ofanyclaimor pending orthreatened proceeding inrespectofwhich theIndemnified Party is or couldhave been a partyand indemnitycould havebeen sought hereunderbysuch Indemnified Party, unless such judgment orsettlement includes an unconditional release ofsuch Indemnified Partyfrom all liability arising out ofsuch claim orproceeding and does notinclude astatement asto oran admission offault, culpability or afailuretoactbyor on behalfofan Indemnified Party.
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3.4Contribution.
3.4.1Iftheindemnification providedfor in theforegoing Section 3.1,Section 3.2and Section 3.3 isunavailable toanyIndemnified Party inrespectofor insufficient tocoverany loss,claim, damage, liabilityoraction referred to herein,then each suchIndemnifying Party, inlieu ofindemnifying such Indemnified Party, shall contribute to theamount paid orpayablebysuch Indemnified Partyasa result ofsuch loss,claim, damage,liability oraction insuch proportion as isappropriate toreflect therelative fault of theIndemnified Parties and theIndemnifying Parties inconnection with the actions or omissionswhich resulted insuchloss, claim,damage, liability oraction, as well as anyother relevant equitableconsiderations. The relative fault ofanyIndemnifiedPartyandanyIndemnifyingParty shall bedeterminedbyreferenceto,among other things, whether the untrue orallegeduntruestatement of amaterial factor the omission oralleged omission tostateamaterial fact relates toinformation suppliedbysuch Indemnified Party orsuch Indemnifying Partyand theparties’ relative intent, knowledge, access toinformation and opportunity tocorrectorprevent such statementor omission.
3.4.2The parties hereto agree thatitwould not bejust and equitable ifcontribution pursuant to thisSection3.4were determinedbypro rataallocation orbyanyother method ofallocation which doesnottake account of theequitable considerationsreferred to in theimmediatelypreceding Section 3.4.1.
3.4.3The amount paidorpayablebyan Indemnified Partyas aresult ofany loss,claim, damage, liabilityoractionreferred to in theimmediatelyprecedingparagraph shall bedeemedtoinclude, subject to thelimitations set forth above, anylegal or other expensesincurredby suchIndemnified Party inconnection with investigating or defendingany suchactionor claim.Notwithstanding the provisions of thisArticle3, noholder ofRegistrable Securities shallberequiredtopay any amount inrespectofindemnification and/or contribution inexcessof thedollar amount of thenet proceeds (after payment ofany underwritingfees, discounts, commissions or taxes)actually receivedbysuchholder from thesaleofRegistrable Securities which gave rise tosuch indemnification and/or contribution obligation. No person guilty offraudulent misrepresentation (within the meaning ofSection 11(f) of theSecuritiesAct)shall beentitled tocontribution from any personwho was notguiltyofsuch fraudulentmisrepresentation.Inaddition, no holder ofRegistrable Securitiesor anyaffiliate thereof shall berequired topay anyamount as contribution,unless such personorentitywouldhave beenrequired topaysuch amount pursuant toSection3.2, if ithad been applicableinaccordance with itsterms.
3.4.4Theindemnityand contributionagreements contained herein shall be in addition toanyother rightstoindemnification or contributionwhichanyIndemnified Partymayhave pursuant tolaw orcontract and shall remain operative and infull force andeffect regardlessof anyinvestigation madeoromitted byoron behalf ofanyIndemnified Party and shallsurvive thetransferoftheRegistrable Securitiesby any suchParty. The indemnification and contribution required by thisRegistration Rights Agreement shall bemade by periodicpaymentsof theamount thereof during thecourseof theinvestigation ordefense, as and when billsare received orexpense,loss,damage or liability isincurred.
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ARTICLE4
RULE144
4.1Rule144.The Company covenants that itshall file anyreports requiredto befiledby itunder theSecurities Act and theExchange Actand shall take such further action as theholders ofRegistrable Securities may reasonablyrequest, all to the extentrequired from time to time toenable such holders to sellRegistrable Securities without registration under theSecurities Act within thelimitationofthe exemptionsprovidedbyRule 144under theSecurities Act, as such Rule may beamended from time totime,or anysimilar rule orregulation hereafteradoptedby the Commission.To the extent anyholder desires tosell Registrable Securities pursuant toRule 144, the Companyagreestoprovide customary instructions to thetransfer agent to removeanyrestrictive legends from such securities and toprovide orcauseany customary opinions ofcounsel to bedeliveredto thetransferagent inconnection withanysuch sale. Inaddition, the Companyagreesto removeanyrestrictive legendfrom theRegistrable Securities upon thereasonable request ofany holderas soonas reasonablypermittedbyapplicable law and customarypractice(including customary transferagent practices).
ARTICLE5
MISCELLANEOUS
5.1Assignment; No Third-Party Beneficiaries. This Registration Rights Agreement andtherights, duties and obligations of the Companyhereundermaynot beassigned ordelegatedby the Company inwholeorinpart. This Registration Rights Agreement and therights, duties and obligations of the holders ofRegistrable Securitieshereundermay be freelyassigned ordelegatedbysuch holder ofRegistrable Securities inconjunction with and to the extent ofanytransfer ofRegistrable Securitiesby anysuch holder.This Registration Rights Agreement and theprovisions hereofshall be binding uponand shallinureto thebenefitofeachof theParties,to thepermitted assignsofOlayanorholder ofRegistrable Securitiesorof anyassigneeofOlayan orholder ofRegistrable Securities. This Registration Rights Agreement is notintended toconferanyrights orbenefits on any personsthat are not partyhereto otherthan as expressly setforth inArticle3and thisSection 5.1.
5.2Notices. All notices, demands, requests,consents,approvalsorother communications required orpermittedto begiven hereunder or whichare given with respect to thisRegistration Rights Agreement shall be in writingandshall be personallyserved, delivered byreputable air courier service with charges prepaid, ortransmitted byhand delivery, telegram, telex orfacsimile, addressed as set forth below, or tosuch other address as such Partyshall havespecified most recently bywritten notice.Noticeshall bedeemed given on the date ofservice ortransmission ifpersonally served ortransmitted bytelegram, telex orfacsimile;providedthat ifsuch service or transmission is not on abusinessday or isafter normal businesshours, then such notice shall bedeemed given on the nextbusiness day. Notice otherwise sentas provided herein shall bedeemed given on thenext business dayfollowingtimelydelivery ofsuch notice to areputableaircourier service with anorderfornext-daydelivery.
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TotheCompany: | |
NationalEnergyServices Reunited Corp. | |
777 PostOak Blvd., Suite 800 | |
Houston, Texas77056 | |
Attn: Sherif Foda, Chief Executive Officer | |
witha copy to: | |
Ellenoff Grossman& ScholeLLP | |
1345Avenueof theAmericas | |
New York, NY10105 | |
Attn: Stuart Neuhauser, Esq. | |
TotheOlayan: | |
P.O. Box8772 | |
Riyadh,11492,Saudi Arabia | |
Attn: Fadi Otaqui | |
E-mail: F.Otaqui@olayangroup.com | |
witha copy(whichshall notconstitute notice)to: | |
Shearman&Sterling(London)LLP | |
9Appold Street | |
London EC2A 2AP | |
United Kingdom | |
Attn: Paul Strecker | |
E-mail: Paul.Strecker@Shearman.com |
5.3Severability. This Registration Rights Agreement shallbedeemed severable, and the invalidity or unenforceability ofany term orprovision hereof shall notaffect the validityorenforceabilityof thisRegistration Rights Agreement or ofany other term orprovision hereof. Furthermore, inlieu of any suchinvalidorunenforceable term or provision, theparties hereto intend that there shallbe addedasapart of thisRegistration Rights Agreementaprovision as similar interms tosuch invalid orunenforceable provision asmay be possiblethat isvalid and enforceable.
5.4Counterparts. This Registration Rights Agreementmaybeexecuted in multiplecounterparts, eachof whichshallbedeemed an original, and all of whichtaken together shallconstituteoneand the sameinstrument.
5.5Entire Agreement. This Registration Rights Agreement(includingall agreements entered intopursuant hereto and all certificates and instruments delivered pursuant hereto and thereto) constitutes the entireagreement of the Partieswith respect to thesubject matter hereof and supersedes all priorand contemporaneous agreements, representations,understandings, negotiations and discussionsbetween theParties, whetheroral orwritten.
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5.6Modifications and Amendments. No amendment, modificationorterminationof thisRegistration Rights Agreement shall beeffective against the Companyor anyholder ofRegistrable Securities unlesssuch amendment, modification ortermination isapprovedinwriting by the Companyand Olayan.
5.7TitlesandHeadings. Titles and headingsofsections of thisRegistration Rights Agreement arefor convenienceonlyand shall notaffecttheconstruction of any provision of thisRegistration Rights Agreement.
5.8WaiversandExtensions.Anyparty to thisRegistration Rights Agreement maywaive anyright, breachor defaultwhich such Partyhas theright towaive;provided,however, that such waiver will not beeffective against thewaiving Partyunless it is inwriting,issignedbysuch Party, and specificallyrefers to thisRegistration Rights Agreement. Waiversmay be made inadvanceorafter the rightwaived hasarisen or thebreachordefault waived has occurred.Anywaivermay beconditional. No waiver ofanybreachof anyagreement orprovision herein contained shall be deemed awaiver ofany precedingor succeeding breachthereof norof anyother agreementorprovisionherein contained. Nowaiveror extension of timefor performance ofanyobligations or actsshall bedeemed awaiver or extension of thetime for performance of any otherobligationsor acts.
5.9Remedies Cumulative.Intheevent that theCompany fails toobserveorperformanycovenant oragreement to beobservedorperformed under thisRegistration Rights Agreement, Olayan orany other holder ofRegistrable Securitiesmay proceed to protectandenforce itsrightsby suit in equity or actionat law, whether forspecific performanceofanyterm contained in thisRegistration Rights Agreement orfor an injunction against thebreachof anysuch term or inaid of theexercise ofany powergrantedin thisRegistration Rights Agreement or toenforceanyother legal orequitable right, or to takeany oneormoreofsuch actions,without being requiredto post a bond.None of therights, powers orremedies conferred under thisRegistration Rights Agreement shallbe mutuallyexclusive, and each such right, power or remedyshall becumulative and inaddition to anyother right, power orremedy, whether conferredby thisRegistration Rights Agreement or now orhereafter available at law, inequity,bystatute orotherwise.
5.10GoverningLaw.This Registration Rights Agreement shall begoverned by, interpreted under, and construed inaccordance with theinternal laws of theState ofNew York applicabletoagreements made and to beperformed within theStateofNewYork.
5.11WaiverofTrial byJury. Each Party hereby irrevocablyand unconditionallywaivestheright to atrialbyjury in anyaction, suit,counterclaimor other proceeding(whether based oncontract, tort orotherwise) arising outof, connectedwith orrelatingtothis Registration Rights Agreement, the transactionscontemplated hereby,or theactions ofOlayanin thenegotiation, administration, performanceorenforcementhereof.
5.12Further Assurances. EachPartyhereto shall doand perform or cause to be doneand performed all such further acts and things andshall execute and deliver all such other agreements, certificates, instruments and documentsasanyother Partyhereto reasonablymayrequest inorderto carry out theintent and accomplish thepurposesofthis Registration Rights Agreement and the consummation of thetransactions contemplated hereby.
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5.13Restructuring. Tothe extentthat theboard ofdirectorsorothergoverning authority of the Companyelectstoeffect arestructuring orrecapitalization of the Companyor substantiallyall of the business of the Company through a subsidiary orparentcompanyof the Company orotherwise,theprovisions of thisRegistrationRightsAgreement shall be appropriatelyadjusted, and theholders ofRegistrable Securities and the Company shallenter intosuch further agreements and arrangementsas shall be reasonably necessary orappropriatetoprovide theholders ofRegistrable Securities with substantially thesame registration rights as theywould have under thisRegistration Rights Agreement, giving dueconsiderationto thenature of thenew publicentity, the nature of thesecurities tobeoffered and tax and otherrelevant considerations. The Companyagrees that itshallnoteffector permit tooccuranycombination or subdivision of itscapital stock which would adverselyaffectthe ability ofany holder ofanyRegistrable Securities toinclude suchRegistrable Securities inanyregistration contemplated by thisRegistration Rights Agreement or the marketabilityofsuch Registrable Securities inanysuch registration. The provisions of thisRegistration Rights Agreement shall apply, to thefullextentset forth herein with respect to theRegistrable Securities, toanyand all shares ofcapital stock of theCompany,any successor orassignof the Company(whether bymerger, shareexchange, consolidation, saleof assets orotherwise) orany subsidiary orparent company of the Companywhich maybeissued inrespect of, inexchange for or in substitution ofRegistrable Securities and shall beappropriately adjusted foranystock dividends, splits,reverse splits,combinations, recapitalizations and the likeoccurring afterthe datehereof.
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IN WITNESS WHEREOF, the Parties have caused this Registration Rights Agreement to be executed and delivered by their duly authorized representatives as of the date first written above.
COMPANY: | ||
NATIONAL ENERGY SERVICES REUNITED CORP. | ||
By: | /s/ Sherif Foda | |
Name: | Sherif Foda | |
Title: | CEO |
OLAYAN: | ||
Hana Investments Co. WLL | ||
By: | /s/ Saleh A Al Enazi | |
Name: | Saleh A Al Enazi | |
Title: | Authorized Signatory |
[ Signature Page to the Registration Rights Agreement ]