EXHIBIT 10.1
FIRST AMENDED AND RESTATED AGREEMENT
This First Amended and Restated Agreement (this "Agreement") dated as
of January 17, 2003 is entered into by and between Cal Dive International,
Inc., a corporation organized under the laws of Minnesota (together with its
successors, "Cal Dive"), and Xxxxxxxx International, Ltd., a company organized
under the laws of Bermuda (together with its successors, "Xxxxxxxx").
Reference is made to that certain Agreement dated as of December 31,
2002 by and between Cal Dive and Xxxxxxxx (the "Original Agreement"). The
parties hereto agree that this First Amended and Restated Agreement hereby
amends, restates and supersedes in its entirety the Original Agreement;
provided, however, that (1) all references to the "date hereof," "date of this
Agreement," " date first above written" and other, similar references contained
herein or incorporated by reference into the Certificate of Rights and
Preferences or any Subsequent Certificate of Rights and Preferences shall be
deemed to refer to December 31, 2002; and (2) all references to the Original
Agreement (except as provided in (1) above) contained in any of the Annexes to
the Original Agreement shall be deemed to refer instead to this Agreement and,
as so amended, those Annexes shall be deemed to be Annexes to this Agreement.
The parties hereto agree as follows:
1. Purchase and Sale. In consideration of and upon the basis of the
representations, warranties and agreements and subject to the terms and
conditions set forth in this Agreement:
(a) Xxxxxxxx agrees to purchase from Cal Dive, and Cal Dive agrees to
sell to Xxxxxxxx on the Initial Closing Date (as defined below), in
accordance with Section 2 below, twenty-five thousand (25,000) shares (the
"Initial Preferred Shares") of Cal Dive's Series A-1 Cumulative
Convertible Preferred Stock (the "Series A-1 Preferred Stock"), having the
terms and conditions set forth in the Certificate of Rights and
Preferences attached hereto as Annex A (the "Certificate of Rights and
Preferences"), at a price of one thousand dollars ($1,000) per share for
an aggregate purchase price of twenty-five million dollars ($25,000,000).
Xxxxxxxx shall have the rights with respect to such Initial Preferred
Shares specified in this Agreement and in the Certificate of Rights and
Preferences.
(b) The closing (the "Initial Closing") of the sale of the Initial
Preferred Shares occurred on January 8, 2003 (such date, the "Initial
Closing Date").
(c) Cal Dive grants Xxxxxxxx rights (the "Xxxxxxxx Rights") to
require Cal Dive to issue to it from time to time, in whole or in part, up
to an aggregate of thirty thousand (30,000) shares of additional series of
Cal Dive preferred stock (e.g., Series A-2 Cumulative Convertible
Preferred Stock, Series A-3 Cumulative Convertible Preferred Stock, etc.)
having, except as set forth below, the terms, conditions, rights,
preferences and privileges as the Series A-1 Preferred Stock (such shares
shall collectively be referred to as the "Additional Preferred Shares" and
together with the Initial Preferred Shares, the "Series A Preferred
Shares") at a price of one thousand dollars ($1,000) per share for an
aggregate purchase price for all Additional Preferred Shares of thirty
million dollars ($30,000,000), and together with the Initial Preferred
Shares, fifty-five million dollars ($55,000,000) in the aggregate of
Series A Preferred Shares. Xxxxxxxx shall have the rights with respect to
such Additional Preferred Shares specified in this Agreement and in a
certificate of rights and preferences for each such series of Additional
Preferred Shares (each, a "Subsequent Certificate of Rights and
Preferences" and collectively, the "Subsequent Certificates of Rights and
Preferences"). Each Subsequent Certificate of Rights and Preferences shall
have the same terms and conditions as the Certificate of Rights and
Preferences, except that (A) the Conversion Price (as defined therein)
shall equal one hundred twenty-five percent (125%) of the Prevailing
Market Price (as defined therein) calculated as of the Business Day of the
corresponding Xxxxxxxx Notice (as defined below) (except as otherwise
provided in this sub-section 1(c)); and (B) the number of Additional
Preferred Shares issued pursuant to each Subsequent Certificate of Rights
and Preferences may differ from the number of shares of Series A-1
Preferred Stock. To exercise any Xxxxxxxx Rights, Xxxxxxxx shall deliver
one or more written notices substantially in the form attached hereto as
Annex B (a "Xxxxxxxx Notice") to Cal Dive from time to time commencing
from the date six (6) months after and excluding the date hereof (the
"Xxxxxxxx Rights Commencement Date") and ending no later than twenty-four
(24) months after and excluding the Xxxxxxxx Rights Commencement Date (the
"Xxxxxxxx Rights Period"). Xxxxxxxx may not deliver a Xxxxxxxx Notice on
any date on which the volume-weighted average price of Cal Dive common
stock, no par value ("Common Stock") is less than twenty four dollars
($24.00), as adjusted pursuant to Sections 8 and 9(b) (the "Xxxxxxxx
Rights Trigger Price"); provided, however, if Xxxxxxxx could exercise the
Xxxxxxxx Rights but for the fact that the Xxxxxxxx Rights Trigger Price
condition is not met, then Xxxxxxxx shall have the right to exercise the
Xxxxxxxx Rights and receive Additional Preferred Shares which shall have
the same Conversion Price as the Series A-1 Preferred Stock (x) assuming,
solely for the purposes of determining the Conversion Price for such
series of Additional Preferred Shares, that Series A-1 Preferred Stock is
then outstanding and (y) making all appropriate adjustments to the
Conversion Price, as set forth in this Agreement, the Certificate of
Rights and Preferences and Subsequent Certificate of Rights and
Preferences, until and including the date of the closing of the exercise
of such Xxxxxxxx Rights. Upon satisfaction or, if applicable, waiver of
the relevant conditions set forth in Sections 13 and 14 hereof, the
closing of each exercise of Xxxxxxxx Rights (each, a "Subsequent Closing")
shall take place on the date that is three (3) Business Days following and
excluding the date of delivery of the Xxxxxxxx Notice or on such other
date as Xxxxxxxx and Cal Dive shall mutually agree (such date and time
being referred to herein as the "Subsequent Closing Date," and together
with the Initial Closing Date, each a "Closing Date").
(d) As used herein, the term "Common Shares" means the shares of
Common Stock issuable upon conversion or redemption of or as dividends
under the Series A Preferred Shares, and all other Common Stock issuable
under the Certificate of Rights and Preferences, Subsequent Certificates
of Rights and Preferences or this Agreement; the term "Investment
Securities" means the Series A Preferred Shares issued hereunder, the
Xxxxxxxx Rights and all Common Shares; the term "Business Day" means any
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day on which the Common Stock may be traded on the Nasdaq or, if not
admitted for trading on the Nasdaq, on any day other than a Saturday,
Sunday or holiday on which banks in New York City are required or
permitted to be closed; the term "Nasdaq NMS" means the Nasdaq National
Market; and the term "Nasdaq" means the Nasdaq NMS, but if the Nasdaq NMS
is not then the principal U.S. trading market for the Common Stock, then
"Nasdaq" shall be deemed to mean the principal U.S. national securities
exchange (as defined in the Securities Exchange Act of 1934, as amended
(the "Exchange Act")) on which the Common Stock, or such other applicable
common stock, is then traded, or if such Common Stock, or such other
applicable common stock, is not then listed or admitted to trading on any
national securities exchange but is designated as a Nasdaq SmallCap Market
Security by the National Association of Securities Dealers, Inc. ("NASD"),
then such market system, or if such Common Stock, or such other applicable
common stock, is not listed or quoted on any of the foregoing, then the
OTC Bulletin Board.
2. Initial Closing. The Initial Closing shall take place initially via
facsimile on the Initial Closing Date in the manner set forth below; provided,
that, original certificates representing shares of Series A-1 Preferred Stock
shall be delivered via Federal Express or another reputable overnight carrier
to the address set forth in Annex AA.
At the Initial Closing, the following deliveries shall be made:
(a) Series A-1 Preferred Stock. Cal Dive shall deliver to
Xxxxxxxx five (5) stock certificates, each representing five thousand
(5,000) shares of Series A-1 Preferred Stock, duly executed by Cal
Dive in definitive form, and shall register such shares in the
shareholder register of Cal Dive in the name of Xxxxxxxx or as
instructed by Xxxxxxxx in writing.
(b) Purchase Price. Xxxxxxxx shall cause to be wire transferred
to Cal Dive, in accordance with the instructions set forth in Section
19, the aggregate purchase price of twenty-five million dollars
($25,000,000) in immediately available United States funds.
(c) Closing Documents. The closing documents required by
Sections 13 and 14 shall be delivered to Xxxxxxxx and Cal Dive,
respectively.
(d) Delivery Notice. An executed copy of the delivery notice in
the form attached hereto as Annex C shall be delivered to Xxxxxxxx.
The deliveries specified in this Section 2 shall be deemed to occur
simultaneously as part of a single transaction, and no delivery shall be deemed
to have been made until all such deliveries have been made.
3. Subsequent Closing. Each Subsequent Closing shall take place initially
via facsimile on the Subsequent Closing Date in the manner set forth below;
provided, that, original certificates representing Additional Preferred Shares
shall be delivered via Federal Express or another reputable overnight carrier
to Xxxxxxxx as Xxxxxxxx instructs in writing. Each Subsequent
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Closing shall be for an Additional Issuance Price (as hereinafter defined) of
not less than five million dollars ($5,000,000), unless the Additional Issuance
Price for all then remaining Xxxxxxxx Rights is less than five million dollars
($5,000,000), in which instance, such Subsequent Closing shall be for the
Additional Issuance Price for all such remaining Additional Preferred Shares.
At each Subsequent Closing, the following deliveries shall be made:
(a) Additional Preferred Shares. Cal Dive shall issue and deliver to
Xxxxxxxx stock certificates, each representing five thousand (5,000)
Additional Preferred Shares (except that to the extent the number of
Additional Preferred Shares to be delivered is not evenly divisible by
five thousand (5,000), one (1) stock certificate shall represent the
remaining shares), duly executed by Cal Dive, and shall register such
shares in the shareholder register of Cal Dive in the name of Xxxxxxxx or
as instructed by Xxxxxxxx in writing.
(b) Purchase Price. Xxxxxxxx shall cause to be wire transferred to
Cal Dive, in accordance with the instructions set forth in Section 19, one
thousand dollars ($1,000) per Additional Preferred Share, as specified in
the applicable Xxxxxxxx Notice (in the aggregate, the "Additional Issuance
Price") payable on such Subsequent Closing Date, in immediately available
United States funds.
(c) Closing Documents. The closing documents required by Sections 13
and 14 shall be delivered to Xxxxxxxx and Cal Dive, respectively.
(d) Delivery Notice. An executed copy of the delivery notice in the
form attached hereto as Annex C shall be delivered to Xxxxxxxx.
The deliveries specified in this Section 3 shall be deemed to occur
simultaneously as part of a single transaction, and no delivery shall be deemed
to have been made until all such deliveries have been made.
4. Representations and Warranties of Cal Dive. Cal Dive hereby represents
and warrants to Xxxxxxxx on each Closing Date, as follows:
(a) Cal Dive has been duly incorporated and is validly existing in
good standing under the laws of Minnesota or, after the Initial Closing
Date, if another entity has succeeded Cal Dive in accordance with the
terms hereof, under the laws of one of the states of the United States or
the District of Columbia.
(b) The execution, delivery and performance of this Agreement, the
Certificate of Rights and Preferences and the Subsequent Certificates of
Rights and Preferences (including the authorization, sale, issuance and
delivery of the Investment Securities) have been duly authorized by all
requisite corporate action and no further consent or authorization of Cal
Dive, its Board of Directors or its shareholders is required, except as
otherwise contemplated by this Agreement.
(c) This Agreement has been duly executed and delivered by Cal Dive
and, when this Agreement is duly authorized, executed and delivered by
Xxxxxxxx, will be a valid and binding agreement enforceable against Cal
Dive in accordance with its terms, subject to bankruptcy, insolvency,
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reorganization, moratorium and similar laws of general applicability
relating to or affecting creditors' rights generally and to general
principles of equity. The issuance of the Investment Securities is not and
will not be subject to any preemptive right or rights of first refusal
that have not been properly waived or complied with.
(d) Cal Dive has full corporate power and authority necessary to (i)
own and operate its properties and assets, execute and deliver this
Agreement, (ii) perform its obligations hereunder and under the
Certificate of Rights and Preferences or Subsequent Certificates of Rights
and Preferences (including, but not limited to, the issuance of the
Investment Securities) and (iii) carry on its business as presently
conducted and as presently proposed to be conducted. Cal Dive and its
subsidiaries are duly qualified and are authorized to do business and are
in good standing as foreign corporations in all jurisdictions in which the
nature of their activities and of their properties (both owned and leased)
makes such qualification necessary, except for those jurisdictions in
which failure to do so would not, individually or in the aggregate, be
reasonably expected to have a material adverse effect on (i) the business
affairs, assets, results of operations or prospects of Cal Dive or any of
its subsidiaries, or (ii) the transactions contemplated by, or Cal Dive's
ability to perform under, this Agreement, the Certificate of Rights and
Preferences or any Subsequent Certificate of Rights and Preferences.
(e) No consent, approval, authorization or order of any court,
governmental agency or other body is required for execution and delivery
by Cal Dive of this Agreement or the performance by Cal Dive of any of its
obligations hereunder and under the Certificate of Rights and Preferences
or Subsequent Certificates of Rights and Preferences other than the
approval of the SEC of the Registration Statement to be filed pursuant to
the terms hereof.
(f) Neither the execution and delivery by Cal Dive of this Agreement
nor the performance by Cal Dive of any of its obligations hereunder and
under the Certificate of Rights and Preferences or Subsequent Certificates
of Rights and Preferences:
(i) violates, conflicts with, results in a breach of, or
constitutes a default (or an event which with the giving of notice or
the lapse of time or both would be reasonably likely to constitute a
default) or creates any rights in respect of any person under (A) the
certificates of incorporation or by-laws of Cal Dive or any of its
subsidiaries, (B) any decree, judgment, order, law, treaty, rule,
regulation or determination of any court, governmental agency or
body, or arbitrator having jurisdiction over Cal Dive or any of its
subsidiaries or any of their respective properties or assets, (C) the
terms of any bond, debenture, indenture, credit agreement, note or
any other evidence of indebtedness, or any agreement, stock option or
other similar plan, lease, mortgage, deed of trust or other
instrument to which Cal Dive or any of its subsidiaries is a party,
by which Cal Dive or any of its subsidiaries is bound, or to which
any of the properties or assets of Cal Dive or any of its
subsidiaries is subject, (D) the terms of any "lock-up" or similar
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provision of any underwriting or similar agreement to which Cal Dive
or any of its subsidiaries is a party, (E) any rule or regulation of
the NASD or the Nasdaq NMS or any rule or regulation of the markets
where Cal Dive's securities are publicly traded or quoted applicable
to Cal Dive or the transactions contemplated hereby or (F) the Second
Amended and Restated Loan and Security Agreement, dated as of
February 22, 2002, by and among Fleet Capital Corporation, Southwest
Bank of Texas, N.A. and Whitney National Bank, as lenders, and Cal
Dive, Energy Resource Technology, Inc., Aquatica, Inc., and Canyon
Offshore, Inc., as borrower, as amended; or
(ii) results in the creation or imposition of any lien, charge
or encumbrance upon any Investment Securities or upon any of the
properties or assets of Cal Dive or any of its subsidiaries.
(g) Cal Dive has validly reserved for issuance to Xxxxxxxx under this
Agreement seven million, four hundred eighty-six thousand, nine hundred
seven (7,486,907) shares of Common Stock. When issued to Xxxxxxxx against
payment therefor, each Investment Security:
(i) will have been duly and validly authorized, duly and validly
issued, fully paid and non-assessable;
(ii) will be free and clear of any security interests, liens,
claims or other encumbrances; and
(iii) will not have been issued or sold in violation of any
preemptive or other similar rights of the holders of any securities
of Cal Dive.
(h) Cal Dive satisfies all maintenance criteria of the Nasdaq NMS. No
present set of facts or circumstances will (with the passage of time or
the giving of notice or both or neither) cause any of the Common Stock to
be delisted from the Nasdaq NMS. All of the Common Shares will, when
issued, be duly listed and admitted for trading on all of the markets
where shares of Common Stock are traded, including the Nasdaq NMS.
(i) There is no pending or, to the best knowledge of Cal Dive,
threatened action, suit, proceeding or investigation before any court,
governmental agency or body, or arbitrator having jurisdiction over Cal
Dive or any of its affiliates that would affect the execution by Cal Dive
of, or the performance by Cal Dive of its obligations under, this
Agreement, the Certificate of Rights and Preferences or Subsequent
Certificates of Rights and Preferences.
(j) Since January 1, 2000, none of Cal Dive's filings with the United
States Securities and Exchange Commission (the "SEC") under the Securities
Act of 1933, as amended (the "Securities Act") or under Section 13(a) or
15(d) of the Exchange Act (each an "SEC Filing"), including the financial
statements and schedules of Cal Dive and results of Cal Dive's operations
and cash flow contained therein, contained any untrue statement of a
material fact or omitted to state any material fact necessary in order to
make the statements, in the light of the circumstances under which they
were made,
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not misleading. Since January 1, 2002, there has not been any pending or,
to the best knowledge of Cal Dive, threatened action, suit, proceeding or
investigation before any court, governmental agency or body, or arbitrator
having jurisdiction over Cal Dive or any of its subsidiaries or any of its
affiliates that could cause a material adverse change in the condition,
financial or otherwise, or in the business affairs, assets, results of
operations or prospects of Cal Dive and its subsidiaries, whether or not
arising in the ordinary course of business, except as disclosed in Cal
Dive's SEC Filings on or before the date immediately prior to and
excluding the date hereof. Since the date of Cal Dive's most recent SEC
Filing, there has not been, and Cal Dive is not aware of, any development
or condition that is reasonably likely to result in, any material change
in the condition, financial or otherwise, or in the business affairs,
assets, results of operations or prospects of Cal Dive and its
subsidiaries, whether or not arising in the ordinary course of business.
Cal Dive's SEC Filings made before and excluding the Closing Date fully
disclose all material information concerning Cal Dive and its subsidiaries
(other than the existence and terms of this Agreement).
(k) The offer and sale of the Investment Securities to Xxxxxxxx
pursuant to this Agreement will, subject to the accuracy of Xxxxxxxx'x
representations and warranties contained in Section 7 hereof and
compliance by Xxxxxxxx with the applicable covenants and agreements
contained in Section 11 hereof, be made in accordance with an exemption
from the registration requirements of the Securities Act and any
applicable state law. Neither Cal Dive nor any agent on its behalf has
solicited or will solicit any offers to buy or has offered to sell or will
offer to sell all or any part of the Investment Securities or any other
securities to any person or persons so as to bring the sale of such
Investment Securities by Cal Dive within the registration provisions of
the Securities Act.
(l) Immediately prior to the Initial Closing Date, the authorized
capital stock of Cal Dive consists of one hundred twenty million
(120,000,000) shares of Common Stock, no par value and five million
(5,000,000) shares of preferred stock, par value $0.01 per share.
Immediately prior to the Initial Closing Date, (A) thirty-seven million,
four hundred eighty-four thousand, six hundred one (37,484,601) shares of
Common Stock were issued and outstanding, and two million, nineteen
thousand, three hundred thirty-nine (2,019,339) shares of Common Stock are
currently reserved and subject to issuance upon the exercise of
outstanding stock options, warrants or other convertible rights, (B)
thirteen million, six hundred and two thousand, four hundred eighteen
(13,602,418) shares of Common Stock are held in the treasury of Cal Dive,
(C) no shares of preferred stock are issued and outstanding and (D) up to
three million, seven hundred forty-eight thousand, four hundred sixty
(3,748,460) additional shares of Common Stock may be issued under the 1995
Long-Term Incentive Plan. All of the outstanding shares of Common Stock
are, and all shares of capital stock which may be issued pursuant to stock
options, warrants or other convertible rights will be, when issued and
paid for in accordance with the respective terms thereof, duly authorized,
validly issued, fully paid and non-assessable, free of any preemptive
rights in respect thereof and issued in compliance with all applicable
state and federal laws concerning issuance of securities. As of the date
hereof, except as set forth above or as disclosed in writing in Schedule
4(l) attached hereto, and except for shares of Common Stock or other
securities issued upon conversion, exchange, exercise or purchase
associated with the securities,
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options, warrants, rights and other instruments referenced above, no
shares of capital stock or other voting securities of Cal Dive were
outstanding, no equity equivalents, interests in the ownership or earnings
of Cal Dive or other similar rights were outstanding, and there were no
existing options, warrants, calls, subscriptions or other rights or
agreements or commitments relating to the capital stock of Cal Dive or any
of its subsidiaries or obligating Cal Dive or any of its subsidiaries to
issue, transfer, sell or redeem any shares of capital stock, or other
equity interest in, Cal Dive or any of its subsidiaries or obligating Cal
Dive or any of its subsidiaries to grant, extend or enter into any such
option, warrant, call, subscription or other right, agreement or
commitment.
(m) Solvency. The sum of the assets of Cal Dive, both at a fair
valuation and at present fair salable value, exceeds its liabilities,
including contingent liabilities. Cal Dive has sufficient capital with
which to conduct its business as presently conducted and as proposed to be
conducted. Cal Dive has not incurred debt, and does not intend to incur
debt, beyond its ability to pay such debt as it matures. For purposes of
this paragraph, "debt" means any liability on a claim, and "claim" means
(x) a right to payment, whether or not such right is reduced to judgment,
liquidated, unliquidated, fixed, contingent, matured, unmatured, disputed,
undisputed, legal, equitable, secured, or unsecured, or (y) a right to an
equitable remedy for breach of performance if such breach gives rise to a
payment, whether or not such right to an equitable remedy is reduced to
judgment, fixed, contingent, matured, unmatured, disputed, undisputed,
secured, or unsecured. With respect to any such contingent liabilities,
such liabilities are computed at the amount which, in light of all the
facts and circumstances existing at the time, represents the amount which
can reasonably be expected to become an actual or matured liability.
(n) Equivalent Value. As of the Initial Closing Date, the
consideration that Cal Dive is receiving from Xxxxxxxx is equivalent in
value to the consideration Xxxxxxxx is receiving from Cal Dive pursuant to
this Agreement. As of the Initial Closing Date, under the terms of this
Agreement, Cal Dive is receiving fair consideration from Xxxxxxxx for the
agreements, covenants, representations and warranties made by Cal Dive to
Xxxxxxxx.
(o) No Non-Public Information. Xxxxxxxx has not requested from Cal
Dive, and Cal Dive has not furnished to Xxxxxxxx, any material non-public
information concerning Cal Dive or its subsidiaries.
(p) Restatement Notices. As of each Subsequent Closing Date, Cal Dive
has provided Xxxxxxxx with all Restatement Notices (as defined in the
Certificate of Rights and Preferences or Subsequent Certificates of Rights
and Preferences) required to be delivered following a Restatement (as
defined in the Certificate of Rights and Preferences or Subsequent
Certificates of Rights and Preferences).
5. Registration Provisions.
(a) Cal Dive shall, as soon as practicable and at its own expense,
but in no event later than sixty (60) calendar days after, and including,
the date hereof, file a
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Registration Statement (as defined below) under the Securities Act
covering the resale of all of the Common Shares and shall use its
commercially reasonable efforts to cause such Registration Statement to be
declared effective on or prior to one hundred and twenty-one (121)
calendar days following, and including, the date hereof (the "Required
Registration Date"). The obligations to have the Registration Statement
declared effective and to maintain such effectiveness as provided in this
Section 5 are referred to herein as the "Registration Requirement."
Pursuant to the preceding sentence, Cal Dive shall register pursuant to
such Registration Statement not less than the number of shares of Common
Stock equal to seven million, four hundred eighty-six thousand, nine
hundred seven (7,486,907) (the "Registrable Number"). Cal Dive shall
promptly amend such Registration Statement (or, if necessary, file a new
Registration Statement) at any time that the number of Common Shares
issued and issuable under this Agreement, the Certificate of Rights and
Preferences and Subsequent Certificates of Rights and Preferences exceeds
the Registrable Number (as determined on such date) so that all such
Common Shares shall be registered and freely tradable.
(b) Each Common Share is a "Covered Security" and the registration
statement filed or required to be filed under the Securities Act in
accordance with Section 5(a) hereof, along with any amendments and
additional registration statements, is referred to as the "Registration
Statement". Cal Dive shall provide prompt written notice to Xxxxxxxx when
the Registration Statement has been declared effective by the SEC.
(c) Cal Dive will: (A) use its commercially reasonable efforts to
keep the Registration Statement effective until the earlier of (x) the
later of (i) the second anniversary of the issuance of the last Covered
Security that may be issued, or (ii) such time as all of the Covered
Securities issued or issuable hereunder can be sold by Xxxxxxxx or any of
its affiliates immediately without compliance with the registration
requirements of the Securities Act pursuant to Rule 144 under the
Securities Act ("Rule 144") and (y) the date all of the Covered Securities
issued or issuable shall have been sold by Xxxxxxxx and its affiliates
(such later period, the "Registration Period"); (B) prepare and file with
the SEC such amendments and supplements to the Registration Statement and
the prospectus used in connection with the Registration Statement (as so
amended and supplemented from time to time, the "Prospectus") as may be
necessary to comply with the provisions of the Securities Act with respect
to the disposition of all Covered Securities by Xxxxxxxx or any of its
affiliates; (C) furnish such number of Prospectuses and other documents
incident thereto, including any amendment of or supplement to the
Prospectus, as Xxxxxxxx from time to time may reasonably request; (D)
cause all Covered Securities to be listed on each securities exchange and
quoted on each quotation service on which similar securities issued by Cal
Dive are then listed or quoted; (E) provide a transfer agent and registrar
for all Covered Securities and a CUSIP number for all Covered Securities;
(F) otherwise comply with all applicable rules and regulations of the SEC,
the Nasdaq NMS and any other exchange or quotation service on which the
Covered Securities are obligated to be listed or quoted under this
Agreement; and (G) file the documents required of Cal Dive and otherwise
obtain and maintain requisite blue sky clearance in (x) New York and all
other jurisdictions in which any of the shares of Common Stock were
originally sold and (y) all other states specified in writing by Xxxxxxxx,
provided, however, that as to this clause (y), Cal Dive shall not be
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required to qualify to do business or consent to service of process in any
state in which it is not now so qualified or has not so consented.
Xxxxxxxx shall have the right to approve the description of the selling
shareholder, plan of distribution and all other references to Xxxxxxxx and
its affiliates contained in each Registration Statement and Prospectus.
(d) Cal Dive shall furnish to Xxxxxxxx upon request a reasonable
number of copies of a supplement to or an amendment of any Prospectus as
may be necessary in order to facilitate the public sale or other
disposition of all or any of the Covered Securities by Xxxxxxxx or any of
its affiliates pursuant to the Registration Statement.
(e) With a view to making available to Xxxxxxxx and its affiliates
the benefits of Rule 144 and Form S-3 under the Securities Act, Cal Dive
covenants and agrees to: (A) make and keep available adequate current
public information (within the meaning of Rule 144(c)) concerning Cal
Dive, until the earlier of (x) the second (2nd) anniversary of the
issuance of the last Covered Security to be issued and (y) such date as
all of the Covered Securities shall have been resold by Xxxxxxxx or any of
its affiliates; and (B) furnish to Xxxxxxxx upon request, as long as
Xxxxxxxx owns any Covered Securities, (x) a written statement by Cal Dive
that it has complied with the reporting requirements of the Securities Act
and the Exchange Act, (y) a copy of the most recent annual or quarterly
report of Cal Dive, and (z) such other information as may be reasonably
requested in order to avail Xxxxxxxx and its affiliates of Rule 144 or
Form S-3 with respect to such Covered Securities.
(f) Notwithstanding anything else in this Section 5, if, at any time
during which a Prospectus is required to be delivered in connection with
the sale of any Covered Security, Cal Dive determines in good faith and
upon the advice of its outside counsel that a development has occurred or
a condition exists as a result of which the Registration Statement or the
Prospectus contains a material misstatement or omission, or that a
material transaction in which Cal Dive is engaged or proposes to engage
would require an immediate amendment to the Registration Statement, a
supplement to the Prospectus, or a filing under the Exchange Act or other
public disclosure of material information and the disclosure of such
transaction would be premature or injurious to the consummation of the
transaction, Cal Dive will immediately notify Xxxxxxxx thereof by
telephone and in writing. Upon receipt of such notification, Xxxxxxxx and
its affiliates will immediately suspend all offers and sales of any
Covered Security pursuant to the Registration Statement. In such event,
Cal Dive will amend or supplement the Registration Statement and the
Prospectus or make such filings or public disclosures as promptly as
practicable and will take such other steps as may be required to permit
sales of the Covered Securities thereunder by Xxxxxxxx and its affiliates
in accordance with applicable federal and state securities laws. Cal Dive
will promptly notify Xxxxxxxx after it has determined in good faith that
such sales have become permissible in such manner and will promptly
deliver copies of the Registration Statement and the Prospectus (as so
amended or supplemented, if applicable) to Xxxxxxxx in accordance with
paragraphs (c) and (d) of this Section 5. Notwithstanding the foregoing,
(A) under no circumstances shall Cal Dive be entitled to exercise its
right to suspend sales of any Covered Securities as provided in this
Section 5(f) and pursuant to the Registration Statement more than
10
twice in any twelve (12) month period, (B) the period during which such
sales may be suspended (each a "Blackout Period") at any time shall not
exceed thirty (30) calendar days, and (C) no Blackout Period may commence
less than thirty (30) calendar days after the end of the preceding
Blackout Period.
(g) Upon the commencement of a Blackout Period pursuant to this
Section 5, Xxxxxxxx will notify Cal Dive of any contract to sell, assign,
deliver or otherwise transfer any Covered Security (each a "Sales
Contract") that Xxxxxxxx or any of its affiliates has entered into prior
to the commencement of such Blackout Period and that would require
delivery of such Covered Securities during such Blackout Period, which
notice will contain the aggregate sale price and quantity of Covered
Securities pursuant to such Sales Contract. If Xxxxxxxx or any of its
affiliates are therefore unable to consummate the sale of Covered
Securities pursuant to the Sales Contract, Cal Dive will promptly
indemnify each Xxxxxxxx Indemnified Party (as such term is defined in
Section 17(a) below) against any Proceeding (as such term is defined in
Section 17(a) below) that each Xxxxxxxx Indemnified Party may incur
arising out of or in connection with Xxxxxxxx'x breach or alleged breach
of any such Sales Contract, and Cal Dive shall reimburse each Xxxxxxxx
Indemnified Party for any reasonable costs or expenses (including legal
fees) incurred by such party in investigating or defending any such
Proceeding.
(h) In addition to any other remedies available to Xxxxxxxx under
this Agreement or at law or equity, if the Registration Statement has not
been declared effective by the Required Registration Date or such
Registration Statement is not available with respect to all Covered
Securities at any time on or after the Required Registration Date (except
during a Blackout Period permitted under Section 5(f)) Cal Dive shall
cause to be wire transferred to an account specified by Xxxxxxxx on the
last Business Day of each month an amount, in immediately available United
States funds, equal to:
1/15% x ND x SV
Where:
ND= the number of days in such month that the Registration
Statement has not been declared effective by the Required
Registration Date or such Registration Statement is not
available with respect to shares of Covered Securities that
may not otherwise be sold by Xxxxxxxx or any of its
affiliates immediately pursuant to Rule 144 without
compliance with the registration requirements of the
Securities Act ("Non-Rule 144 Stock"); and
SV= the aggregate Stated Value (as defined in the Certificate
of Rights and Preferences and all Subsequent Certificates
of Rights and Preferences) of the average number of shares
of Non-Rule 144 Stock issued and outstanding on each of the
days included in "ND" above.
11
(i) If the Registration Requirement is not satisfied at any point in
time during the Registration Period then the Xxxxxxxx Rights Period shall
be extended by one (1) day for each day (or portion thereof) that the
Registration Requirement shall have not been satisfied.
6. Conversion and Redemption of Preferred Shares.
(a) Preferred Shares and Additional Preferred Shares are convertible
and redeemable into Common Shares or cash in accordance with the terms and
conditions set forth in Section 6 of the Certificate of Rights and
Preferences and Subsequent Certificates of Rights and Preferences. Cal
Dive grants Xxxxxxxx the right to convert all or part of each series of
Series A Preferred Shares (including any accrued and unpaid dividends)
pursuant to the terms and conditions set forth in the Certificate of
Rights and Preferences or Subsequent Certificate of Rights and Preferences
of each such series, upon delivery of a "Preferred Stock Conversion
Notice" in the form attached hereto as Annex D. As set forth in the
Certificate of Rights and Preferences or Subsequent Certificate of Rights
and Preferences of each such series, Cal Dive may satisfy its conversion
obligations by delivering shares of Common Stock or cash. The form of the
"Preferred Stock Conversion Delivery Notice" to be executed and delivered
by Cal Dive to Xxxxxxxx, as specified in the Certificate of Rights and
Preferences or Subsequent Certificate of Rights or Preferences is attached
hereto as Annex E. Cal Dive grants Xxxxxxxx the right to redeem all or
part of each series of Series A Preferred Shares (including any accrued
and unpaid dividends) commencing December 31, 2004 pursuant to the terms
and conditions set forth in the Certificate of Rights and Preferences or
Subsequent Certificate of Rights and Preferences of each such series (or
sooner under certain circumstances set forth therein) (the "Redemption
Rights"), upon delivery of a notice of redemption in the form attached
hereto as Annex F (the "Redemption Notice"). As set forth in the
Certificate of Rights and Preferences or Subsequent Certificate of Rights
or Preferences of each such series, Cal Dive may satisfy its redemption
obligations by delivering shares of Common Stock, cash or, subject to
Section 6(b), resetting the Conversion Prices of the Series A-1 Preferred
Stock and Additional Preferred Shares. The form of the "Preferred Stock
Redemption Delivery Notice" to be executed and delivered by Cal Dive to
Xxxxxxxx, as specified in the Certificate of Rights and Preferences or
Subsequent Certificate of Rights and Preferences is attached hereto on
Annex G.
(b)
(i) If the Daily Market Price (as defined in the Certificate of
Rights and Preferences) is less than the Minimum Price (as defined
below) on any date, then (A) Cal Dive shall provide Xxxxxxxx within
two (2) Business Days with a written notice that either (1) (a) Cal
Dive shall satisfy all its future redemption obligations in cash or
in a combination of Common Stock and cash, provided that in no event
shall the total number of shares of Common Stock issued or issuable
hereunder exceed seven million, four hundred eighty-six thousand,
nine hundred seven (7,486,907) shares, and (b) following such notice,
notwithstanding anything herein to the contrary, if a Restatement (as
defined in the Certificate of Rights and Preferences and Subsequent
Certificates of Rights and Preferences) has occurred on or after
12
December 31, 2002, then Xxxxxxxx shall have the right to cause the
redemption of its Preferred Shares and Additional Preferred Shares,
from time to time, thereafter, or (2) that the Conversion Prices on
all Preferred Shares and Additional Preferred Shares shall be reset
to equal the Minimum Price and all Conversion Prices of future
Additional Preferred Shares to be issued shall equal the Minimum
Price, and upon delivery of such notice such Conversion Prices shall
be so reset and Xxxxxxxx shall have no further right to cause the
redemption of its Preferred Shares or Additional Preferred Shares
thereafter, and (B) Cal Dive shall no longer be permitted to pay
dividends by the issuance of Common Stock (an "Issuance Blockage").
(ii) The "Minimum Price" shall initially equal $7.3461. Upon the
payment of dividends in, or the conversion or redemption of any
Preferred Shares or Additional Preferred Shares for, Common Stock,
the Minimum Price shall be reset to equal:
$55,000,0000 - FV - XR
----------------------
7,486,907 - DS - CS
Where:
FV= the aggregate face value of all Preferred Shares and
Additional Preferred Shares that have been converted or
redeemed for Common Stock;
XR= one thousand dollars ($1,000) times the number of
Additional Preferred Shares that had been potentially
issuable under expired and unexercised Xxxxxxxx Rights;
DS= the aggregate number of shares of Common Stock issued in
payment of dividends to and including such date; and
CS= the aggregate number of shares of Common Stock issued
upon conversion or redemption of Preferred Shares or
Additional Preferred Shares to and including such date.
(c) The aggregate number of shares of Common Stock issued, as of a
particular date, upon conversion or redemption of, or as dividends paid on
the Series A Preferred Shares owned by Xxxxxxxx and issuable pursuant to
this Agreement shall not exceed the Maximum Number as of that date. The
"Maximum Number" shall initially equal three million, five hundred
fifty-eight thousand, sixty (3,558,060) and may be increased upon
expiration of a 65-day notice period (the "Notice Period") after Xxxxxxxx
delivers a notice (a "65 Day Notice") to Cal Dive designating a greater
Maximum Number. A 65 Day Notice may be given at any time. From time to
time following the
13
Notice Period, Common Stock may be issued to Xxxxxxxx for any quantity of
Common Stock, such that the aggregate number of shares of Common Stock
issued hereunder is less than or equal to the Maximum Number.
7. Representations and Warranties of Xxxxxxxx. Xxxxxxxx hereby represents
and warrants to Cal Dive on each Closing Date:
(a) Xxxxxxxx has been duly incorporated and is validly existing under
the laws of Bermuda.
(b) The execution, delivery and performance of this Agreement by
Xxxxxxxx have been duly authorized by all requisite corporate action and
no further consent or authorization of Xxxxxxxx, its Board of Directors or
its shareholders is required. This Agreement has been duly executed and
delivered by Xxxxxxxx and, when duly authorized, executed and delivered by
Cal Dive, will be a valid and binding agreement enforceable against
Xxxxxxxx in accordance with its terms, subject to bankruptcy, insolvency,
reorganization, moratorium and similar laws of general applicability
relating to or affecting creditors' rights generally and to general
principles of equity.
(c) Xxxxxxxx understands that no United States federal or state
agency has passed on, reviewed or made any recommendation or endorsement
of the Investment Securities.
(d) Xxxxxxxx is an "accredited investor" as such term is defined in
Regulation D promulgated under the Securities Act.
(e) Xxxxxxxx is purchasing the Investment Securities for its own
account for investment only and not with a view to, or for resale in
connection with, the public sale or distribution thereof in the United
States, except pursuant to sales registered under the Securities Act or an
exemption therefrom.
(f) Xxxxxxxx understands that the Investment Securities are being or
will be offered and sold to it in reliance on specific exemptions from the
registration requirements of United States federal and state securities
laws and that Cal Dive is relying on the truth and accuracy of, and
Xxxxxxxx'x compliance with, the representations, warranties, agreements,
acknowledgments and understandings of Xxxxxxxx set forth herein in order
to determine the availability of such exemptions and the eligibility of
Xxxxxxxx to acquire the Investment Securities.
8. Future Equity Issuances. If, within twenty (20) Business Days following
the Initial Closing Date, there is (i) a public disclosure of Cal Dive's
intention or agreement to engage in, or (ii) a consummation of, any sale or
issuance to any Person or Persons (other than Xxxxxxxx or its affiliates) of
any shares of, or securities convertible into, exercisable or exchangeable for,
or whose value is derived in whole or in part from, any shares of any class of
Cal Dive's capital stock, then Cal Dive shall promptly notify Xxxxxxxx of such
disclosure or such consummation, which notice shall include a copy of such
disclosure or the terms and date of such consummation (the "Equity Issuance
Notice"). After the date of such disclosure or such consummation, Xxxxxxxx
14
shall have the right, at its sole discretion, to deliver a notice to Cal Dive
(a "Price Adjustment Notice") no later than five (5) Business Days after and
excluding the date the Equity Issuance Notice is delivered; provided, however,
if the closing of such transaction occurs at a later date, Xxxxxxxx shall have
the right, at its sole discretion, to deliver a new Price Adjustment Notice or
replace an existing Price Adjustment Notice no later than five (5) Business
Days after such closing date. If Xxxxxxxx delivers a Price Adjustment Notice to
Cal Dive, then (x) the Conversion Price (as defined in the Certificate of
Rights and Preferences) shall be reset to equal one hundred twenty-five percent
(125%) of the Daily Market Price (as defined therein) and (y) the Xxxxxxxx
Rights Trigger Price shall adjust to equal one hundred percent (100%) of the
Daily Market Price, in each case calculated as of the Business Day immediately
preceding the date of delivery of such Price Adjustment Notice.
9. Covenants of Cal Dive. Cal Dive covenants and agrees with Xxxxxxxx as
follows:
(a) For so long as Xxxxxxxx owns or has the right to purchase any
Investment Securities, and for a period of one (1) year thereafter, Cal
Dive will (i) maintain the eligibility of the Common Stock for listing on
the Nasdaq NMS; (ii) regain the eligibility of the Common Stock for
listing or quotation on all markets and exchanges including the Nasdaq NMS
in the event that the Common Stock is delisted by the Nasdaq NMS or any
other applicable market or exchange; and (iii) cause the representations
and warranties contained in Section 4 to be and remain true and correct.
(b) If a Restatement (as defined in the Certificate of Rights and
Preferences and Subsequent Certificates of Rights and Preferences) occurs,
Cal Dive shall deliver to Xxxxxxxx a Restatement Notice (as defined in the
Certificate of Rights and Preferences and Subsequent Certificates of
Rights and Preferences) within three (3) Business Days of such Restatement
and the Xxxxxxxx Rights Trigger Price shall adjust to equal the lower of
(i) the Xxxxxxxx Rights Trigger Price immediately before such Restatement
and (ii) the Daily Market Price (as defined in the Certificate of Rights
and Preferences) on the Business Day immediately preceding the date of
delivery of the Restatement Adjustment Notice (as defined in the
Certificate of Rights and Preferences and Subsequent Certificates of
Rights and Preferences).
(c) Cal Dive will provide Xxxxxxxx with a reasonable opportunity,
which shall not be less than two (2) full Business Days, to review and
comment on any public disclosure by Cal Dive of information regarding this
Agreement and the transactions contemplated hereby, before such public
disclosure.
(d) Cal Dive will make all filings required by law with respect to
the transactions contemplated hereby.
(e) Cal Dive will comply with the terms and conditions of the Series
A Preferred Shares as set forth in the Certificate of Rights and
Preferences and Subsequent Certificates of Rights and Preferences, and
will not amend the Certificate of Rights and
15
Preferences or Subsequent Certificates of Rights and Preferences without
the required consent of the holders of Series A Preferred Shares.
(f) For so long as Xxxxxxxx holds any Investment Securities, prior to
the filing of each of its quarterly reports on Form 10-Q with the SEC, Cal
Dive shall deliver to Xxxxxxxx a review report relating to the final
consolidated unaudited financial statements contained therein, prepared by
Ernst & Young LLP, or another nationally recognized accounting firm in
accordance with Statement on Auditing Standards No. 71.
(g) Cal Dive shall use its commercially reasonable efforts to cause
the Common Shares to be eligible for book-entry transfer through The
Depository Trust Company (or any successor thereto) as soon as practicable
after the date of this Agreement and thereafter to use its commercially
reasonable efforts to maintain such eligibility.
(h) Cal Dive shall at all times reserve for issuance such number of
its shares of Common Stock as shall from time to time be sufficient to
effect the conversion of all such Series A Preferred Shares and to satisfy
its delivery obligation upon such conversion, to effect the redemption of
the Series A Preferred Shares and to satisfy its delivery obligation with
respect to dividends.
(i) Cal Dive shall, (i) when the number of shares of Common Stock
outstanding is two hundred and fifty thousand (250,000) shares greater
than the number of shares of Common Stock outstanding as designated in the
previous Increase Notice (as hereinafter defined), or (ii) in the event
that Cal Dive has not delivered an Increase Notice, when the number of
shares of Common Stock outstanding is two hundred and fifty thousand
(250,000) shares greater than the number of shares of Common Stock
specified in Section 4(l), deliver a notice (an "Increase Notice") stating
(x) the increase, if any, in the aggregate number of shares of Common
Stock outstanding as of the last day of the preceding month over the
number outstanding as of the last day of the month of the preceding
Increase Notice, or (y) in the event that Cal Dive has not delivered a
prior Increase Notice, the increase, if any, in the aggregate number of
shares of Common Stock outstanding as of the last day of the preceding
month over number of shares outstanding specified in Section 4(l). Unless
expressly waived by Xxxxxxxx, Xxx Dive shall deliver an Increase Notice to
Xxxxxxxx on or before the tenth (10th) day of any calendar month for which
an Increase Notice is required to be delivered pursuant to this
sub-section.
(j) Cal Dive shall, within one (1) Business Day after and excluding
each Closing Date, publicly distribute a press release disclosing the
material terms of such Initial Closing or Subsequent Closing and shall,
within three (3) Business Days after and excluding each Closing Date file
a report with the SEC on Form 8-K with respect to the same.
(k) As soon as practicable after filing with the SEC, Cal Dive shall
furnish to Xxxxxxxx (i) a true, correct and complete copy of a report of
Ernst & Young LLP together with accompanying consolidated financial
statements and schedules of Cal Dive at December 31, 2002 and the results
of Cal Dive's operations and cash flows for
16
the one (1) year period ended December 31, 2002, certified by Ernst &
Young LLP, and (ii) the written consent of Ernst & Young LLP to furnishing
such report as described in clause (i) above.
10. Change of Control. (B) If Cal Dive is a party to any transaction which
results in a Change of Control, Xxxxxxxx and its assigns shall have the rights
set forth in the Certificate of Rights and Preferences and Subsequent
Certificates of Rights and Preferences regarding Changes of Control in addition
to the rights contained in this Agreement. Cal Dive agrees that it will not
enter into an agreement with an Acquiring Person resulting in a Change of
Control unless such agreement expressly obligates the Acquiring Person to
assume all of Cal Dive's obligations under this Agreement, the Certificate of
Rights and Preferences and the Subsequent Certificates of Rights and
Preferences including, but not limited to, the dividend, liquidation,
conversion, redemption, voting and other provisions regarding the Series A
Preferred Shares and the Xxxxxxxx Rights contained herein and therein. Without
limiting the foregoing, all unexercised and unexpired Xxxxxxxx Rights shall
automatically be converted into equivalent rights with respect to the Acquiring
Person including, but not limited to, the right to receive the equivalent of
the Additional Preferred Shares issuable upon the exercise of such rights and
to receive the consideration for such Additional Preferred Shares set forth in
Section 6(F) of the Subsequent Certificate of Rights and Preferences governing
such series of Additional Preferred Shares.
(C) The Xxxxxxxx Rights shall become exercisable immediately on and after the
date a public announcement is made of Cal Dive's or any other Person's
intention or agreement to engage in a transaction or series of transactions
that may result in a Change of Control.
(D) On or before the date an agreement is entered into with an Acquiring Person
resulting in a Change of Control, Cal Dive shall deliver to Xxxxxxxx written
notice that the Acquirer has assumed such obligations. Cal Dive shall provide
Xxxxxxxx with written notice of any proposed transaction resulting in a Change
of Control as soon as the existence of such proposed transaction is made public
by any person. Thereafter, Cal Dive shall notify Xxxxxxxx promptly of any
material developments with respect to such transaction, including advance
notice at least ten (10) Business Days before the date such transaction is
expected to become effective.
(E) "Change of Control" means (a) acquisition of the Company by means of merger
or other form of corporate reorganization in which outstanding shares of the
Company are exchanged for securities or other consideration issued, or caused
to be issued, by the Acquiring Person (as hereinafter defined) or its Parent,
Subsidiary or affiliate, other than a restructuring by the Company where
outstanding shares of the Company are exchanged for shares of the Acquiring
Person on a one-for-one basis and, immediately following the exchange, former
shareholders of the Company own all of the outstanding shares of the Acquiring
Person on the same pro rata basis as prior to the exchange, (b) a sale of all
or substantially all of the assets of the Company (on a consolidated basis) in
a single transaction or series of related transactions, (c) any other
transaction or series of related transactions by the Company in which the power
to cast the majority of the eligible votes at a meeting of the Company's
stockholders at which directors are elected is transferred to a single entity
17
or group acting in concert, or (d) a capital reorganization or reclassification
of the Common Stock or Other Securities (as defined in the Certificate of
Rights and Preferences and Subsequent Certificates of Rights and Preferences)
(other than a reorganization or reclassification in which the Common Stock or
Other Securities are not converted into or exchanged for cash or other
property, and, immediately after consummation of such transaction, the
stockholders of the Company immediately prior to such transaction own the
Common Stock, Other Securities or other voting stock of the Company in
substantially the same proportions relative to each other as such stockholders
owned immediately prior to such transaction). Notwithstanding anything
contained herein to the contrary, the change in the state of incorporation of
the Company shall not in and of itself constitute a Change of Control.
(F) "Acquiring Person" means, in connection with any Change of Control, (a) the
continuing or surviving corporation of a consolidation or merger with the
Company (if other than the Company), (b) the transferee of all or substantially
all of the properties or assets of the Company, (c) the corporation
consolidating with or merging into the Company in a consolidation or merger in
connection with which the Common Stock is changed into or exchanged for stock
or other securities of any other Person or cash or any other property, (d) the
entity or group acting in concert acquiring or possessing the power to cast the
majority of the eligible votes at a meeting of the Company's shareholders at
which directors are elected, or, (e) in the case of a capital reorganization or
reclassification, the Company, or (f) at Xxxxxxxx'x election, any Person that
(i) controls the Acquiring Person directly or indirectly through one or more
intermediaries, (ii) is required to include the Acquiring Person in the
consolidated financial statements contained in such Parent's Annual Report on
Form 10-K (if such Person is required to file such a report) or would be
required to so include the Acquiring Person in such Person's consolidated
financial statements if they were prepared in accordance with U.S. GAAP and
(iii) is not itself included in the consolidated financial statements of any
other Person (other than its consolidated subsidiaries).
11. Covenants of Xxxxxxxx. Xxxxxxxx hereby covenants and agrees with Cal
Dive that:
(a) Neither Xxxxxxxx, nor any of its affiliates, will at any time
offer or sell any Investment Securities other than pursuant to an
effective registration statement under the Securities Act or pursuant to
an available exemption therefrom.
(b) Neither Xxxxxxxx, nor any of its affiliates, shall engage in
"short sales" (as such term is defined by Exchange Act Rule 3b-3) of
Common Stock, it being understood that nothing in this Agreement shall
prohibit Xxxxxxxx or any of its affiliates from engaging in any
transaction in any stock index, portfolio or derivative of which Common
Stock is a component. The provisions of this Section 11(b) shall not be
deemed to extend to any non-affiliated third party, including but not
limited to, any assignee, pledgee, transferee or derivative or financing
counterparty of Xxxxxxxx or any of its affiliates.
18
12. Legend. Subject to Section 5, Xxxxxxxx understands that the
certificates or other instruments representing the Investment Securities shall
bear a restrictive legend composed of exactly the following words (and a stop
transfer order may be placed against transfer of such certificates or other
instruments):
THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE
"SECURITIES ACT"), OR APPLICABLE STATE SECURITIES LAWS. THE SECURITIES
HAVE BEEN ACQUIRED FOR INVESTMENT AND MAY NOT BE OFFERED FOR SALE,
SOLD, TRANSFERRED OR ASSIGNED UNLESS (1) THERE IS AN EFFECTIVE
REGISTRATION STATEMENT UNDER SUCH ACT COVERING SUCH SECURITIES, OR (2)
THE SALE IS MADE IN ACCORDANCE WITH RULE 144 OR ANOTHER APPLICABLE
EXEMPTION UNDER THE SECURITIES ACT. THE RELATIVE RIGHTS AND
PREFERENCES OF SERIES A-1 CUMULATIVE PREFERRED STOCK OF THE COMPANY
ARE DESCRIBED IN A CERTIFICATE THEREOF FILED WITH THE SECRETARY OF
STATE OF THE STATE OF MINNESOTA, A COPY OF WHICH IS AVAILABLE FROM THE
COMPANY BY CONTACTING THE GENERAL COUNSEL OF THE COMPANY.
The legend set forth above shall be removed and Cal Dive shall issue a
certificate without such legend to any holder of Investment Securities if,
unless otherwise required by state securities laws, such shares are sold
pursuant to an effective Registration Statement under the Securities Act, Rule
144 or another applicable exemption from registration.
13. Conditions Precedent to Xxxxxxxx'x Obligations. The obligations of
Xxxxxxxx hereunder are subject to the performance by Cal Dive of its
obligations hereunder and to the satisfaction of the following additional
conditions precedent, unless expressly waived in writing by Xxxxxxxx:
(a) On each Closing Date, (i) the representations and warranties made
by Cal Dive in this Agreement shall be true and correct, except those
representations and warranties which address matters only as of a
particular date, which shall be true and correct as of such date; (ii) Cal
Dive shall have complied fully with all of the covenants and agreements in
this Agreement; and (iii) Xxxxxxxx shall have received (A) on the Initial
Closing Date a certificate of the Chief Executive Officer and the Chief
Financial Officer of Cal Dive dated such date and to such effect and (B)
on each Subsequent Closing Date a certificate of the Chief Executive
Officer and the Chief Financial Officer of Cal Dive dated such date and to
such effect.
(b) On each Closing Date, Cal Dive shall have delivered to Xxxxxxxx
an opinion of Fulbright & Xxxxxxxx L.L.P. reasonably satisfactory to
Xxxxxxxx, dated the date of delivery, confirming in substance the matters
regarding enforceability covered in paragraph (c), and matters covered in
the first grammatical sentence of paragraph (k), of Section 4 hereof. On
each Closing Date, Cal Dive shall have delivered to Xxxxxxxx an opinion of
Xxxxxx X. Xxxxxx, Special Counsel to Cal Dive, reasonably satisfactory to
Xxxxxxxx, dated the date of delivery, confirming in substance the matters
covered in paragraphs (a), (b), (c) with respect to matters other than
enforceability, (d) to the extent
19
not opined on by the General Counsel of Cal Dive, (e), (g) and (l), of
Section 4 hereof. On each Closing Date, Cal Dive shall have delivered to
Xxxxxxxx an opinion of Xxxxx Xxxxx Xxxxxx, III, General Counsel of Cal
Dive, reasonably satisfactory to Xxxxxxxx, dated the date of delivery,
confirming in substance the matters covered in paragraphs (d) in part, and
(f) of Section 4 hereof.
(c) On each Subsequent Closing Date, Xxxxxxxx shall receive a report
of Ernst & Young LLP, or another nationally-recognized accounting firm,
together with the accompanying consolidated financial statement and
schedules of Cal Dive and results of Cal Dive's operations and cash flows,
as such report appears in the most recent Form 10-K filed by Cal Dive with
the SEC.
(d) On the Initial Closing Date, the Registrable Number shall be duly
listed and admitted for trading on the Nasdaq NMS, subject to notice of
issuance
(e) On or before the Initial Closing Date, Cal Dive shall have filed
with the Minnesota Secretary of State the Certificate of Rights and
Preferences. On or before each Subsequent Closing Date, Cal Dive shall
have filed with the Minnesota Secretary of State a Subsequent Certificate
of Rights and Preferences, with terms and conditions of the applicable
series of Additional Preferred Shares as required by this Agreement.
14. Conditions Precedent to Cal Dive's Obligations. The obligations of Cal
Dive hereunder are subject to the performance by Xxxxxxxx of its obligations
hereunder and to the satisfaction (unless expressly waived in writing by Cal
Dive) of the additional conditions precedent that, on each Closing Date: (i)
the representations and warranties made by Xxxxxxxx in this Agreement shall be
true and correct; (ii) Xxxxxxxx shall have complied fully with all the
covenants and agreements in this Agreement; and (iii) Cal Dive shall have
received on each such date a certificate of an appropriate officer of Xxxxxxxx
dated such date and to such effect.
15. Fees and Expenses. Each of Xxxxxxxx and Cal Dive agrees to pay its own
expenses incident to the performance of its obligations hereunder, including,
but not limited to the fees, expenses and disbursements of such party's
counsel, except as is otherwise expressly provided in this Agreement.
16. Non-Performance.
(a) If Cal Dive, at any time, shall fail to deliver the Investment
Securities to Xxxxxxxx required to be delivered pursuant to this
Agreement, in accordance with the terms and conditions of this Agreement,
the Certificate of Rights and Preferences and the Subsequent Certificates
of Rights and Preferences, for any reason other than the failure of any
condition precedent to Cal Dive's obligations hereunder or the failure by
Xxxxxxxx to comply with its obligations hereunder, then Cal Dive shall
(without limitation to Xxxxxxxx'x other remedies at law or in equity):
(i) indemnify and hold Xxxxxxxx harmless against any loss, claim
or damage (including without limitation, incidental and consequential
damages) arising from or as a result of such failure by Cal Dive; and
20
(ii) reimburse Xxxxxxxx for all of its reasonable out-of-pocket
expenses, including fees and disbursements of its counsel, incurred
by Xxxxxxxx in connection with this Agreement and the transactions
contemplated herein and therein.
17. Indemnification.
(a) Indemnification of Xxxxxxxx. Cal Dive hereby agrees to indemnify
Xxxxxxxx and each of its officers, directors, employees, consultants,
agents, attorneys, accountants and affiliates and each person that
controls (within the meaning of Section 20 of the Exchange Act) any of the
foregoing persons (each a "Xxxxxxxx Indemnified Party") against any claim,
demand, action, liability, damages, loss, cost or expense (including,
without limitation, reasonable legal fees and expenses incurred by such
Xxxxxxxx Indemnified Party in investigating or defending any such
proceeding) (all of the foregoing, including associated costs and expenses
being referred to herein as a "Proceeding"), that it may incur in
connection with any of the transactions contemplated hereby arising out of
or based upon:
(i) any untrue or alleged untrue statement of a material fact in
a SEC Filing by Cal Dive or any of its affiliates or any person
acting on its or their behalf or omission or alleged omission to
state therein any material fact necessary in order to make the
statements, in the light of the circumstances under which they were
made, not misleading by Cal Dive or any of its affiliates or any
person acting on its or their behalf;
(ii) any of the representations or warranties made by Cal Dive
herein being untrue or incorrect at the time such representation or
warranty was made; and
(iii) any breach or non-performance by Cal Dive of any of its
covenants, agreements or obligations under this Agreement, the
Certificate of Rights and Preferences and the Subsequent Certificates
of Rights and Preferences;
provided, however, that the foregoing indemnity shall not apply to any
Proceeding to the extent that it arises out of, or is based upon, the gross
negligence or willful misconduct of Xxxxxxxx in connection therewith.
(b) Indemnification of Cal Dive. Xxxxxxxx hereby agrees to indemnify
Cal Dive and each of its officers, directors, employees, consultants,
agents, attorneys, accountants and affiliates and each person that
controls (within the meaning of Section 20 of the Exchange Act) any of the
foregoing persons against any Proceeding, that it may incur in connection
with any of the transactions contemplated hereby arising out of or based
upon:
(i) any untrue or alleged untrue statement of a material fact
included in an SEC filing by Cal Dive with the express written
consent of Xxxxxxxx therefor by Xxxxxxxx or any of its affiliates or
any person acting on its or their
21
behalf or omission or alleged omission to state any such material
fact necessary in order to make the statements, in the light of the
circumstances under which they were made, not misleading by Xxxxxxxx
or any of its affiliates or any person acting on its or their behalf;
(ii) any of the representations or warranties made by Xxxxxxxx
herein being untrue or incorrect at the time such representation or
warranty was made; and
(iii) any breach or non-performance by Xxxxxxxx of any of its
covenants, agreements or obligations under this Agreement;
provided, however, that the foregoing indemnity shall not apply to any
Proceeding to the extent that it arises out of, or is based upon, the gross
negligence or willful misconduct of Cal Dive in connection therewith.
(c) Conduct of Claims.
(i) Whenever a claim for indemnification shall arise under this
Section 17, the party seeking indemnification (the "Indemnified
Party"), shall notify the party from whom such indemnification is
sought (the "Indemnifying Party") in writing of the Proceeding and
the facts constituting the basis for such claim in reasonable detail;
(ii) Such Indemnifying Party shall have the right to retain the
counsel of its choice in connection with such Proceeding and to
participate at its own expense in the defense of any such Proceeding;
provided, however, that counsel to the Indemnifying Party
shall not (except with the consent of the relevant Indemnified Party)
also be counsel to such Indemnified Party. In no event shall the
Indemnifying Party be liable for fees and expenses of more than one
counsel (in addition to any local counsel) separate from its own
counsel for all Indemnified Parties in connection with any one action
or separate but similar or related actions in the same jurisdiction
arising out of the same general allegations or circumstances; and
(iii) No Indemnifying Party shall, without the prior written
consent of the Indemnified Parties (which consent shall not be
unreasonably withheld), settle or compromise or consent to the entry
of any judgment with respect to any litigation, or any investigation
or proceeding by any governmental agency or body, commenced or
threatened, or any claim whatsoever in respect of which
indemnification could be sought under this Section 17 unless such
settlement, compromise or consent (A) includes an unconditional
release of each Indemnified Party from all liability arising out of
such litigation, investigation, proceeding or claim and (B) does not
include a statement as to or an admission of fault, culpability or a
failure to act by or on behalf of any Indemnified Party.
22
18. Survival of the Representations, Warranties, etc. The respective
representations, warranties, and agreements made herein by or on behalf of the
parties hereto shall remain in full force and effect, regardless of any
investigation made by or on behalf of the other party to this Agreement or any
officer, director or employee of, or person controlling or under common control
with, such party and will survive delivery of and payment for any Investment
Securities issuable hereunder.
19. Notices. All communications hereunder shall be in writing and
delivered as set forth below.
(a) If sent to Xxxxxxxx, all communications will be deemed delivered:
if delivered by hand, on the day received by Xxxxxxxx; if sent by
reputable overnight courier, on the next Business Day; and if transmitted
by facsimile to Xxxxxxxx, on the date transmitted (provided such facsimile
is later confirmed), in each case to the following address (unless
otherwise notified in writing of a substitute address):
Xxxxxxxx International, Ltd.
c/o A. S. & K. Services Ltd.
Xxxxx Xxxxx, 00 Xxxxx Xxxxxx
Xxxxxxxx XX XX
Bermuda
Attention: Xxxxxxxx Xxxxxx, Corporate Administrator
Telephone: 000-000-0000
Facsimile: 000-000-0000
with a copy to:
Xxxxxxxx Asset Management, Inc.
00 Xxxx 00xx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxx Xxxxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
with a copy to (which copy shall not constitute notice):
Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP
0000 Xxx Xxxx Xxxxxx, X.X.
Xxxxxxxxxx, X.X. 00000
Attention: Xxxxxxx X. Xxxxxxxx, Esq.
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
(b) If sent to Cal Dive, all communications will be deemed delivered:
if delivered by hand, on the day received by Cal Dive; if sent by
reputable overnight
23
courier, on the next Business Day; and if transmitted by facsimile to Cal
Dive, on the date transmitted (provided such facsimile is later
confirmed), in each case to the following address (unless otherwise
notified in writing of a substitute address):
Cal Dive International, Inc.
000 X. Xxx Xxxxxxx Xxxxxxx X., Xxxxx 000
Xxxxxxx, Xxxxx 00000
Attention: A. Xxxx Xxxxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
with a copy to:
Cal Dive International, Inc.
000 X. Xxx Xxxxxxx Xxxxxxx X., Xxxxx 000
Xxxxxxx, Xxxxx 00000
Attention: Xxxxx Xxxxx Connor, III, Esq.
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
with a copy to (which copy shall not constitute notice):
Fulbright & Xxxxxxxx L.L.P.
0000 XxXxxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxx 00000
Attention: Xxxxxx X. Xxxxxx, Esq.
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
To the extent that any funds shall be delivered to Cal Dive by wire transfer,
unless otherwise instructed by Cal Dive, such funds should be delivered in
accordance with the wire instructions set forth in Annex BB.
20. Miscellaneous.
(a) The parties may execute and deliver this Agreement as a single
document or in any number of counterparts, manually, by facsimile or by
other electronic means, including contemporaneous xerographic or
electronic reproduction by each party's respective attorneys. Each
counterpart shall be an original, but a single document or all
counterparts together shall constitute one instrument that shall be the
agreement.
(b) This Agreement will inure to the benefit of and be binding upon
the parties hereto, their respective successors and assigns and, with
respect to Section 17 hereof, will inure to the benefit of their
respective officers, directors, employees, consultants, agents, attorneys,
accountants and affiliates and each person that controls (within the
meaning of Section 20 of the Exchange Act) any of the foregoing persons,
24
and no other person will have any right or obligation hereunder. Cal Dive
may not assign this Agreement. Notwithstanding anything to the contrary in
this Agreement, Xxxxxxxx may assign, pledge, hypothecate or transfer any
of the rights and associated obligations contemplated by this Agreement
(including, but not limited to, the Investment Securities), in whole or in
part, at its sole discretion (including, but not limited to, assignments,
pledges, hypothecations and transfers in connection with financing,
derivative or hedging transactions with respect to this Agreement and the
Investment Securities), provided, that, any such assignment, pledge,
hypothecation or transfer must comply with applicable federal and state
securities laws. No person acquiring Common Stock from Xxxxxxxx pursuant
to a public market purchase will thereby obtain any of the rights
contained in this Agreement. This Agreement constitutes the entire
agreement and supersedes all prior agreements and understandings, both
written and oral, between the parties hereto with respect to the subject
matter of this Agreement. Except as provided in this Section 18(b), this
Agreement is not intended to confer upon any person other than the parties
hereto any rights or remedies hereunder.
(c) This Agreement shall be governed by, and construed in accordance
with, the internal laws of the State of New York, and each of the parties
hereto hereby submits to the non-exclusive jurisdiction of any state or
federal court in the Southern District of New York and any court hearing
any appeal therefrom, over any suit, action or proceeding against it
arising out of or based upon this Agreement (a "Related Proceeding"). Each
of the parties hereto hereby waives any objection to any Related
Proceeding in such courts whether on the grounds of venue, residence or
domicile or on the ground that the Related Proceeding has been brought in
an inconvenient forum.
(d) Each party represents and acknowledges that, in the negotiation
and drafting of this Agreement and the other instruments and documents
required or contemplated hereby, it has been represented by and relied
upon the advice of counsel of its choice. Each party hereby affirms that
its counsel has had a substantial role in the drafting and negotiation of
this Agreement and such other instruments and documents. Therefore, each
party agrees that no rule of construction to the effect that any
ambiguities are to be resolved against the drafter shall be employed in
the interpretation of this Agreement and such other instruments and
documents.
(e) Without prejudice to other rights or remedies hereunder
(including any specified interest rate), and except as otherwise expressly
set forth herein, interest shall be due on any amount that is due pursuant
to this Agreement and has not been paid when due, calculated for the
period from and including the due date to but excluding the date on which
such amount is paid at the prime rate of U.S. money center banks as
published in The Wall Street Journal (or if The Wall Street Journal does
not exist or publish such information, then the average of the prime rates
of three U.S. money center banks agreed to by the parties) plus two
percent (2%).
(f) Xxxxxxxx and Cal Dive stipulate that the remedies at law of the
parties hereto in the event of any default or threatened default by either
party in the performance of or compliance with any of the terms of this
Agreement, the Certificate of Rights and Preferences and the Subsequent
Certificates of Rights and Preferences are not
25
and will not be adequate and that, to the fullest extent permitted by law,
such terms may be specifically enforced by a decree for the specific
performance of any agreement contained herein or by an injunction against
a violation of any of the terms hereof or otherwise.
(g) Any and all remedies set forth in this Agreement, the Certificate
of Rights and Preferences and Subsequent Certificates of Rights and
Preferences: (i) shall be in addition to any and all other remedies
Xxxxxxxx or Cal Dive may have at law or in equity, (ii) shall be
cumulative, and (iii) may be pursued successively or concurrently as each
of Xxxxxxxx and Cal Dive may elect. The exercise of any remedy by Xxxxxxxx
or Cal Dive shall not be deemed an election of remedies or preclude
Xxxxxxxx or Cal Dive, respectively, from exercising any other remedies in
the future.
(h) Cal Dive agrees that the parties have negotiated in good faith
and at arms' length concerning the transactions contemplated herein, and
that Xxxxxxxx would not have agreed to the terms of this Agreement without
each and every of the terms, conditions, protections and remedies provided
herein and the Certificate of Rights and Preferences. Except as
specifically provided otherwise in this Agreement, the Certificate of
Rights and Preferences and the Subsequent Certificates of Rights and
Preferences, Cal Dive's obligations to indemnify and hold Xxxxxxxx
harmless in accordance with Section 18 of this Agreement are obligations
of Cal Dive that Cal Dive promises to pay to Xxxxxxxx when and if they
become due. Cal Dive shall record any such obligations on its books and
records in accordance with U.S. generally accepted accounting principles.
(i) This Agreement may be amended, modified or supplemented in any
and all respects, but only by a written instrument signed by Xxxxxxxx and
Cal Dive expressly stating that such instrument is intended to amend,
modify or supplement this Agreement.
(j) Each of the parties will cooperate with the others and use its
best efforts to prepare all necessary documentation, to effect all
necessary filings, and to obtain all necessary permits, consents,
approvals and authorizations of all governmental bodies and other
third-parties necessary to consummate the transactions contemplated by
this Agreement.
(k) For purposes of this Agreement, except as otherwise expressly
provided or unless the context otherwise requires: (i) the terms defined
in this Agreement have the meanings assigned to them in this Agreement and
include the plural as well as the singular, and the use of any gender
herein shall be deemed to include the other gender and neuter gender of
such term; (ii) accounting terms not otherwise defined herein have the
meanings assigned to them in accordance with U.S. generally accepted
accounting principles; (iii) references herein to "Articles", "Sections",
"Subsections", "Paragraphs" and other subdivisions without reference to a
document are to designated Articles, Sections, Subsections, Paragraphs and
other subdivisions of this Agreement, unless the context shall otherwise
require; (iv) a reference to a Subsection without further reference to a
Section is a reference to such Subsection as contained in the same Section
in which the reference appears, and this rule shall also apply to
Paragraphs and other subdivisions;
26
(v) the words "herein", "hereof", "hereunder" and other words of similar
import refer to this Agreement as a whole and not to any particular
provision; (vi) the term "include" or "including" shall mean without
limitation; (vii) the table of contents to this Agreement and all section
titles or captions contained in this Agreement or in any Schedule or Annex
hereto or referred to herein are for convenience only and shall not be
deemed a part of this Agreement and shall not affect the meaning or
interpretation of this Agreement; (viii) any agreement, instrument or
statute defined or referred to herein means such agreement, instrument or
statute as from time to time amended, modified or supplemented, including
(in the case of agreements or instruments) by waiver or consent and (in
the case of statutes) by succession of comparable successor statues and
references to all attachments thereto and instruments incorporated
therein; and (ix) references to a person are also to its permitted
successors and assigns and, in the case of an individual, to his or her
heirs and estate, as applicable.
(l) If any term or other provision of this Agreement is invalid,
illegal or incapable of being enforced by any rule of law or public policy
all other conditions and provisions of this Agreement shall nevertheless
remain in full force and effect. If the final judgment of a court of
competent jurisdiction or other authority declares that any term or
provision hereof is invalid, void or unenforceable, the parties agree that
the court making such determination shall have the power to reduce the
scope, duration, area or applicability of the term or provision, to delete
specific words or phrases, or to replace any invalid, void or
unenforceable term or provision with a term or provision that is valid and
enforceable and that comes closest to expressing the intention of the
invalid or unenforceable term or provision. Upon such determination that
any term or other provision is invalid, illegal or incapable of being
enforced, the parties hereto shall negotiate in good faith to modify this
Agreement so as to effect the original intent of the parties as closely as
possible in a mutually acceptable manner in order that the transactions
contemplated hereby be consummated as originally contemplated to the
fullest extent possible.
(m) Time shall be of the essence in this Agreement.
(n) All dollar ($) amounts set forth herein, in the Certificate of
Rights and Preferences and Subsequent Certificates of Rights and
Preferences refer to United States dollars. All payments hereunder and
thereunder will be made in lawful currency of the United States of
America.
(o) Notwithstanding anything herein to the contrary, all measurements
and references related to share prices and share numbers herein will be,
in each instance, appropriately adjusted for stock splits, recombinations,
stock dividends and the like.
[SIGNATURE PAGE FOLLOWS]
27
IN WITNESS WHEREOF, the parties hereto have duly executed
and delivered this First Amended and
Restated Agreement, all as of January 17, 2003.
CAL DIVE INTERNATIONAL, INC.
By: /s/ XXXXX XXXXX CONNOR, III
--------------------------------------------
Name: Xxxxx Xxxxx Xxxxxx, III
Title: Senior Vice President & General Counsel
XXXXXXXX INTERNATIONAL, LTD., by its duly
authorized investment advisor,
XXXXXXXX ASSET MANAGEMENT, INC.
By: /s/ XXXXX X. XXXXX
--------------------------------------------
Name: Xxxxx X. Xxxxx
Title: Deputy CEO and Counsel
By: /s/ XXXXXXXX X. XXXXXXXX
--------------------------------------------
Name: Xxxxxxxx X. Xxxxxxxx
Title: COO and Counsel
28
