REGISTRATION RIGHTS AGREEMENT
By and Between
XXXXXX, XXXXXX & COMPANY, L.P.
and
HVIDE MARINE INCORPORATED
Dated as of December 15, 1999
TABLE OF CONTENTS
THIS TABLE OF CONTENTS IS NOT PART OF THE AGREEMENT TO WHICH IT IS
ATTACHED BUT IS INSERTED FOR CONVENIENCE ONLY.
Page
No.
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1. REGISTRATIONS ..............................................................2
(a) SHELF REGISTRATION ................................................2
(b) REGISTRATION REQUESTS .............................................3
(c) LIMITATIONS ON REQUESTED REGISTRATIONS ............................5
(d) REGISTRATION STATEMENT FORM .....................................5
(e) REGISTRATION EXPENSES ...........................................6
(f) PRIORITY IN CUTBACK REGISTRATIONS ...............................6
(g) PREEMPTION OF REQUESTED REGISTRATION ............................6
2. PIGGYBACK REGISTRATIONS ....................................................6
(a) RIGHT TO INCLUDE REGISTRABLE SECURITIES ...........................6
(b) REGISTRATION EXPENSES ...........................................7
(c) PRIORITY IN CUTBACK REGISTRATIONS ...............................7
3. REGISTRATION PROCEDURES ....................................................8
4. UNDERWRITTEN OFFERINGS ....................................................12
(a) UNDERWRITTEN REQUESTED OFFERINGS .................................12
(b) UNDERWRITTEN PIGGYBACK OFFERINGS ...............................13
5. HOLDBACK AGREEMENTS .......................................................14
(a) BY THE HOLDERS OF REGISTRABLE SECURITIES .......................14
(b) BY THE COMPANY AND OTHER SECURITYHOLDERS .........................14
(c) EXCEPTION ......................................................14
6. INDEMNIFICATION ...........................................................15
(a) INDEMNIFICATION BY THE COMPANY .................................15
(b) INDEMNIFICATION BY THE HOLDERS .................................15
(c) NOTICES OF CLAIMS, ETC ..........................................16
(d) CONTRIBUTION ...................................................17
(e) OTHER INDEMNIFICATION ..........................................18
(f) INDEMNIFICATION PAYMENTS .......................................18
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7. COVENANT RELATING TO RULE 144 .............................................18
8. OTHER REGISTRATION RIGHTS .................................................18
(a) NO EXISTING AGREEMENTS ...........................................18
(b) FUTURE AGREEMENTS ................................................19
(c) BEST REGISTRATION RIGHTS. .................................................19
9. DEFINITIONS ...............................................................19
10. MISCELLANEOUS ............................................................24
(a) NOTICES ........................................................24
(b) ENTIRE AGREEMENT .................................................25
(c) AMENDMENT ......................................................25
(d) WAIVER ...........................................................25
(e) CONSENTS AND WAIVERS BY HOLDERS OF REGISTRABLE SECURITIES ........25
(f) NO THIRD PARTY BENEFICIARY .......................................26
(g) SUCCESSORS AND ASSIGNS ...........................................26
(h) HEADINGS .........................................................26
(i) INVALID PROVISIONS .............................................26
(j) REMEDIES .........................................................26
(k) GOVERNING LAW ....................................................27
(l) COUNTERPARTS ....................................................27
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HVIDE MARINE INCORPORATED
REGISTRATION RIGHTS AGREEMENT
This REGISTRATION RIGHTS AGREEMENT dated as of December 15, 1999 is
made and entered into by and between Hvide Marine Incorporated, a Delaware
corporation (together with its predecessor and including its successors and
assigns, the "COMPANY") and Xxxxxx, Xxxxxx & Company, L.P., a Delaware limited
partnership, as an investment manager or advisor for certain discretionary
accounts (including its successors and assigns, the "INVESTOR") that were
holders or beneficial owners of the 8 3/8% Senior Notes due 2008 and the 6 1/2%
Trust Convertible Preferred Securities, issued by the Company and a subsidiary
of the Company, respectively, and that are (or are to be) holders or beneficial
owners of the Common Stock (as defined below). Capitalized terms not otherwise
defined herein have the meanings set forth in SECTION 9.
WHEREAS, on September 8, 1999, the Company filed a voluntary petition
for reorganization under Chapter 11 of title 11, 11 U.S.C. Sections 101 - 1330
(as amended, tHE "BANKRUPTCY CODE"), with the United States Bankruptcy Court for
the District of Delaware (the "BANKRUPTCY COURT"), commencing Chapter 11 Case
No. 99-3024 (PJW) (the "BANKRUPTCY CASE");
WHEREAS, on October 1, 1999, the Company filed that certain Plan of
Reorganization (as amended and supplemented from time to time, the "PLAN") in
the Bankruptcy Case;
WHEREAS, the Bankruptcy Court confirmed the Plan pursuant to the order
under section 1129 of the Bankruptcy Code, dated December 9, 1999 (the
"CONFIRMATION ORDER");
WHEREAS, pursuant to the Plan and the Confirmation Order, Investor will
receive, among other things, approximately six million two hundred eighty seven
thousand five hundred seventeen (6,287,517) shares of Common Stock (the
"SHARES") and Class A Warrants (as defined in the Plan) to purchase
approximately fifty seven thousand sixty five (57,065) additional shares of
Common Stock in exchange for $189,680,000 in aggregate principal amount of
8 3/8% Senior Notes due 2008 and 1,050,000 6 1/2% Trust Convertible Preferred
Securities on the Effective Date (as defined in the Plan) of the Plan;
WHEREAS, in connection with the Plan, the Company will issue 12 1/2%
Senior Secured Notes due 2007, Series A (the "SERIES A NOTES"), under an
Indenture dated as of December 15, 1999 by and among the Company, the Guarantors
and State Street Bank and Trust Company of Connecticut, N.A., as trustee (the
"INDENTURE")
WHEREAS, Investor will also acquire $27,777,000 in aggregate principal
amount at maturity of Series A Notes of the Company along with warrants to
purchase one hundred fifty six thousand seven hundred seventy seven (156,777)
additional shares of Common Stock (which warrants, together with the Class A
Warrants, are referred to herein as the "WARRANTS");
WHEREAS, in order to induce Investor to support the Plan, and as a
condition to the occurrence of the Effective Date of the Plan, the Plan requires
that the Company enter into this Agreement with Investor on or prior to the
Effective Date;
NOW, THEREFORE, in consideration of the mutual covenants and agreements
set forth in this Agreement, and for other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the parties hereto
agree as follows:
1. REGISTRATIONS.
(a) SHELF REGISTRATION.
(i) The Company shall comply with all the provisions
of SECTIONS 3(b) to 3(l) and shall use its best efforts to file as
promptly as practicable (but in no event more than 60 days after the
date hereof) with the Commission, and thereafter shall use its
reasonable best efforts to cause to be declared effective within 120
days after the date hereof, an Equity Shelf Registration Statement,
covering all of the Registrable Equity Securities, and relating to the
offer and sale of the Registrable Equity Securities, by the holders of
the Registrable Equity Securities from time to time in accordance with
the methods of distribution set forth in the Equity Shelf Registration
Statement (unless an Equity Shelf Registration Statement is then not
legally permitted under the applicable rules of the Commission or
otherwise, in which case the Company shall use its reasonable best
efforts to cause a Requested Registration with respect to the
Registrable Equity Securities to become effective).
(ii) The Company shall comply with all the provisions
of SECTIONS 3(b) and 3(l) and shall use its best efforts to file as
promptly as practicable (but in no event later than the earlier of 120
days after receiving written notice from the Investor that it has
acquired or purchased any Registrable Debt Securities and the close of
the Exchange Offer (as defined in the Indenture)), and thereafter shall
use its reasonable best efforts to cause to be declared effective
within 180 days after the date of receiving such notice, a Debt Shelf
Registration Statement, covering all of the Registrable Debt
Securities), and relating to the offer and sale of the Registrable Debt
Securities, by holders of the Registrable Debt Securities from time to
time in accordance with the methods of distribution set forth in the
Debt Shelf Registration Statement (unless a Debt Shelf Registration
Statement is then not legally permitted under the applicable rules of
the Commission or otherwise, in which case the Company shall use its
reasonable best efforts to cause a Requested Registration with respect
to the Registrable Debt Securities to become effective). At the option
of the Company and if permitted by the applicable rules of the
Commission, the Debt Shelf Registration Statement may be filed as a
post-effective amendment to the Equity Shelf Registration Statement and
may include the Registrable Equity Securities, in which case the
references in this Agreement to the Equity Shelf Registration Statement
shall thereafter be deemed to refer, without duplication, to the Debt
Shelf Registration Statement.
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(iii) The Company shall use its best efforts to keep
the applicable Shelf Registration Statement continuously effective in
order to permit any prospectus forming part thereof to be used by the
holders of the Registrable Securities covered thereby for a period
ending on the earlier of (A) the period that will terminate when all
the Registrable Securities covered by such Shelf Registration Statement
have been sold pursuant thereto and (B) the date on which such
Registrable Securities become eligible for resale without volume
restrictions pursuant to Rule 144 under the Securities Act (in any such
case, such period being called the "SHELF REGISTRATION EFFECTIVENESS
PERIOD"). The Company shall be deemed not to have used its best efforts
to keep the applicable Shelf Registration Statement effective during
the Shelf Registration Effectiveness Period if it voluntarily takes any
action that would result in the holders of the Registrable Securities
covered thereby not being able to offer and sell such Registrable
Securities during the Shelf Registration Effectiveness Period, unless
such action is required by applicable law.
(iv) Notwithstanding any other provisions hereof, the
Company will use its best efforts to ensure that (A) any Shelf
Registration Statement and any amendment thereto and any prospectus
forming part thereof and any supplement thereto complies in all
material respects with the Securities Act and the rules and regulations
of the Commission thereunder, (B) any Shelf Registration Statement and
any amendment thereto (in either case, other than with respect to
information included therein in reliance upon or in conformity with
information furnished in writing or confirmed in writing to the Company
by or on behalf of the holder of such Registrable Securities
specifically for use therein (the "INVESTOR'S INFORMATION")) does not
contain an untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary to make the
statements therein not misleading and (C) any prospectus forming part
of any Shelf Registration Statement, and any supplement to such
prospectus (in either case, other than with respect to Investor's
Information), does not include an untrue statement of a material fact
or omit to state a material fact necessary in order to make the
statements therein, in the light of the circumstances under which they
were made, not misleading.
(v) The Company will pay all Registration Expenses
incurred in connection with the Equity Shelf Registration Statement and
the Debt Shelf Registration Statement, if any.
(b) REGISTRATION REQUESTS.
(i) If the Company has failed to cause the Equity
Shelf Registration Statement to be declared effective within 120 days
after the date hereof or, if prior to such 120th day the Company shall
have effected a Public Offering, upon the written request of one or
more Requesting Holders requesting that the Company effect the
registration under the Securities Act of all or part of such Requesting
Holders' Registrable Equity Securities and specifying the number of
Registrable Equity Securities to be registered and the intended method
of disposition thereof, the Company will promptly, and in no event more
than five (5) Business Days after receipt of such request, give written
notice (a "NOTICE OF
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REQUESTED REGISTRATION") of such request to all other holders of
Registrable Equity Securities, and thereupon will use its reasonable
best efforts to effect the registration under the Securities Act of the
Registrable Equity Securities which the Company has been so requested
to register in writing within ten (10) Business Days after receiving
the Notice of Requested Registration by such Requesting Holder or
Holders, all to the extent requisite to permit the disposition (in
accordance with the intended methods thereof) of the Registrable Equity
Securities so to be registered. If requested by the holders of a
majority of the Registrable Equity Securities requested to be included
in any Requested Registration, the method of disposition of Registrable
Equity Securities and any other securities included in such
registration shall be an underwritten offering effected in accordance
with SECTION 4(a).
(ii) If the Company has failed to cause the Debt
Shelf Registration Statement to be declared effective within 180 days
after the date on which the Company receives written notice from the
Investor that it has acquired or purchased Registrable Debt Securities,
upon the written request of one or more Requesting Holders requesting
that the Company effect the registration under the Securities Act of
all or part of such Requesting Holders' Registrable Debt Securities and
specifying the number of Registrable Debt Securities to be registered
and the intended method of disposition thereof, the Company will
promptly, and in no event more than five (5) Business Days after
receipt of such request, give a Notice of Requested Registration of
such request to all other holders of Registrable Debt Securities and
thereupon will use its reasonable best efforts to effect the
registration under the Securities Act of the Registrable Debt
Securities which the Company has been so requested to register in
writing within ten (10) Business Days after receiving the Notice of
Requested Registration by such Requesting Holder or Holders, all to the
extent requisite to permit the disposition (in accordance with the
intended methods thereof) of the Registrable Debt Securities so to be
registered.
(iii) Notwithstanding the foregoing, the Company may
postpone taking action with respect to a Requested Registration for a
reasonable period of time after receipt of the original request (not
exceeding forty-five (45) days) if, in the good faith opinion of the
Company's Board of Directors, effecting the registration would
adversely affect a material financing, acquisition, disposition of
assets or stock, merger or other comparable transaction or would
require the Company to make public disclosure of information the public
disclosure of which would have a material adverse effect upon the
Company, PROVIDED that the Company shall not delay such action pursuant
to this sentence more than once in any twelve (12) month period.
Neither the Company nor any of its securityholders shall have the right
to include any of the Company's securities (other than Registrable
Securities) in a registration statement to be filed as part of a
Requested Registration unless (i) such securities are of the same class
or series as the Registrable Securities covered by such registration
statement, (ii) the holders of a majority of the Registrable Securities
covered by such registration statement consent to such inclusion in
writing and (iii) if such Requested Registration is an underwritten
offering, the Company or such securityholders, as applicable, agree in
writing to sell, subject to PARAGRAPH (f), their securities on the same
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terms and conditions as apply to the Registrable Securities being sold.
If any securityholders of the Company (other than the holders of
Registrable Securities in such capacity) register securities of the
Company in a Requested Registration in accordance with this Section,
such holders shall pay the fees and expenses of their counsel and their
PRO RATA share, on the basis of the respective amounts of the
securities included in such registration on behalf of each such holder,
of the Registration Expenses if the Registration Expenses for such
registration are not paid by the Company for any reason.
(c) LIMITATIONS ON REQUESTED REGISTRATIONS. Notwithstanding
anything herein to the contrary, the Company shall not be required to honor a
request for a Requested Registration if:
(i) the Registrable Equity Securities requested by
Requesting Holders to be so registered do not
constitute at least ten percent (10%) of the
total Registrable Equity Securities;
(ii) the Registrable Debt Securities requested by
Requesting Holders to be so registered do not
constitute at least ten percent (10%) in
aggregate principal amount of the total
Registrable Debt Securities;
(iii) such request is received from any Requesting
Holder with respect to Registrable Securities
that may immediately be sold by such Requesting
Holder under Rule 144 during any ninety (90)
day period; or
(iv) such request is received by the Company less
than one hundred eighty (180) days following
the effective date of any previous registration
statement relating to such Registrable
Securities filed in connection with a Requested
Registration, regardless of whether any holder
of the Registrable Securities covered thereby
exercised its rights under this Agreement with
respect to such registration, unless such
previous registration constituted a Cutback
Registration in which the number of Registrable
Securities actually included in such
registration was not at least eighty-five
percent (85%) of the number of Registrable
Securities requested to be included in such
registration.
(d) REGISTRATION STATEMENT FORM. A Shelf Registration
Statement and any Requested Registrations shall be on such appropriate
registration form promulgated by the Commission as shall be selected by the
Company, and shall be reasonably acceptable to the holders of a majority of the
Registrable Equity Securities or Registrable Debt Securities (or, if such
registration involves an underwritten Public Offering, the Managing
Underwriter), as the case may be, to which such registration relates, and shall
permit the disposition of such Registrable
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Securities in accordance with the intended method or methods specified in their
request for such registration.
(e) REGISTRATION EXPENSES. The Company will pay all
Registration Expenses incurred in connection with any Requested Registration.
(f) PRIORITY IN CUTBACK REGISTRATIONS. If a Requested
Registration becomes a Cutback Registration, the Company will include in any
such registration, to the extent of the number which the Managing Underwriter
advises the Company can be sold in such offering, (i) FIRST, Registrable
Securities requested to be included in such registration by the Requesting
Holders, PRO RATA on the basis of the number of Registrable Securities requested
to be included by such holders, (ii) SECOND, other Registrable Securities
requested to be included in such registration by the other Requesting Holders
(if any), PRO RATA on the basis of the number of Registrable Securities
requested to be included by such holders, and (iii) THIRD other securities of
the Company proposed to be included in such registration, allocated among the
holders thereof in accordance with the priorities then existing among the
Company and the holders of such other securities; and any securities so excluded
shall be withdrawn from and shall not be included in such Requested
Registration. If the Requesting Holders are unable to register at least
eighty-five percent (85%) of the Registrable Securities which they have
requested to be registered, then such registration shall not count as a
Requested Registration for purposes of this Section 1, and the Requesting
Holders will be entitled to request the registration of their Registrable
Securities on an additional occasion.
(g) PREEMPTION OF REQUESTED REGISTRATION. Notwithstanding
anything to the contrary contained herein, at any time within thirty (30) days
after receiving a written request for a Requested Registration of Registrable
Equity Securities, the Company may elect to effect an underwritten primary
registration in lieu of the Requested Registration if the Company's Board of
Directors believes that such primary registration would be in the best interests
of the Company or if the Managing Underwriter, if any, for the Requested
Registration advises the Company in writing that in its opinion, in order to
sell the Registrable Securities to be sold, the Company should include its own
securities. If the Company so elects to effect a primary registration, the
Company shall give prompt written notice to all holders of Registrable Equity
Securities of its intention to effect such a registration and shall afford the
holders of the Registrable Equity Securities rights contained in SECTION 2 with
respect to Piggyback Registrations. In the event that the Company so elects to
effect a primary registration after receiving a request for a Requested
Registration, the requests for a Requested Registration shall be deemed to have
been withdrawn and such primary registration shall not be deemed to be an
Effective Registration.
2. PIGGYBACK REGISTRATIONS.
(a) RIGHT TO INCLUDE REGISTRABLE SECURITIES. Notwithstanding
any limitation contained in SECTION 1, if the Company at any time proposes after
the date hereof to effect a Piggyback Registration, including in accordance with
SECTION 1(g), it will each such time give prompt written notice (a "NOTICE OF
PIGGYBACK REGISTRATION"), at least thirty (30) days prior to the anticipated
filing date, to all holders of Registrable Equity Securities of its intention to
do so and
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of such holders' rights under this SECTION 2, which Notice of Piggyback
Registration shall include a description of the intended method of disposition
of such securities. Upon the written request of any such holder made within
twenty (20) days after receipt of a Notice of Piggyback Registration (which
request shall specify the Registrable Equity Securities intended to be disposed
of by such holder and the intended method of disposition thereof), the Company
will, subject to the other provisions of this Agreement, include in the
registration statement relating to such Piggyback Registration all Registrable
Equity Securities which the Company has been so requested to register, all to
the extent requisite to permit the disposition of such Registrable Equity
Securities in accordance with the intended method of disposition set forth in
the Notice of Piggyback Registration. Notwithstanding the foregoing, if, at any
time after giving a Notice of Piggyback Registration and prior to the effective
date of the registration statement filed in connection with such registration,
the Company shall determine for any reason not to register or to delay
registration of such securities, the Company may, at its election, give written
notice of such determination to each holder of Registrable Equity Securities
and, thereupon, (i) in the case of a determination not to register, shall be
relieved of its obligation to register any Registrable Equity Securities in
connection with such registration (but not from its obligation to pay the
Registration Expenses in connection therewith) without prejudice, however, to
the rights of any Requesting Holder entitled to do so to request that such
registration be effected as a Requested Registration under SECTION 1, and (ii)
in the case of a determination to delay registering, shall be permitted to delay
registering any Registrable Equity Securities for the same period as the delay
in registering such other securities. No registration effected under this
SECTION 2 shall relieve the Company of its obligations to effect a Requested
Registration under SECTION 1.
(b) REGISTRATION EXPENSES. The Company will pay all
Registration Expenses incurred in connection with each Piggyback Registration.
(c) PRIORITY IN CUTBACK REGISTRATIONS. If a Piggyback
Registration becomes a Cutback Registration, the Company will include in such
registration, to the extent of the amount or kind of securities which the
Managing Underwriter advises the Company can be sold in such offering without
adversely affecting the success of such offering:
(i) if such registration as initially proposed by the Company
was solely a primary registration of its securities, (x)
FIRST, the securities proposed by the Company to be sold for
its own account, (y) SECOND, any Registrable Equity Securities
requested to be included in such registration by Requesting
Holders, PRO RATA on the basis of the number of Registrable
Equity Securities requested to be included by such holders,
and (z) THIRD, any other securities of the Company proposed to
be included in such registration, allocated among the holders
thereof in accordance with the priorities then existing among
the Company and such holders; and
(ii) if such registration as initially proposed by the Company
was in whole or in part requested by holders of securities of
the Company, other than holders of Registrable Equity
Securities in their capacities as such, pursuant to demand
registration rights, (x) FIRST, such securities held by the
holders initiating such
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registration and, if applicable, any securities proposed by
the Company to be sold for its own account, allocated in
accordance with the priorities then existing among the Company
and such holders, (y) SECOND, any Registrable Equity
Securities requested to be included in such registration by
Requesting Holders, PRO RATA on the basis of the number of
Registrable Equity Securities requested to be included by such
holders, and (z) THIRD, any other securities of the Company
proposed to be included in such registration, allocated among
the holders thereof in accordance with the priorities then
existing among the Company and the holders of such other
securities;
and any securities so excluded shall be withdrawn from and shall not be included
in such Piggyback Registration.
3. REGISTRATION PROCEDURES. If and whenever the Company is
required to effect the registration of any Registrable Securities under the
Securities Act pursuant to SECTION 1 or SECTION 2, the Company will use its best
efforts to effect the registration and sale of such Registrable Securities in
accordance with the intended method of disposition thereof. Without limiting the
foregoing, the Company in each such case will, as expeditiously as possible:
(a) use its best efforts to prepare and file with the
Commission, not later than thirty (30) days after the Company's receipt
of the request therefor from the Requesting Holders (or as soon
thereafter as possible) the requisite registration statement to effect
such registration and use its reasonable best efforts to cause such
registration statement to become effective, PROVIDED that as far in
advance as practical before filing such registration statement or any
amendment thereto, the Company will furnish to the Requesting Holders
of the Registrable Equity Securities or the Registrable Debt
Securities, as the case may be, copies of reasonably complete drafts of
all such documents proposed to be filed (including exhibits), and any
such holder shall have the opportunity to object to any information
pertaining solely to such holder that is contained therein and the
Company will make the corrections reasonably requested by such holder
with respect to such information prior to filing any such registration
statement or amendment;
(b) use its best efforts to prepare and file with the
Commission such amendments and supplements to such registration
statement and any prospectus used in connection therewith as may be
necessary to maintain the effectiveness of such registration statement
and to comply with the provisions of the Securities Act with respect to
the disposition of all Registrable Securities covered by such
registration statement, in accordance with the intended methods of
disposition thereof, until (i) the Effectiveness Period or (ii) the
Shelf Registration Effectiveness Period has ended;
(c) promptly notify each Requesting Holder and the underwriter
or underwriters, if any:
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(i) when such registration statement or any
prospectus used in connection therewith, or any amendment or
supplement thereto, has been filed and, with respect to such
registration statement or any post-effective amendment
thereto, when the same has become effective;
(ii) of any written comments from the Commission with
respect to any filing referred to in clause (i) and of any
written request by the Commission for amendments or
supplements to such registration statement or prospectus;
(iii) of the notification to the Company by the
Commission of the issuance of any stop order suspending the
effectiveness of such registration statement or the initiation
of any proceeding with respect to the issuance by the
Commission of any such stop order; and
(iv) of the receipt by the Company of any
notification with respect to the suspension of the
qualification of any Registrable Securities for sale under the
applicable securities or blue sky laws of any jurisdiction;
(d) furnish to each seller of Registrable Securities covered
by such registration statement such number of conformed copies of such
registration statement and of each amendment and supplement thereto (in
each case including all exhibits and documents incorporated by
reference), such number of copies of the prospectus contained in such
registration statement (including each preliminary prospectus and any
summary prospectus) and any other prospectus filed under Rule 424
promulgated under the Securities Act relating to such holder's
Registrable Securities, and such other documents, as such seller may
reasonably request to facilitate the disposition of its Registrable
Securities;
(e) use its best efforts to register or qualify all
Registrable Securities covered by such registration statement under
such other securities or blue sky laws of such jurisdictions as each
holder thereof shall reasonably request, to keep such registration or
qualification in effect for so long as such registration statement
remains in effect, and to take any other action which may be reasonably
necessary or advisable to enable such holder to consummate the
disposition in such jurisdictions of the Registrable Securities owned
by such holder, except that the Company shall not for any such purpose
be required (i) to qualify generally to do business as a foreign
corporation in any jurisdiction wherein it would not but for the
requirements of this PARAGRAPH (e) be obligated to be so qualified,
(ii) to subject itself to taxation in any such jurisdiction or (iii) to
consent to general service of process in any jurisdiction;
(f) use its reasonable best efforts to cause all Registrable
Securities covered by such registration statement to be registered with
or approved by such other governmental agencies or authorities as may
be necessary to enable each holder thereof to consummate the
disposition of such Registrable Securities;
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(g) furnish to each Requesting Holder a signed counterpart,
addressed to such holder (and the underwriters, if any), of
(i) an opinion of counsel for the Company, dated the
effective date of such registration statement (or, if such
registration includes an underwritten Public Offering, dated
the date of any closing under the underwriting agreement),
reasonably satisfactory in form and substance to such holder,
and
(ii) a "comfort" letter, dated the effective date of
such registration statement (and, if such registration
includes an underwritten Public Offering, dated the date of
any closing under the underwriting agreement), signed by the
independent public accountants who have certified the
Company's financial statements included in such registration
statement,
in each case covering substantially the same matters with respect to
such registration statement (and the prospectus included therein) and,
in the case of the accountants' letter, with respect to events
subsequent to the date of such financial statements, as are customarily
covered in opinions of issuer's counsel and in accountants' letters
delivered to the underwriters in underwritten public offerings of
securities and, in the case of the accountants' letter, such other
financial matters as such holder (or the underwriters, if any) may
reasonably request;
(h) notify each holder of Registrable Securities covered by
such registration statement, at any time when a prospectus relating
thereto is required to be delivered under the Securities Act, of the
happening of any event as a result of which any prospectus included in
such registration statement, as then in effect, includes an untrue
statement of a material fact or omits to state any material fact
required to be stated therein or necessary to make the statements
therein, in the light of the circumstances under which they were made,
not misleading, and at the request of any such holder promptly prepare
and furnish to such holder a reasonable number of copies of a
supplement to or an amendment of such prospectus as may be necessary so
that, as thereafter delivered to the purchasers of such securities,
such prospectus shall not include an untrue statement of a material
fact or omit to state a material fact required to be stated therein or
necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading;
(i) otherwise use its reasonable best efforts to comply with
all applicable rules and regulations of the Commission, and make
available to its securityholders, as soon as reasonably practicable, an
earnings statement covering the period of at least twelve (12) months,
but not more than eighteen (18) months, beginning with the first full
calendar month after the effective date of such registration statement,
which earnings statement shall satisfy the provisions of Section 11(a)
of the Securities Act and Rule 158 promulgated thereunder;
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(j) make available for inspection by any Requesting Holder,
any underwriter participating in any disposition pursuant to such
registration statement and any attorney, accountant or other agent
retained by any such seller or underwriter (collectively, the
"INSPECTORS"), all financial and other records, pertinent corporate
documents and properties of the Company (collectively, the "RECORDS")
as shall be reasonably necessary to enable them to exercise their due
diligence responsibility, and cause the Company's officers, directors
and employees to supply all information reasonably requested by any
such Inspector in connection with such registration statement, and
permit the Inspectors to participate in the preparation of such
registration statement and any prospectus contained therein and any
amendment or supplement thereto. Records which the Company determines,
in good faith, to be confidential and which it notifies the Inspectors
are confidential shall not be disclosed by the Inspectors unless (i)
the disclosure of such Records is necessary to avoid or correct a
material misstatement in or omission from the registration statement,
(ii) the release of such Records is ordered pursuant to a subpoena or
other order from a court of competent jurisdiction or (iii) the
information in such Records has been made generally available to the
public. The seller of Registrable Securities agrees by acquisition of
such Registrable Securities that it will, upon learning that disclosure
of such Records is sought in a court of competent jurisdiction, give
notice to the Company and allow the Company, at the Company's expense,
to undertake appropriate action to prevent disclosure of the Records
deemed confidential;
(k) provide a transfer agent and a registrar for all
Registrable Securities covered by such registration statement not later
than the effective date of such registration statement;
(l) use its reasonable best efforts to cause all Registrable
Securities covered by such registration statement to be listed, upon
official notice of issuance, on any securities exchange or included in
any automatic quotation system on which the Common Stock is then listed
or quoted, and, in any event, obtain and maintain a ticker symbol for
the Common Stock; and
(m) use its reasonable best efforts to cause any Requested
Registration to be declared effective under the Securities Act as soon
as practicable (taking into account the legal requirements for
registration from time to time) but in any event no later than one
hundred twenty (120) days following the Company's receipt of the
request therefor from the Requesting Holders, and to use its best
efforts to keep the Requested Registration continuously effective under
the Securities Act during the Effectiveness Period.
(n) issue, upon the request of any Requesting Holder of
Registrable Debt Securities, exchange notes having an aggregate
principal amount equal to the aggregate principal amount of the
Registrable Debt Securities surrendered to the Company by such
Requesting Holder in exchange therefor; such exchange notes to be
identical in all material respects to the Registrable Debt Securities
being surrendered except that they shall contain no restrictive legend
thereon and the resale thereof shall be registered under the Securities
-11-
Act; in return, the Registrable Debt Securities being exchanged by such
Requesting Holder shall be surrendered to the Company for cancellation.
(o) provide a CUSIP number for all Registrable Securities not
later than the effective date of the applicable Shelf Registration
Statement or Requested Registration and, in the case of Registrable
Debt Securities, provide the trustee under the applicable indenture
with printed certificates for the Registrable Debt Securities which are
in a form eligible for deposit with The Depository Trust Company.
The Company may require each holder of Registrable Securities
as to which any registration is being effected to, and each such holder, as a
condition to including Registrable Securities in such registration, shall,
furnish the Company with such information and affidavits regarding such holder
and the distribution of such securities as the Company may from time to time
reasonably request in writing in connection with such registration.
Each holder of Registrable Securities agrees by acquisition of
such Registrable Securities that upon receipt of any notice from the Company of
the happening of any event of the kind described in PARAGRAPH (h), such holder
will forthwith discontinue such holder's disposition of Registrable Securities
pursuant to the registration statement relating to such Registrable Securities
until such holder's receipt of the copies of the supplemented or amended
prospectus contemplated by PARAGRAPH (h) and, if so directed by the Company,
will deliver to the Company (at the Company's expense) all copies, other than
permanent file copies, then in such holder's possession of the prospectus
relating to such Registrable Securities current at the time of receipt of such
notice. In the event the Company shall give any such notice, the Effectiveness
Period shall be extended by a number of days equal to the number of days during
the period from and including the giving of notice pursuant to PARAGRAPH (h) and
to and including the date when each holder of any Registrable Securities covered
by such registration statement shall receive the copies of the supplemented or
amended prospectus contemplated by PARAGRAPH (h).
4. UNDERWRITTEN OFFERINGS.
(a) UNDERWRITTEN REQUESTED OFFERINGS. In the case of any
underwritten Public Offering being effected pursuant to any Shelf Registration
Statement or a Requested Registration, the Managing Underwriter and any other
underwriter or underwriters with respect to such offering shall be selected by
the Company with the consent of the holders of a majority of the Registrable
Equity Securities to be included in such underwritten offering or a majority in
principal amount of the Registrable Debt Securities to be included in such
underwritten offering, as the case may be, which consent shall not be
unreasonably withheld. The Company shall enter into an underwriting agreement in
customary form with such underwriter or underwriters, which shall include, among
other provisions, indemnities to the effect and to the extent provided in
SECTION 6. The holders of Registrable Securities to be distributed by such
underwriters shall be parties to such underwriting agreement and may, at their
option, require that any or all of the representations and warranties by, and
the other agreements on the part of, the Company to and for the benefit of such
underwriters also be made to and for their benefit and that any or all of the
conditions precedent to the
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obligations of such underwriters under such underwriting agreement also be
conditions precedent to their obligations. No holder of Registrable Securities
shall be required to make any representations or warranties to or agreements
with the Company or the underwriters other than representations, warranties or
agreements regarding such holder and its ownership of the securities being
registered on its behalf and such holder's intended method of distribution and
any other representation required by law. Subject to the preceding sentence, no
Requesting Holder may participate in such underwritten offering unless such
holder agrees to sell its Registrable Securities on the basis provided in such
underwriting agreement and completes and executes all questionnaires, powers of
attorney, indemnities and other documents reasonably required under the terms of
such underwriting agreement. If any Requesting Holder disapproves of the terms
of an underwriting, such holder may elect to withdraw therefrom and from such
registration by notice to the Company and the Managing Underwriter, and each of
the remaining Requesting Holders shall be entitled to increase the amount of
Registrable Securities being registered to the extent of the Registrable
Securities so withdrawn in the proportion which the amount of Registrable
Securities being registered by such remaining Requesting Holder bears to the
total amount of Registrable Securities being registered by all such remaining
Requesting Holders.
(b) UNDERWRITTEN PIGGYBACK OFFERINGS. If the Company at any
time proposes to register any of its securities in a Piggyback Registration and
such securities are to be distributed by or through one or more underwriters,
the Company will, subject to the provisions of SECTION 2(c), use its reasonable
best efforts, if requested by any holder of Registrable Equity Securities, to
arrange for such underwriters to include the Registrable Equity Securities to be
offered and sold by Requesting Holders among the securities to be distributed by
such underwriters, and such holders shall be obligated to sell their Registrable
Equity Securities in such Piggyback Registration through such underwriters on
the same terms and conditions as apply to the other Company securities to be
sold by such underwriters in connection with such Piggyback Registration. The
holders of Registrable Equity Securities to be distributed by such underwriters
shall be parties to the underwriting agreement between the Company and such
underwriter or underwriters and may, at their option, require that any or all of
the representations and warranties by, and the other agreements on the part of,
the Company to and for the benefit of such underwriters also be made to and for
their benefit and that any or all of the conditions precedent to the obligations
of such underwriters under such underwriting agreement also be conditions
precedent to their obligations. No holder of Registrable Equity Securities shall
be required to make any representations or warranties to or agreements with the
Company or the underwriters other than representations, warranties or agreements
regarding such holder and its ownership of the securities being registered on
its behalf and such holder's intended method of distribution and any other
representation required by law. Subject to the preceding sentence, no Requesting
Holder may participate in such underwritten offering unless such holder agrees
to sell its Registrable Equity Securities on the basis provided in such
underwriting agreement and completes and executes all questionnaires, powers of
attorney, indemnities and other documents reasonably required under the terms of
such underwriting agreement. If any Requesting Holder disapproves of the terms
of an underwriting, such holder may elect to withdraw therefrom and from such
registration by notice to the Company and the Managing Underwriter, and each of
the remaining Requesting Holders shall be entitled to increase the number of
Registrable Equity Securities being
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registered to the extent of the Registrable Equity Securities so withdrawn in
the proportion which the number of Registrable Equity Securities being
registered by such remaining Requesting Holder bears to the total number of
Registrable Equity Securities being registered by all such remaining Requesting
Holders.
5. HOLDBACK AGREEMENTS.
(a) BY THE HOLDERS OF REGISTRABLE SECURITIES. If and to the
extent requested by the Managing Underwriter (or, in the case of a
non-underwritten Public Offering, the Company), each holder of Registrable
Securities, by acquisition of such Registrable Securities, agrees, to the extent
permitted by law, not to effect any public sale or distribution (including a
sale under Rule 144) of such securities, or any securities convertible into or
exchangeable or exercisable for such securities, during the ten (10) days prior
to and the ninety (90) days after the effective date of any registration
statement filed by the Company in connection with a primary offering of Common
Stock on behalf of the Company (or for such shorter period of time as is
sufficient and appropriate, in the opinion of the Managing Underwriter (or, in
the case of a non-underwritten Public Offering, the Company), in order to
complete the sale and distribution of the securities included in such
registration), except as part of such registration statement, whether or not
such holder participates in such registration.
(b) BY THE COMPANY AND OTHER SECURITYHOLDERS. Other than with
respect to a Shelf Registration Statement, the Company agrees (x) not to effect
any public sale or distribution of its equity securities, or any securities
convertible into or exchangeable or exercisable for such securities, during the
ten (10) days prior to and the ninety (90) days after the effective date of the
registration statement filed in connection with an underwritten offering made
pursuant to a Requested Registration (or for such shorter period of time as is
sufficient and appropriate, in the opinion of the Managing Underwriter, in order
to complete the sale and distribution of the securities included in such
registration), except as part of such underwritten registration and except
pursuant to registrations on Form S-4 or Form S-8 promulgated by the Commission
or any successor or similar forms thereto, and (y) to cause each holder of its
equity securities, or of any securities convertible into or exchangeable or
exercisable for such securities, in each case purchased from the Company at any
time after the date of this Agreement (other than in a Public Offering), to
agree, to the extent permitted by law, not to effect any such public sale or
distribution of such securities (including a sale under Rule 144), during such
period, except as part of such underwritten registration, in each case without
the written consent of the Investor and unless the Managing Underwriter
otherwise agrees.
(c) EXCEPTION. The foregoing provisions shall not apply to
any holder of securities of the Company to the extent such holder is prohibited
by applicable law from agreeing to withhold from sale or to the extent such
holder is acting in its capacity as a fiduciary or an investment adviser.
Without limiting the scope of the term "fiduciary", a holder shall be deemed to
be acting as a fiduciary or an investment adviser if its actions or the shares
proposed to be sold are subject to the Employee Retirement Income Security Act,
the Investment Company Act of
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1940 or the Investment Advisers Act of 1940 or if such shares are held in a
separate account under applicable insurance law or regulation.
6. INDEMNIFICATION.
(a) INDEMNIFICATION BY THE COMPANY. The Company shall, to the
full extent permitted by law, indemnify and hold harmless each holder of
Registrable Securities included in any registration statement filed in
connection with a Shelf Registration Statement, a Requested Registration or a
Piggyback Registration, its directors and officers, and each other Person, if
any, who controls any such holder within the meaning of the Securities Act,
against any losses, claims, damages, expenses or liabilities, joint or several
(together, "LOSSES"), to which such holder or any such director or officer or
controlling Person may become subject under the Securities Act or otherwise,
insofar as such Losses (or actions or proceedings, whether commenced or
threatened, in respect thereof) arise out of or are based upon any untrue
statement or alleged untrue statement of any material fact contained in any such
registration statement, any preliminary prospectus, final prospectus or summary
prospectus contained therein, or any amendment or supplement thereto, or any
omission or alleged omission to state therein a material fact required to be
stated therein or necessary to make the statements therein (in the case of a
prospectus, in the light of the circumstances under which they were made) not
misleading, and the Company will reimburse such holder and each such director,
officer and controlling Person for any legal or any other expenses reasonably
incurred by them in connection with investigating or defending against any such
Loss (or action or proceeding in respect thereof); PROVIDED that the Company
shall not be liable in any such case to the extent that any such Loss (or action
or proceeding in respect thereof) arises out of or is based upon (x) an untrue
statement or alleged untrue statement or omission or alleged omission made in
any such registration statement, preliminary prospectus, final prospectus,
summary prospectus, amendment or supplement in reliance upon and in conformity
with information furnished or confirmed in writing to the Company through an
instrument duly executed by such holder specifically stating that it is for use
in the preparation thereof or (y) such holder's failure to send or give a copy
of the final prospectus (including any supplements thereto) to the Persons
asserting an untrue statement or alleged untrue statement or omission or alleged
omission at or prior to the written confirmation of the sale of Registrable
Securities to such Person if such statement or omission was corrected in such
final prospectus (including any supplements thereto). Such indemnity shall
remain in full force and effect regardless of any investigation made by or on
behalf of such holder or any such director, officer or controlling Person, and
shall survive the transfer of such securities by such holder. The Company shall
also indemnify each other Person who participates (including as an underwriter)
in the offering or sale of Registrable Securities, their officers and directors
and each other Person, if any, who controls any such participating Person within
the meaning of the Securities Act to the same extent as provided above with
respect to holders of Registrable Securities.
(b) INDEMNIFICATION BY THE HOLDERS. Each holder of Registrable
Securities which are included or are to be included in any registration
statement filed in connection with a Shelf Registration Statement, a Requested
Registration or a Piggyback Registration, as a condition to including
Registrable Securities in such registration statement, shall, to the full extent
permitted
-15-
by law, indemnify and hold harmless the Company, its directors and officers, and
each other Person, if any, who controls the Company within the meaning of the
Securities Act, against any Losses to which the Company or any such director or
officer or controlling Person may become subject under the Securities Act or
otherwise, insofar as such Losses (or actions or proceedings, whether commenced
or threatened, in respect thereof) arise out of or are based upon any untrue
statement or alleged untrue statement of any material fact contained in any such
registration statement, any preliminary prospectus, final prospectus or summary
prospectus contained therein, or any amendment or supplement thereto, or any
omission or alleged omission to state therein a material fact required to be
stated therein or necessary to make the statements therein (in the case of a
prospectus, in the light of the circumstances under which they were made) not
misleading, if such untrue statement or alleged untrue statement or omission or
alleged omission was made in reliance upon and in conformity with information
furnished or confirmed in writing to the Company through an instrument duly
executed by such holder specifically stating that it is for use in the
preparation of such registration statement, preliminary prospectus, final
prospectus, summary prospectus, amendment or supplement; PROVIDED, HOWEVER, that
the obligation to provide indemnification pursuant to this SECTION 6(b) shall be
several, and not joint and several, among such Indemnifying Parties on the basis
of the number of Registrable Securities included in such registration statement
and the aggregate amount which may be recovered from any holder of Registrable
Securities pursuant to the indemnification provided for in this SECTION 6(b) in
connection with any registration and sale of Registrable Securities shall be
limited to the total proceeds received by such holder from the sale of such
Registrable Securities. Such indemnity shall remain in full force and effect
regardless of any investigation made by or on behalf of the Company or any such
director, officer or controlling Person and shall survive the transfer of such
securities by such holder. Such holders shall also indemnify each other Person
who participates (including as an underwriter) in the offering or sale of
Registrable Securities, their officers and directors and each other Person, if
any, who controls any such participating Person within the meaning of the
Securities Act to the same extent as provided above with respect to the Company.
(c) NOTICES OF CLAIMS, ETC. Promptly after receipt by an
Indemnified Party of notice of the commencement of any action or proceeding
involving a claim referred to in the preceding PARAGRAPH (a) OR (b) of this
SECTION 6, such Indemnified Party will, if a claim in respect thereof is to be
made against an Indemnifying Party pursuant to such paragraphs, give written
notice to the latter of the commencement of such action, PROVIDED that the
failure of any Indemnified Party to give notice as provided herein shall not
relieve the Indemnifying Party of its obligations under the preceding paragraphs
of this SECTION 6, except to the extent that the Indemnifying Party is actually
prejudiced by such failure to give notice. In case any such action is brought
against an Indemnified Party, the Indemnifying Party shall be entitled to
participate in and to assume the defense thereof, jointly with any other
Indemnifying Party similarly notified to the extent that it may wish, with
counsel reasonably satisfactory to such Indemnified Party, and after notice from
the Indemnifying Party to such Indemnified Party of its election so to assume
the defense thereof, the Indemnifying Party shall not be liable to such
Indemnified Party for any legal or other expenses subsequently incurred by the
latter in connection with the defense thereof other than reasonable costs of
investigation; PROVIDED that the Indemnified Party may participate in such
defense at the Indemnified Party's expense; and PROVIDED FURTHER that the
Indemnified Party (or
-16-
Indemnified Parties) shall have the right to employ one counsel to represent it
(or them, collectively) if, in the reasonable judgment of the Indemnified Party
or Indemnified Parties, it is advisable for it (or them) to be represented by
separate counsel by reason of having legal defenses which are different from or
in addition to those available to the Indemnifying Party, and in that event the
reasonable fees and expenses of such one counsel shall be paid by the
Indemnifying Party. If the Indemnifying Party is not entitled to, or elects not
to, assume the defense of a claim, it will not be obligated to pay the fees and
expenses of more than one counsel for the Indemnified Parties with respect to
such claim, unless in the reasonable judgment of any Indemnified Party a
conflict of interest may exist between such Indemnified Party and any other
Indemnified Parties with respect to such claim, in which event the Indemnifying
Party shall be obligated to pay the fees and expenses of such additional counsel
for each Indemnified Party having a conflict of interest. No Indemnifying Party
shall consent to entry of any judgment or enter into any settlement without the
consent of the Indemnified Party which does not include as an unconditional term
thereof the giving by the claimant or plaintiff to such Indemnified Party of a
release from all liability in respect of such claim or litigation. No
Indemnifying Party shall be subject to any liability for any settlement made
without its consent, which consent shall not be unreasonably withheld.
Notwithstanding the foregoing sentence, if at any time an Indemnified Party or
any person who controls an Indemnified Party shall have requested an
Indemnifying Party to reimburse an Indemnified Party or such control person for
reasonable fees and expenses actually incurred by counsel for which such
Indemnified Party or person is entitled to be so reimbursed pursuant to this
Agreement, the Indemnifying Party agrees that it shall be liable for any
settlement of any proceeding effected without its consent if (i) such settlement
is entered into more than 60 days after receipt by such Indemnifying Party of
the aforesaid request and (ii) such Indemnifying Party shall not have reimbursed
the Indemnified Party or such control person in accordance with such request
prior to the date of such settlement; PROVIDED, HOWEVER, that the Indemnifying
Party shall not be liable for any settlement effected without its consent
pursuant to this sentence if the Indemnifying Party is contesting, in good
faith, the request for reimbursement and shall have reimbursed all amounts not
so contested.
(d) CONTRIBUTION. If the indemnity and reimbursement
obligation provided for in any paragraph of this SECTION 6 is unavailable or
insufficient to hold harmless an Indemnified Party in respect of any Losses (or
actions or proceedings in respect thereof) referred to therein, then the
Indemnifying Party shall contribute to the amount paid or payable by the
Indemnified Party as a result of such Losses (or actions or proceedings in
respect thereof) in such proportion as is appropriate to reflect the relative
fault of the Indemnifying Party on the one hand and the Indemnified Party on the
other hand in connection with the statements or omissions which resulted in such
Losses, as well as any other relevant equitable considerations. The relative
fault shall be determined by reference to, among other things, whether the
untrue or alleged untrue statement of a material fact or the omission or alleged
omission to state a material fact relates to information supplied by the
Indemnifying Party or the Indemnified Party and the parties' relative intent,
knowledge, access to information and opportunity to correct or prevent such
untrue statement or omission. The parties hereto agree that it would not be just
and equitable if contributions pursuant to this paragraph were to be determined
by PRO RATA allocation or by any other method of allocation which does not take
account of the equitable considerations referred to in the first sentence of
this
-17-
paragraph. The amount paid by an Indemnified Party as a result of the Losses
referred to in the first sentence of this paragraph shall be deemed to include
any legal and other expenses reasonably incurred by such Indemnified Party in
connection with investigating or defending any Loss which is the subject of this
paragraph.
No Indemnified Party guilty of fraudulent misrepresentation
(within the meaning of Section 11(f) of the Securities Act) shall be entitled to
contribution from the Indemnifying Party if the Indemnifying Party was not
guilty of such fraudulent misrepresentation.
(e) OTHER INDEMNIFICATION. Indemnification similar to that
specified in the preceding paragraphs of this SECTION 6 (with appropriate
modifications) shall be given by the Company and each holder of Registrable
Securities with respect to any required registration or other qualification of
securities under any federal or state law or regulation of any governmental
authority other than the Securities Act. The provisions of this SECTION 6 shall
be in addition to any other rights to indemnification or contribution which an
Indemnified Party may have pursuant to law, equity, contract or otherwise.
(f) INDEMNIFICATION PAYMENTS. The indemnification required by
this SECTION 6 shall be made by periodic payments of the amount thereof during
the course of the investigation or defense, as and when bills are received or
Losses are incurred.
7. COVENANT RELATING TO RULE 144. If at any time the Company
is required to file reports in compliance with either Section 13 or Section
15(d) of the Exchange Act, the Company will file reports in compliance with the
Exchange Act, will comply in all material respects with the rules and
regulations of the Commission applicable in connection with the use of Rule 144
and will take such other actions and furnish the holder of any Registrable
Securities with such other information as such holder may reasonably request in
order to avail itself of such rule or any other rule or regulation of the
Commission allowing such holder to sell any Registrable Securities without
registration. If at any time the Company is not required to file reports in
compliance with either Section 13 or Section 15(d) of the Exchange Act, the
Company at its expense will, forthwith upon the written request of the holder of
any Registrable Securities, make available adequate current public information
with respect to the Company within the meaning of paragraph (c)(2) of Rule 144.
8. OTHER REGISTRATION RIGHTS.
(a) NO EXISTING AGREEMENTS. The Company represents and
warrants to the Investor that there is not in effect on the date hereof any
agreement by the Company (other than this Agreement, the Registration Rights
Agreement dated as of the date hereof by and among the Company, the Guarantors
named therein and the Purchasers named therein relating to the Series A Notes
and the Common Stock Registration Rights Agreement dated as of the date hereof
by and among the Company and the Purchasers named therein) pursuant to which any
holders of securities of the Company have a right to cause the Company to
register or qualify such securities under the Securities Act or any securities
or blue sky laws of any jurisdiction.
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(b) FUTURE AGREEMENTS. The Company shall not hereafter agree
with the holder of any securities issued or to be issued by the Company to
register or qualify such securities under the Securities Act or any securities
or blue sky laws of any jurisdiction unless such agreement specifically provides
that (i) such holder may not participate in any Shelf Registration Statement
unless as otherwise agreed by the Company with the consent of the Investor,
which consent shall not be unreasonably withheld; (ii) such holder may not
participate in any Requested Registration except as provided in SECTION 1(b);
(iii) such holder may not participate in any Piggyback Registration except as
provided in SECTION 2; and (iv) such securities may not be publicly offered or
sold for the period specified in SECTION 5(b)(y) under the circumstances
described in such Section.
(c) BEST REGISTRATION RIGHTS. If the Company grants to any
Person other than a holder of Registrable Securities (an "OTHER HOLDER") with
respect to any debt security or equity security, as the case may be, issued by
the Company registration rights that provide for terms that, taken as a whole,
are more favorable to the Other Holder than the terms granted to the holders of
the Registrable Equity Securities or Registrable Debt Securities, if any (or if
the Company amends or waives any provision of any agreement providing
registration rights to an Other Holder or takes any other action whatsoever to
provide for terms with respect to registration rights that in either case
results in the terms with respect to registration rights of an Other Holder,
taken as a whole, being materially more favorable to such Other Holder than the
terms provided to the holders of Registrable Securities), then the Company shall
promptly so notify the holders of Registrable Securities in writing. If the
holders of a majority of the Registrable Equity Securities shall notify the
Company not later than 30 days after their receipt of such notice from the
Company that such holders elect to amend this Agreement as hereinafter provided,
this Agreement shall as promptly as practicable thereafter be amended to conform
the provisions of this Agreement relating to the Registrable Equity Securities
as closely as practicable to the registration rights of such Other Holder. If
the holders of a majority of the Registrable Debt Securities, if any, shall
notify the Company not later than 30 days after their receipt of such notice
from the Company that such holders elect to amend this Agreement as hereinafter
provided, this Agreement shall as promptly as practicable thereafter be amended
to conform the provisions of this Agreement relating to the Registrable Debt
Securities as closely as practicable to the registration rights of such Other
Holder.
9. DEFINITIONS.
(a) Except as otherwise specifically indicated, the following
terms will have the following meanings for all purposes of this Agreement:
"AGREEMENT" means this Registration Rights Agreement, as the
same shall be amended from time to time.
"BANKRUPTCY CASE" has the meaning ascribed to it in the
preamble.
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"BANKRUPTCY CODE" has the meaning ascribed to it in the
preamble.
"BANKRUPTCY COURT" has the meaning ascribed to it in the
preamble.
"BUSINESS DAY" means a day other than Saturday, Sunday or any
other day on which banks located in the State of New York are authorized or
obligated to close.
"COMMISSION" means the United States Securities and Exchange
Commission, or any successor governmental agency or authority.
"COMMON STOCK" means shares of Common Stock, par value $0.01
per share, of the Company, as constituted on the date hereof, and any stock into
which such Common Stock shall have been changed or any stock resulting from any
reclassification of such Common Stock.
"COMPANY" has the meaning ascribed to it in the preamble.
"CONFIRMATION ORDER" has the meaning ascribed to it in the
preamble.
"CUTBACK REGISTRATION" means any Requested Registration or
Piggyback Registration to be effected as an underwritten Public Offering in
which the Managing Underwriter with respect thereto advises the Company and the
Requesting Holders in writing that, in its opinion, the number of securities
requested to be included in such registration (including securities of the
Company which are not Registrable Securities) exceed the number which can be
sold in such offering without a material reduction in the selling price
anticipated to be received for the securities to be sold in such Public
Offering.
"DEBT SHELF REGISTRATION STATEMENT" means a registration
statement of the Company in compliance with the provisions of SECTION 1(a)(ii)
of this Agreement which registers the continuous offer and sale of all of the
Registrable Debt Securities and, at the option of the Company, any Registrable
Equity Securities, on an appropriate form under Rule 415 under the Securities
Act or any similar or successor rule that may be adopted by the Commission, and
all amendments to such registration statement, including post-effective
amendments, in each case including any prospectus contained therein and any
supplement to any such prospectus, all exhibits thereto and all information
incorporated by reference therein.
"EFFECTIVE DATE" has the meaning ascribed to it in the Plan.
"EFFECTIVENESS PERIOD" means the period that begins on the
date on which a Requested Registration becomes effective and extends through the
date on which all the Registered Securities covered by such registration
statement have been disposed of in accordance with the intended methods of
disposition by the Requesting Holders set forth in such registration statement.
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"EFFECTIVE REGISTRATION" means, subject to the last sentence
of SECTION 1(g), any Shelf Registration Statement or a Requested Registration
which (a) has been declared or ordered effective in accordance with the rules of
the Commission, (b) has been kept effective for the period of time contemplated
by SECTION 3(b) and (c) has resulted in the Registrable Securities requested to
be included in such registration actually being sold (except by reason of some
act or omission on the part of the Requesting Holders); PROVIDED that a Cutback
Registration in which the number of Registrable Securities actually included in
such registration is not at least eighty-five percent (85%) of the number of
Registrable Securities requested to be included in such registration shall not
be an Effective Registration for purposes of this Agreement.
"EQUITY SHELF REGISTRATION STATEMENT" means a registration
statement of the Company in compliance with the provisions of SECTION 1(a)(i) of
this Agreement which registers the continuous offer and sale of all of the
Registrable Equity Securities on an appropriate form under Rule 415 under the
Securities Act or any similar or successor rule that may be adopted by the
Commission, and all amendments to such registration statement, including
post-effective amendments, in each case including any prospectus contained
therein and any supplement to any such prospectus, all exhibits thereto and all
information incorporated by reference therein.
"EXCHANGE ACT" means the Securities Exchange Act of 1934, as
amended, and the rules and regulations promulgated thereunder.
"FORM S-4" means Form S-4 promulgated by the Commission under
the Securities Act, or any successor or similar registration statement.
"FORM S-8" means Form S-8 promulgated by the Commission under
the Securities Act, or any successor or similar registration statement.
"INDEMNIFIED PARTY" means a party entitled to indemnity in
accordance with SECTION 6.
"INDEMNIFYING PARTY" means a party obligated to provide
indemnity in accordance with SECTION 6.
"INSPECTORS" has the meaning ascribed to it in SECTION 3(j).
"INVESTOR" has the meaning ascribed to it in the preamble.
"LOSSES" has the meaning ascribed to it in SECTION 6(a).
"MANAGING UNDERWRITER" means, with respect to any Public
Offering, the underwriter or underwriters managing such Public Offering.
"NASD" means the National Association of Securities Dealers,
Inc.
21
"NOTICE OF PIGGYBACK REGISTRATION" has the meaning ascribed to
it in SECTION 2(a).
"NOTICE OF REQUESTED REGISTRATION" has the meaning ascribed to
it in SECTION 1(b).
"PERSON" means any natural person, corporation, general
partnership, limited partnership, proprietorship, other business organization,
trust, union or association.
"PIGGYBACK REGISTRATION" means any registration of equity
securities of the Company under the Securities Act (other than a registration in
respect of a dividend reinvestment or similar plan for stockholders of the
Company or on Form S-4 or Form S-8 promulgated by the Commission, or any
successor or similar forms thereto), whether for sale for the account of the
Company or for the account of any holder of securities of the Company (other
than Registrable Securities), including a registration by the Company under the
circumstances described in SECTION 1(g).
"PLAN" has the meaning ascribed to it in the preamble.
"PUBLIC OFFERING" means any offering of Common Stock or
preferred stock to the public, either on behalf of the Company or any of its
securityholders, pursuant to an effective registration statement under the
Securities Act.
"RECORDS" has the meaning ascribed to it in SECTION 3(j).
"REGISTRABLE DEBT SECURITIES" means the Series A Notes, any
additional debt securities issued under the Indenture, and any debt securities
of the Company or any of its subsidiaries that may be purchased or acquired
after the date of this Agreement by the Investor or its affiliates and are
subject to restrictions on transfer under the Securities Act or any other
applicable securities laws, including without limitation volume restrictions
pursuant to Rule 144 under the Securities Act. As to any particular Registrable
Securities, once issued such securities shall cease to be Registrable Securities
when (i) a registration statement with respect to the sale of such securities
shall have become effective under the Securities Act and such securities shall
have been disposed of in accordance with such registration statement, (ii) they
shall have been sold pursuant to Rule 144, or (iii) they shall have ceased to be
outstanding.
"REGISTRABLE EQUITY SECURITIES" means (i) the Shares, (ii) the
Warrants, (iii) the shares of Common Stock for which such Warrants are
exercisable pursuant to their terms, and (iv) any additional shares of Common
Stock issued or distributed by way of a dividend, stock split, conversion, or
other distribution in respect of the Shares, or acquired by way of any rights
offering or similar offering made in respect of the Shares. As to any particular
Registrable Securities, once issued such securities shall cease to be
Registrable Securities when (i) a registration statement with respect to the
sale of such securities shall have become effective under the Securities Act and
such securities shall have been disposed of in accordance with such registration
statement, (ii) they shall have been sold pursuant to Rule 144, or (iii) they
shall have ceased to be outstanding.
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"REGISTRABLE SECURITIES" means the Registrable Equity
Securities and the Registrable Debt Securities, if any.
"REGISTRATION EXPENSES" means all expenses incident to the
Company's performance of or compliance with its obligations under this Agreement
to effect the registration of Registrable Securities in any Shelf Registration
Statement, a Requested Registration or a Piggyback Registration, including,
without limitation, all registration, filing, securities exchange listing and
NASD fees (including Nasdaq fees, if applicable), all registration, filing,
qualification and other fees and expenses of complying with securities or blue
sky laws, all word processing, duplicating and printing expenses, messenger and
delivery expenses, the fees and disbursements of counsel for the Company and of
its independent public accountants, including the expenses of any special audits
or "cold comfort" letters required by or incident to such performance and
compliance, the reasonable fees and disbursements of a single counsel and single
firm of accountants retained by the holders of a majority of the Registrable
Securities being registered, premiums and other costs of policies of insurance
against liabilities arising out of the Public Offering of the Registrable
Securities being registered and any fees and disbursements of underwriters
customarily paid by issuers or holders of securities, but excluding underwriting
discounts and commissions and transfer taxes, if any, in respect of Registrable
Securities, which shall be payable by each holder thereof, PROVIDED that, in any
case where Registration Expenses are not to be borne by the Company, such
expenses shall not include salaries of Company personnel or general overhead
expenses of the Company, auditing fees, premiums or other expenses relating to
liability insurance required by underwriters of the Company or other expenses
for the preparation of financial statements or other data normally prepared by
the Company in the ordinary course of its business or which the Company would
have incurred in any event.
"REQUESTING HOLDERS" means, with respect to any Requested
Registration or Piggyback Registration, the holders of Registrable Equity
Securities requesting to have Registrable Equity Securities included in such
registration in accordance with this Agreement or the holders of Registrable
Debt Securities requesting to have Registrable Debt Securities included in such
registration in accordance with this Agreement.
"REQUESTED REGISTRATION" means any registration of Registrable
Securities under the Securities Act effected in accordance with SECTION 1(b).
"RULE 144" means Rule 144 promulgated by the Commission under
the Securities Act, and any successor provision thereto.
"SECURITIES ACT" means the Securities Act of 1933, as amended,
and the rules and regulations promulgated thereunder.
"SERIES A NOTES" has the meaning ascribed to it in the
preamble.
"SHARES" has the meaning ascribed to it in the preamble.
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"SHELF REGISTRATION EFFECTIVENESS PERIOD" has the meaning
ascribed to it in SECTION 1(a).
"SHELF REGISTRATION STATEMENT" means the Equity Shelf
Registration Statement or the Debt Shelf Registration Statement, as applicable,
in each case including all amendments to such registration statement (including
post-effective amendments), any prospectus contained therein and any supplement
to any such prospectus, all exhibits thereto and all information incorporated by
reference therein.
"WARRANTS" has the meaning ascribed to it in the preamble.
(b) Unless the context of this Agreement otherwise requires,
(i) words of any gender include each other gender; (ii) words using the singular
or plural number also include the plural or singular number, respectively; (iii)
the terms "hereof," "herein," "hereby" and derivative or similar words refer to
this entire Agreement; and (iv) the term "Section" refers to the specified
Section of this Agreement. Whenever this Agreement refers to a number of days,
such number shall refer to calendar days unless Business Days are specified.
10. MISCELLANEOUS.
(a) NOTICES. All notices, requests and other communications
hereunder must be in writing and will be deemed to have been duly given only if
delivered personally or by facsimile transmission or mailed (first class postage
prepaid) to the parties at the following addresses or facsimile numbers:
If to Investor, to:
Xxxxxx, Xxxxxx & Company L.P.
Xxx Xxxxxxxxx Xxxxxx
Xxxxxx, XX 00000
Facsimile No.: (000) 000-0000
Attn: Xxxxxxxxx X. Xxx
Xxxxxx X. Day
with a copy to:
Milbank, Tweed, Xxxxxx & XxXxxx LLP
0 Xxxxx Xxxxxxxxx Xxxxx
Xxx Xxxx, XX 00000
Facsimile No.: (000) 000-0000
Attn: Xxx X. Xxxxxxx, Esq.
Xxxxxx X. Xxxxx, Esq.
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If to the Company, to:
Hvide Marine Incorporated
0000 Xxxxx Xxxxx
P.O. Box 13038
Ft. Xxxxxxxxxx, Xxxxxxx 00000
Attn: General Counsel
Telephone No.: (000) 000-0000, ext. 801
Facsimile No.: (000) 000-0000
With respect to any other holder of Registrable Securities, such notices,
requests and other communications shall be sent to the addresses set forth in
the stock transfer records regularly maintained by the Company. All such
notices, requests and other communications will (i) if delivered personally to
the address as provided in this Section, be deemed given upon delivery, (ii) if
delivered by facsimile transmission to the facsimile number as provided in this
Section, be deemed given upon receipt, and (iii) if delivered by mail in the
manner described above to the address as provided in this Section, be deemed
given upon receipt (in each case regardless of whether such notice, request or
other communication is received by any other Person to whom a copy of such
notice is to be delivered pursuant to this Section). Any party from time to time
may change its address, facsimile number or other information for the purpose of
notices to that party by giving notice specifying such change to the other
parties hereto.
(b) ENTIRE AGREEMENT. This Agreement supersedes all prior
discussions and agreements between the parties with respect to the subject
matter hereof, and contains the sole and entire agreement between the parties
hereto with respect to the subject matter hereof.
(c) AMENDMENT. This Agreement may be amended, supplemented or
modified only by a written instrument (which may be executed in any number of
counterparts) duly executed by or on behalf of each of the Company and Persons
owning fifty-one percent (51%) or more of the Registrable Equity Securities and,
for so long as the Registrable Debt Securities, if any, are subject to
restrictions on transfer under the Securities Act or any other applicable
securities laws, Persons owning fifty-one percent (51%) in aggregate principal
amount or more of the Registrable Debt Securities.
(d) WAIVER. Subject to PARAGRAPH (e) of this Section, any term
or condition of this Agreement may be waived at any time by the party that is
entitled to the benefit thereof, but no such waiver shall be effective unless
set forth in a written instrument duly executed by or on behalf of the party
waiving such term or condition. No waiver by any party of any term or condition
of this Agreement, in any one or more instances, shall be deemed to be or
construed as a waiver of the same term or condition of this Agreement on any
future occasion.
(e) CONSENTS AND WAIVERS BY HOLDERS OF REGISTRABLE SECURITIES.
Any consent of the holders of Registrable Equity Securities or Registrable Debt
Securities, as the case may be,
25
pursuant to this Agreement, and any waiver by such holders of any provision of
this Agreement, shall be in writing (which may be executed in any number of
counterparts) and may be given or taken by Persons owning more than fifty
percent (50%) of the Registrable Equity Securities or more than fifty percent
(50%) in aggregate principal amount of the Registrable Debt Securities, as the
case may be, and any such consent or waiver so given or taken will be binding on
all the holders of such Registrable Equity Securities or Registrable Debt
Securities, respectively.
(f) NO THIRD PARTY BENEFICIARY. The terms and provisions of
this Agreement are intended solely for the benefit of each party hereto, their
respective successors or permitted assigns and any other holder of Registrable
Securities, and it is not the intention of the parties to confer third-party
beneficiary rights upon any other Person other than any Person entitled to
indemnity under SECTION 6.
(g) SUCCESSORS AND ASSIGNS. This Agreement is binding upon,
inures to the benefit of and is enforceable by the Company and the Investor (or
the investor or investors for which the Investor is acting as fiduciary or
agent, as the case may be) and their respective successors and assigns,
including all subsequent holders of the Registrable Securities; PROVIDED,
HOWEVER, that nothing herein shall be deemed to permit any assignment, transfer
or other disposition of Registrable Securities in violation of the terms hereof,
the Securities Act or any securities or blue sky laws of any jurisdiction.
(h) HEADINGS. The headings used in this Agreement have been
inserted for convenience of reference only and do not define or limit the
provisions hereof.
(i) INVALID PROVISIONS. If any provision of this Agreement is
held to be illegal, invalid or unenforceable under any present or future law,
and if the rights or obligations of any party hereto under this Agreement will
not be materially and adversely affected thereby, (i) such provision will be
fully severable, (ii) this Agreement will be construed and enforced as if such
illegal, invalid or unenforceable provision had never comprised a part hereof
and (iii) the remaining provisions of this Agreement will remain in full force
and effect and will not be affected by the illegal, invalid or unenforceable
provision or by its severance herefrom.
(j) REMEDIES. Except as otherwise expressly provided for
herein, no remedy conferred by any of the specific provisions of this Agreement
is intended to be exclusive of any other remedy, and each and every remedy shall
be cumulative and shall be in addition to every other remedy given hereunder or
now or hereafter existing at law or in equity or by statute or otherwise. The
election of any one or more remedies by any party hereto shall not constitute a
waiver by any such party of the right to pursue any other available remedies.
Damages in the event of breach of this Agreement by a party
hereto or any other holder of Registrable Securities would be difficult, if not
impossible, to ascertain, and it is therefore agreed that each such Person, in
addition to and without limiting any other remedy or right it may have, will
have the right to an injunction or other equitable relief in any court of
competent jurisdiction, enjoining any such breach, and enforcing specifically
the terms and
-26-
provisions hereof and the Company and each holder of Registrable Securities, by
its acquisition of such Registrable Securities, hereby waives any and all
defenses it may have on the ground of lack of jurisdiction or competence of the
court to grant such an injunction or other equitable relief. The existence of
this right will not preclude any such Person from pursuing any other rights and
remedies at law or in equity which such Person may have.
(k) GOVERNING LAW. THIS AGREEMENT SHALL BE CONSTRUED IN
ACCORDANCE WITH AND GOVERNED BY THE LAW OF THE STATE OF NEW YORK, INCLUDING
SECTION 5-1401 OF THE NEW YORK GENERAL OBLIGATIONS LAW.
(l) COUNTERPARTS. This Agreement may be executed in any number
of counterparts, each of which will be deemed an original, but all of which
together will constitute one and the same instrument.
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IN WITNESS WHEREOF, this Agreement has been duly executed and delivered
by the duly authorized officer of each party hereto as of the date first above
written.
XXXXXX, XXXXXX & COMPANY L.P.
By: Xxxxxx, Xxxxxx & Company, Incorporated,
its General Partner
By:
---------------------------
Name:
Title:
HVIDE MARINE INCORPORATED
By:
--------------------------
Name:
Title:
