EXHIBIT 4.5
REGISTRATION RIGHTS AGREEMENT
THIS REGISTRATION RIGHTS AGREEMENT, dated as of January 12, 1995 (this
"Agreement"), among Cal Dive International, Inc., a Minnesota corporation (the
"Company"), First Reserve Secured Energy Assets Fund, Limited Partnership, a
Delaware limited partnership ("SEA"), First Reserve Fund V, Limited Partnership,
Delaware limited partnership ("Fund V"), First Reserve Fund V-2, Limited
Partnership, a Delaware limited partnership ("Fund V-2"). First Reserve Fund VI,
Limited Partnership, a Delaware limited partnership ("Fund VI"; together with
SEA, Fund V and Fund V-2, the "Funds"), Xxxxxx X. Xxxxx, Xxxx Xxxxx and S. Xxxxx
Xxxxxx, individually (collectively, the "Executives") and as Trustees of the Cal
Dive International, Inc. Voting Trust (the "Trust").
RECITALS
The Funds, the Executives and the Company are parties to a Purchase
Agreement, dated as of the date hereof (the "Purchase Agreement"), pursuant to
which the Funds are purchasing 221,985 shares of the common stock of the Company
without par value ("Common Stock") from the Company's treasury and an aggregate
of 332,978 shares of Common Stock from the CDI Shareholders (as defined in the
Shareholders Agreement (as defined below)). In order to induce the Funds and the
Executives to enter into the Purchase Agreement, the Company has agreed to
provide the registration rights set forth in this Agreement.
The Funds, the CDI Shareholders and the Company are parties to an
Amended and Restated Shareholders Agreement, dated as of the date hereof (the
"Shareholders Agreement").
The execution and delivery of this Agreement is a condition precedent to
the obligation of the Funds to purchase Common Stock from the Company and the
CDI Shareholders pursuant to the Purchase Agreement and to enter into the
Shareholders Agreement.
AGREEMENT
NOW THEREFORE, in consideration of the mutual covenants and agreements
herein contained and other good and valuable consideration, receipt of which is
hereby acknowledged, the parties hereto agree as follows:
1. DEFINITIONS. (a) Unless otherwise defined herein, terms
defined in the Shareholders Agreement are used herein as defined therein.
For purposes of this Agreement, the following terms have the meanings set
forth below:
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"Executive Registrable Securities" means (i) any Common Stock issued to
the Executives (or their Permitted Transferees (as defined in the Shareholders
Agreement)) and/or issued in the future to other employee shareholders of the
Company and held by the Trust, (ii) any common Stock issued or issuable with
respect to the Common Stock referred to in clause (i) above by way of stock
dividend or stock split, or in connection with a combination of shares,
recapitalization, merger, consolidation, or other reorganization. and (iii) any
other shares of Common Stock held by the Executives (or their Permitted
Transferees) or by the Trust.
"Funds' Registrable Securities" means (i) any Common Stock purchased by
the Funds pursuant to the Purchase Agreement, (ii) any Common Stock issued or
issuable with respect to the Common Stock referred to in clause (i) above by way
of stock dividend or stock split or in connection with a combination of shares,
recapitalization, merger, consolidation, or other reorganization, and (iii) any
other shares of Common Stock held by the Funds.
"Registrable Securities" means the Executive Registrable Securities and
the Funds' Registrable Securities. As to any particular Registrable Securities,
such securities shall cease to be Executive Registrable Securities or Funds'
Registrable Securities, as the case may be, when they have been distributed to
the public pursuant to an offering registered under the Securities Act or sold
to the public through a broker, dealer or market maker in compliance with Rule
144 under the Securities Act (or any similar rule then in force). For purposes
of this Agreement, a holder shall be deemed to be a holder of Registrable
Securities whenever such Person has the right to acquire directly or indirectly
such Registrable Securities (upon conversion or exercise in connection with a
transfer of securities or otherwise, but disregarding any restrictions or
limitations upon the exercise of such right), whether or not such acquisition
has actually been effected.
2. DEMAND REGISTRATIONS.
(a) REQUEST FOR REGISTRATION. At any time after the earlier of (i) the
fifth anniversary of the date hereof or (ii) a Public Offering, the holders of
(x) the Funds' Registrable Securities or (y) the holders of Executive
Registrable Securities, in each case who own, in the aggregate, not less than
10% of the total outstanding shares of Common Stock, as the case may be, may
request registration under the Securities Act of all or part of their Funds'
Registrable Securities or Executive Registrable Securities, respectively. Within
ten days after receipt of any such request (which shall specify the amount of
Registrable Securities to be registered), the Company shall give written notice
of such requested registration to all other holders of Registrable Securities
and shall include in such registration all Registrable Securities with respect
to which the Company has received written requests for inclusion therein
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within 15 days after the receipt of the Company's notice. All registrations
requested pursuant to this Section 2(a) are referred to herein as -Demand
Registrations."
(b) DEMAND REGISTRATIONS. The holders of Funds' Registrable Securities
and Executive Registrable Securities will each be entitled to request two Demand
Registrations; PROVIDED, that, at the time of such request, the holders making
such request own, in the aggregate, not less than 10% of the total outstanding
shares of Common Stock. A registration will not count as one of the permitted
Demand Registrations until it has become effective, and a registration initiated
as a Demand Registration will not count as one of the permitted Demand
Registrations unless the holders of the Funds' Registrable Securities or the
Executive Registrable Securities, as the case may be, initiating such Demand
Registration are able to register and sell at least 50% of the Registrable
Securities requested by such holder to be included in such registration;
PROVIDED that in any event the Company shall pay all Registration Expenses in
connection with any registration initiated as a Demand Registration. All Demand
Registrations shall be underwritten registrations. The Company and each holder
will pay a pro rata portion of the Registration Expenses in accordance with
Section 6(c).
(c) PRIORITY ON DEMAND REGISTRATIONS. The Company shall not include in
any Demand Registration any securities which are not Registrable Securities
without the prior written consent of the holders of a majority of the
Registrable Securities initially requesting such registration. If in connection
with a Demand Registration the managing underwriters advise the Company in
writing that in their opinion the number of Registrable Securities and, if
permitted hereunder, other securities requested to be included in such offering,
exceeds the number of Registrable Securities and other securities, if any, which
can be sold in an orderly manner in such offering within a price range
acceptable to the holders of a majority of the Registrable Securities initially
requesting registration, the Company shall include in such registration (i)
first, up to 50% of the Registrable Securities requested to be included in such
registration, pro rata among the holders of such securities on the basis of the
number of Shares owned by the Funds (with respect to those Registrable
Securities requested to be included which are held by the Funds), on the one
hand, and the Executives (with respect to those Registrable Securities requested
to be included which are held by the Executives), on the other, (ii) second, all
remaining Fund Registrable Securities and any Executive Registrable Securities
requested to be included in such registration, pro rata among the holder of such
securities on the basis of the number of Shares owned by the Funds, on the one
hand, and the Executives, on the other (excluding the Funds' Registrable
Securities and the Executive Registrable Securities included pursuant to (i)
above) and (iii) third, other securities requested to be included in such
registration.
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(d) RESTRICTIONS ON DEMAND REGISTRATION. The Company shall not be
obligated to effect any Demand Registration within six months after the
effective date of a previous Demand Registration or a registration in which the
holders of Registrable Securities were given piggyback rights pursuant to
Section 3 and in which there was no reduction in the number of Registrable
Securities requested to be included. The Company may postpone for up to six
months the filing or the effectiveness of a registration statement for a Demand
Registration if the Company and the holders of a majority of each of the Funds'
Registrable Securities and the Executive Registrable Securities agree that such
Demand Registration would reasonably be expected to have an adverse effect on
any proposal or plan by the Company or any of its Subsidiaries to engage in any
acquisition of assets (other than in the ordinary course of business) or any
merger, consolidation, tender offer or similar transaction; PROVIDED that in
such event, the holders of the Funds' Registrable Securities or the Executive
Registrable Securities requesting such Demand Registration shall be entitled to
withdraw such request and, if such request is withdrawn, such Demand
Registration shall not count as a Demand Registration.
(e) SELECTION OF UNDERWRITERS. The holders of a majority of the
Registrable Securities included in any Demand Registration shall have the right
to recommend the investment banker(s) and manager(s) to administer the offering,
subject to the approval of a majority of the Board which shall not be
unreasonably withheld; PROVIDED, that if any of the Funds' Registrable
Securities are to be included in such Demand Registration, such underwriter
shall be acceptable to the Funds.
(f) OTHER REGISTRATION RIGHTS. Except as provided in this Agreement, the
Company shall not grant to any Person the right to request the Company to
register any equity securities of the Company, or any securities convertible or
exchangeable into or exercisable for such securities, without the prior written
consent of the holders of a majority of each of the Funds' Registrable
Securities and the Executive Registrable Securities; PROVIDED that the Company
may grant rights to other Persons to (i) participate in Piggyback Registrations
so long as such rights are subordinate to the rights of the holders of
Registrable Securities with respect to such Piggyback Registrations and (ii)
request registrations so long as the holders of Registrable Securities are
entitled to participate in any such registrations with such Persons pro rata on
the basis of the number of Shares owned by such Persons and such participating
holders of Registrable Securities (assuming for this purpose that all Shares
owned by all Funds are aggregated, on the one hand, and all Shares owned by all
Executives are aggregated, on the other hand).
(g) REGISTRATION STATEMENT FORM. If any registration requested
pursuant to this Section 2 which is proposed by the Company to be effected
by the filing of a registration statement on Form S-3 (or any successor or
similar short-form registration statement) shall be in connection with an
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underwritten public offering, and if the managing underwriter shall advise the
Company in writing that, in its opinion, the use of another form of registration
statement is of material importance to the success of such proposed offering,
then such registration shall be effected on such other form.
(h) EFFECTIVE REGISTRATION STATEMENT. A registration requested pursuant
to this Section 2 will not be deemed to have been effected unless it has become
effective; PROVIDED that if within 180 days after it has become effective, the
offering of Registrable Securities pursuant to such registration is interfered
with by any stop order, injunction or other order or requirement of the
Securities and Exchange Commission or other governmental agency or court, such
registration will be deemed not to have been effected.
3. PIGGYBACK REGISTRATIONS.
(a) RIGHT TO PIGGYBACK. Whenever the Company proposes to register any of
its securities under the Securities Act (other than pursuant to a Demand
Registration) and the registration form to be used may be used for the
registration of Registrable Securities (a "Piggyback Registration"}, the Company
shall give prompt written notice (in any event within three business days after
its receipt of notice of any exercise of demand registration rights other than
under this Agreement) to all holders of Registrable Securities (and to other
holders of such securities) of its intention to effect such a registration and
shall include in such registration all Registrable Securities with respect to
which the Company has received written requests for inclusion therein within 15
days after such holder's receipt of the Company's notice.
(b) PIGGYBACK EXPENSES. The Registration Expenses of the holders
of Registrable Securities shall be paid by the Company in all Piggyback
Registrations.
(c) PRIORITY ON PRIMARY REGISTRATIONS. If a Piggyback Registration is an
underwritten primary registration on behalf of the Company, and the managing
underwriters advise the Company in writing that in their opinion the number of
securities requested to be included in such registration exceeds the number
which can be sold in an orderly manner in such offering within a price range
acceptable to the holders of a majority of the Registrable Securities initially
requested to be included in such registration, the Company shall include in such
registration (i) first, the securities the Company proposes to sell, (ii)
second, the Funds' Registrable Securities and the Executive Registrable
Securities requested to be included in such registration, pro rata among the
holders of such securities on the basis of the number of shares owned by each
such holder (assuming for this purpose that all Shares owned by all Funds are
aggregated, on the one hand, and all Shares owned by all Executives are
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aggregated, on the other hand) and (iii) third, other securities requested to be
included in such registration.
(d) PRIORITY ON SECONDARY REGISTRATIONS. If a Piggyback Registration is
an underwritten secondary registration on behalf of holders of the Company's
securities, and the managing underwriters advise the Company in writing that in
their opinion the number of securities requested to be included in such
registration exceeds the number which can be sold in an orderly manner in such
offering within a price range acceptable to the holders of a majority of the
securities initially requesting such registration, the Company shall include in
such registration (i) first, the securities requested to be included therein by
the holders requesting such registration and the Funds' Registrable Securities
and the Executive Registrable Securities requested to be included in such
registration, pro rata among the holders of such securities on the basis of the
number of shares owned by each such holder (assuming for this purpose that
securities owned by all Funds, on the one hand, and all Executives, on the other
hand, are aggregated) and (ii) second, other securities requested to be included
in such registration.
(e) OTHER REGISTRATIONS. If the Company has previously filed a
registration statement with respect to Registrable Securities pursuant to
Section 2 or pursuant to this Section 3, and if such previous registration has
not been withdrawn or abandoned, the Company shall not file or cause to be
effected any other registration of any of its equity securities or securities
convertible or exchangeable into or exercisable for its equity securities under
the Securities Act (except on Form S-8 or any successor form), whether on its
own behalf or at the request of any holder or holders of such securities, until
a period of at least six months has elapsed from the effective date of such
previous registration.
4. HOLDBACK AGREEMENTS.
(a) Each holder of Registrable Securities agrees not to effect any
public sale or distribution (including sales pursuant to Rule 144) of equity
securities of the Company, or any securities convertible into or exchangeable or
exercisable for such securities, during the seven days prior to and the 90-day
period beginning on the effective date of any underwritten Demand Registration
or any underwritten Piggyback Registration in which Registrable Securities are
included (except as part of such underwritten registration), unless the
underwriters managing the registered public offering otherwise agree.
(b) The Company agrees (i) 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 seven days prior to and during the
90-day period beginning on the effective date of any underwritten Demand
Registration or any underwritten Piggyback
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Registration (except as part of such underwritten registration or pursuant to
registrations on Form S-8 or any successor form), unless the underwriters
managing the registered public offering otherwise agree, and (ii) to cause each
holder of at least 2% (on a fully-diluted basis) of its equity securities, or
any securities convertible into or exchangeable or exercisable for such
securities, purchased from the Company at any time after the date hereof (other
than in a registered public offering) to agree not to effect any public sale or
distribution (including sales pursuant to Rule 144) of any such securities
during such period (except as part of such underwritten registration, if
permitted herein), unless the underwriters managing the registered public
offering otherwise agree.
5. REGISTRATION PROCEDURES.
(a) Whenever the holders of Registrable Securities have requested that
any Registrable Securities be registered pursuant to this Agreement, the Company
shall use its best efforts to effect the registration and the sale of such
Registrable Securities in accordance with the intended method of disposition
thereof, and pursuant thereto the Company shall as expeditiously as possible:
(i) prepare and file with the Securities and Exchange Commission a
registration statement with respect to such Registrable Securities and
use its best efforts to cause such registration statement to become
effective (provided that before filing a registration statement or
prospectus or any amendments or supplements thereto, the Company shall
furnish to the counsel selected by the holders of a majority of the
Funds' Registrable Securities covered by such registration statement
copies of all such documents proposed to be filed, which documents shall
be subject to the review and approval of such counsel);
(ii) prepare and file with the Securities and Exchange Commission
such amendments and supplements to such registration statement and the
prospectus used in connection therewith as may be necessary to keep such
registration statement effective for a period of not less than six
months and comply with the provisions of the Securities Act, the
Securities Exchange Act of 1934, as amended (the "Exchange Act"), and
the rules and regulations promulgated thereunder with respect to the
disposition of all securities covered by such registration statement
during such period in accordance with the intended methods of
disposition by the sellers thereof set forth in such registration
statement;
(iii) furnish to each seller of Registrable Securities such number
of copies of such registration statement, each amendment and supplement
thereto (in each case including all exhibits), the
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prospectus included in such registration statement (including each
preliminary prospectus and summary prospectus) in conformity with the
requirements of the Securities Act, and such other documents as such
seller may reasonably request in order to facilitate the disposition of
the Registrable Securities owned by such seller;
(iv) use its best efforts to register or qualify such Registrable
Securities under such other securities or blue sky laws of such
jurisdictions as any seller and the managing underwriter or underwriters
may reasonably request and do any and all other acts and things which
may be reasonably necessary or advisable to enable such seller to
consummate the disposition in such jurisdictions of the Registrable
Securities owned by such seller; PROVIDED that the Company shall not be
required to (i) qualify generally to do business in any jurisdiction
where it would not otherwise be required to qualify but for this
subsection, (ii) subject itself to taxation in any such jurisdiction or
(iii) consent to general service of process in any such jurisdiction;
(v) notify each seller of such Registrable Securities and the
managing underwriter or underwriters, 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 the prospectus
included in such registration statement contains an untrue statement of
a material fact or omits to state any fact required to be stated therein
to make the statements therein not misleading in the light of the
circumstances then existing, and, at the request of any such seller, the
Company shall prepare a supplement or amendment to such prospectus so
that, as thereafter delivered to the purchasers of such Registrable
Securities, such prospectus shall not contain an untrue statement of a
material fact or omit to state any fact required to be stated therein to
make the statements therein not misleading in the light of the
circumstances then existing;
(vi) cause all such Registrable Securities to be listed on each
securities exchange on which similar securities issued by the Company
are then listed and, if not so listed, to be listed on the NASD
automated quotation system;
(vii) provide a transfer agent and registrar for all such
Registrable Securities not later than the effective date of such
registration statement;
(viii) enter into such customary agreements (including underwriting
agreements in customary form) and take all such other actions as the
holders of a majority of the Registrable Securities being sold or the
underwriters, if any, reasonably request in order
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to expedite or facilitate the disposition of such Registrable
Securities (including effecting a stock split or a combination of
shares);
(ix) make available for inspection by any seller of Registrable
Securities, 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, all financial and other
records, pertinent corporate documents and properties of the Company,
and cause the Company's officers, directors, employees and independent
accountants to supply all information reasonably requested by any such
seller, underwriter, attorney, accountant or agent in connection with
such registration statement;
(x) otherwise use its best efforts to comply with all applicable
rules and regulations of the Securities and Exchange Commission, and
make available to its security holders, as soon as reasonably
practicable, an earnings statement covering the period of at least
twelve months beginning with the first day of the Company's first full
calendar quarter after the effective date of the registration statement,
which earnings statement shall satisfy the provisions of Section 11(a)
of the Securities Act and the rules and regulations promulgated
thereunder;
(xi) obtain a cold comfort letter from the Company's independent
public accountants in customary form and covering such matters of the
type customarily covered by cold comfort letters as the holders of a
majority of the Registrable Securities being sold reasonably request
(provided that such Registrable Securities constitute at least 10% of
the securities covered by such registration statement); and
(xii) if any such registration or comparable statement refers to
any holder of Funds' Registrable Securities by name or otherwise as the
holder of any securities of the Company and if in its sole and exclusive
judgment, such holder is or might be deemed to be a controlling person
of the Company, such holder shall have the right to require (i) the
insertion therein of language, in form and substance satisfactory to
such holder and presented to the Company in writing, to the effect that
the holding by such holder of such securities is not to be construed as
a recommendation by such holder of the investment quality of the
Company's securities covered thereby and that such holding does not
imply that such holder shall assist in meeting any future financial
requirements of the Company or (ii) in the event that such reference to
such holder by name or otherwise is not required by the Securities Act
or any similar federal statute then in force, the deletion of the
reference to such holder; PROVIDED
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that with respect to this clause (ii) such holder shall furnish to the
Company an opinion of counsel to such effect, which opinion and counsel
shall be reasonably satisfactory to the Company.
(b) Each seller of Registrable Securities agrees that, upon receipt of
any notice from the Company of the happening of any event of the type described
in clause (v) of Section 5(a) hereof, such seller shall forthwith discontinue
disposition of such Registrable Securities covered by such registration
statement or related prospectus until such seller's receipt of the copies of the
supplemental or amended prospectus contemplated by clause (v) of Section 5(a)
hereof, and, if so directed by the Company, such seller will deliver to the
Company (at the Company's expense) all copies, other than permanent file copies
then in such seller's possession, of the prospectus covering such Registrable
Securities current at the time of receipt of such notice. In the event the
Company shall give any such notice, the period mentioned in clause (ii) of
Section 5(a) hereof shall be extended by the number of days during the period
from and including the date of the giving of such notice pursuant to clause (v)
of Section 5(a) hereof and including the date when each seller of Registrable
Securities shall have received the copies of the supplemental or amended
prospectus contemplated by clause (v) of Section 5(a) hereof.
(c) Each seller of Registrable Securities agrees to provide the Company,
upon receipt of its request, with such information about such seller to enable
the Company to comply with the requirements of the Securities Act and to execute
such certificates as the Company may reasonably request in connection with such
information and otherwise to satisfy any requirements of law.
6. REGISTRATION EXPENSES.
(a) All expenses incident to the Company's performance of or compliance
with this Agreement, including all registration and filing fees, fees and
expenses of compliance with securities or blue sky laws, printing expenses,
messenger and delivery expenses, and fees and disbursements of counsel for the
Company and all independent certified public accountants, underwriters
(excluding discounts and commissions) and other Persons retained by the Company
(all such expenses being herein called "Registration Expenses"), shall be borne
as provided in this Agreement, except that the Company shall, in any event, pay
its internal expenses (including all salaries and expenses of its officers and
employees performing legal or accounting duties), the expense of any annual
audit or quarterly review, the expense of any liability insurance and the
expenses and fees for listing the securities to be registered on each securities
exchange on which similar securities issued by the Company are then listed or,
if not so listed, on the NASD automated quotation system.
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(b) In connection with each Demand Registration and each Piggyback
Registration, the Company shall reimburse the holders of Registrable Securities
covered by such registration for the reasonable fees (not exceeding, in the
aggregate, $25,000 for each registration) and disbursements of one counsel
chosen by the holders of a majority of the Funds' Registrable Securities.
(c) To the extent Registration Expenses are not required to be paid by
the Company, each holder of securities included in any registration hereunder
shall pay those Registration Expenses allocable to the registration of such
holder's securities so included, and any Registration Expenses not so allocable
shall be borne by all sellers of securities included in such registration in
proportion to the aggregate selling price of the securities to be so registered.
7. INDEMNIFICATION.
(a) The Company agrees to indemnify, to the extent permitted by law,
each holder of Registrable Securities, its officers and directors or general and
limited partners and each Person who controls such holder (within the meaning of
the Securities Act) against any and all losses, claims, damages, liabilities and
expenses arising out of or based upon (i) any untrue or alleged untrue statement
of material fact contained in any registration statement, prospectus or
preliminary prospectus or any amendment thereof or supplement thereto or (ii)
any omission or alleged omission of a material fact required to be stated
therein or necessary to make the statements therein not misleading in the light
of the circumstances then existing, and the Company will reimburse such Persons
for any legal or any other expenses reasonably incurred by it in connection with
investigating or defending any such loss, claim, liability, action or
proceeding; PROVIDED, that the Company shall not be liable to any Person in any
such case to the extent that any such loss, claim, damage, liability (or action
or proceeding in respect thereof) or expense arises out of or is based upon any
untrue statement or alleged untrue statement or omission or alleged omission
made in such registration statement or amendment or supplement thereto or in any
such preliminary, final or summary prospectus in reliance upon and in conformity
with written information with respect to such seller furnished to the Company by
such seller for use in the preparation thereof. In connection with an
underwritten offering, the Company shall indemnify such underwriters, their
officers and directors and each Person who controls such underwriters (within
the meaning of the Securities Act) to the same extent as provided above with
respect to the indemnification of the holders of Registrable Securities.
(b) In connection with any registration statement in which a holder of
Registrable Securities is participating, each such holder shall furnish to the
Company in writing such information and affidavits as the Company reasonably
requests for use in connection with any such registration
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statement or prospectus and, to the extent permitted by law, shall indemnify the
Company, its directors and officers and each Person who controls the Company
(within the meaning of the Securities Act) against any losses, claims, damages,
liabilities and expenses resulting from any untrue or alleged untrue statement
of material fact contained in the registration statement, prospectus or
preliminary prospectus or any amendment thereof or supplement thereto or any
omission or alleged omission of a material fact required to be stated therein or
necessary to make the statements therein not misleading, but only to the extent
that such untrue statement or omission is contained in any information or
affidavit so furnished in writing by such holder; PROVIDED that the obligation
to indemnify shall be individual to each holder and shall be limited to the net
amount of proceeds received by such holder from the sale of Registrable
Securities pursuant to such registration statement.
(c) Any Person entitled to indemnification hereunder shall (i) give
prompt written notice to the indemnifying party of any claim with respect to
which it seeks indemnification; PROVIDED, that the failure of the indemnified
party to give notice as provided herein shall not relieve the indemnifying party
of its obligations under the preceding subsections of this Section 7, except to
the extent that the indemnifying party is actually prejudiced by such failure to
give notice and (ii) unless in such indemnified party's reasonable judgment a
conflict of interest between such indemnified and indemnifying parties may exist
with respect to such claim, permit such indemnifying party to assume the defense
of such claim with counsel reasonably satisfactory to the indemnified party. If
such defense is assumed, the indemnifying party shall not be subject to any
liability for any settlement made by the indemnified party without its consent
(but such consent shall not be unreasonably withheld). An indemnifying party who
is not entitled to, or elects not to, assume the defense of a claim shall not be
obligated to pay the fees and expenses of more than one counsel for all parties
indemnified by such indemnifying party 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 of such indemnified parties With
respect to such claim.
(d) The indemnification provided for under this Agreement shall remain
in full force and effect regardless of any investigation made by or on behalf of
the indemnified party or any officer, director or controlling Person of such
indemnified party and shall survive the transfer of securities. The Company also
agrees to make such provisions, as are reasonably requested by any indemnified
party, for contribution to such party in the event the Company's indemnification
is unavailable for any reason.
(e) Indemnification similar to that specified in the preceding
subsections of this Section 7 (with appropriate modifications) shall be given by
the Company and each seller of Registrable Securities with respect
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to any required registration or other qualification of securities under any
federal or state law or regulation or governmental authority other than the
Securities Act.
(f) The obligations of the parties under this Section 7 shall be in
addition to any liability which any party may otherwise have to any other party.
8. PARTICIPATION IN UNDERWRITTEN REGISTRATIONS. No Person may
participate in any registration hereunder which is underwritten unless such
Person (a) agrees to sell such Person's securities on the basis provided in any
underwriting arrangements approved by the Person or Persons entitled hereunder
to approve such arrangements and (b) completes and executes all questionnaires,
powers of attorney, indemnities, underwriting agreements and other documents
required under the terms of such underwriting arrangements; PROVIDED that no
holder of Registrable Securities included in any underwritten registration shall
be required to make any representations or warranties to the Company or the
underwriters other than representations and warranties regarding such holder and
such holder's intended method of distribution.
9. RULE 144. If the Company shall have filed a registration statement
pursuant to the requirements of Section 12 of the Exchange Act or a registration
statement pursuant to the requirements of the Securities Act, the Company
covenants that it will file the reports required to be filed by it under the
Securities Act and the Exchange Act and the rules and regulations promulgated
thereunder (or, if the Company is not required to file such reports, it will,
upon the request of any holder of Shares, make publicly available such
information), and it will take such further action as any holder may reasonably
request, all to the extent required from time to time to enable such holder to
sell Registrable Securities without registration under the Securities Act within
the limitation of the exemptions provided by (a) Rule 144 under the Securities
Act, as such Rule may be amended from time to time, or (b) any similar rule or
regulation hereafter adopted by the Securities and Exchange Commission. Upon the
request of any holder of Shares, the Company will deliver to such holder a
written statement as to whether it has complied with such requirements.
Notwithstanding anything contained in this Section 9, the Company may deregister
under Section 12 of the Exchange Act if it then is permitted to do so pursuant
to the Exchange Act and the rules and regulations promulgated thereunder.
10. MISCELLANEOUS.
(a) NO INCONSISTENT AGREEMENTS. The Company shall not hereafter enter
into any agreement with respect to its securities which is inconsistent with or
violates the rights granted to the holders of Registrable Securities under this
Agreement.
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(b) ADJUSTMENTS AFFECTING REGISTRABLE SECURITIES. The Company shall not
take any action, or permit any change to occur, with respect to its securities
which would materially and adversely affect the ability of the holders of
Registrable Securities to include such Registrable Securities in a registration
undertaken pursuant to this Agreement or which would materially and adversely
affect the marketability of such Registrable Securities in any such registration
(including effecting a stock split or a combination of shares).
(c) REMEDIES. Any Person having any rights under any provision of this
Agreement shall be entitled to enforce such rights specifically, to recover
damages caused by reason of any breach of any provision of this Agreement and to
exercise all other rights granted by law. The parties hereto agree and
acknowledge that money damages may not be an adequate remedy for any breach of
the provisions of this Agreement and that any party may in its sole discretion
apply to any court of law or equity of competent jurisdiction (without posting
any bond or other security) for specific performance and for other injunctive
relief in order to enforce or prevent violation of the provisions of this
Agreement.
(d) CONSENT TO AMENDMENTS. Except as otherwise expressly provided
herein, no modification, amendment or waiver or any provision of this Agreement
shall be effective against the Company or the holders of the Registrable
Securities unless such modification, amendment or waiver is approved in writing
by the Company, the holders of a majority of the Funds' Registrable Securities,
and with respect to any amendment materially and adversely affecting the rights
of the holders of the Executive Registrable Securities, the holders of a
majority of the Executive Registrable Securities. The failure of any party to
enforce any of the provisions of this Agreement shall not affect the right of
such party thereafter to enforce each and every provision of this Agreement in
accordance with its terms.
(e) SUCCESSORS AND ASSIGNS. The provisions of this Agreement shall be
binding upon and shall inure to the benefit of the parties hereto and their
respective successors and assigns; provided that the rights granted under this
Agreement to the holders of Registrable Securities may not be assigned by them
except as permitted by Section 4.6 of the Shareholders Agreement. In addition,
whether or not any express assignment has been made, the provisions of this
Agreement which are for the benefit of purchasers or holders of Registrable
Securities are also for the benefit of, and enforceable by, any subsequent
holder of Registrable Securities.
(f) SEVERABILITY. Any provision of this Agreement which is prohibited or
unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective
to the extent of such prohibition or unenforceability without invalidating the
remaining provisions hereof, and any such prohibition or unenforceability in any
jurisdiction shall not
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invalidate or render unenforceable such provisions in any other jurisdiction.
(g) COUNTERPARTS. This Agreement may be executed in two or more
counterparts, and by different parties on separate counterparts, each of which
shall be deemed an original, but all of which shall constitute one and the same
agreement.
(H) GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED
AND INTERPRETED IN ACCORDANCE WITH, THE LAW OF THE STATE OF MINNESOTA WITHOUT
REGARD TO THE PRINCIPLES OF CONFLICTS OF LAWS THEREOF.
(i) SECTION HEADINGS. The Section headings of this Agreement are
inserted for convenience only and do not constitute a part of this
Agreement.
(j) NOTICES. All notices, requests and demands to or upon the respective
parties hereto to be effective shall be in writing and shall be either
personally delivered or sent by reputable overnight courier service (charges
prepaid) or by confirmed facsimile transmission to the recipient at the address
for such recipient provided in the Purchase Agreement and to any subsequent
holder of Registrable Securities subject to this Agreement at such address as
indicated by the Company's records, or at such address or to the attention of
such other Person as the recipient party has specified by prior written notice
to the sending party. Notices shall be deemed to have been given hereunder when
delivered personally or by confirmed facsimile transmission and one day after
deposit with a reputable overnight courier service.
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IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first written above.
CAL DIVE INTERNATIONAL, INC.
By:
Name:
Title:
FIRST RESERVE SECURED ENERGY ASSETS
FUND, LIMITED PARTNERSHIP
By: FIRST RESERVE CORPORATION, as
General Partner
By:
Name:
Title:
FIRST RESERVE FUND V-2, LIMITED
PARTNERSHIP
By: FIRST RESERVE CORPORATION,
as General Partner
By:
Name:
Title:
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FIRST RESERVE FUND VI, LIMITED
PARTNERSHIP
By: FIRST RESERVE CORPORATION, as
General Partner
By:
Name:
Title:
EXECUTIVES
Xxxxxx X. Xxxxx
Xxxx Xxxxx
S. Xxxxx Xxxxxx
CAL DIVE INTERNATIONAL, INC.
VOTING TRUST
By:
Name:
Title:
By:
Name:
Title:
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