EXHIBIT 4(2)
THIS REGISTRATION RIGHTS AGREEMENT, dated as of December 17, 1996 (this
"Agreement"), is by and among Offshore Logistics, Inc., a Delaware corporation
(the "Company"), Xxxxxxxxx & Company, Inc. ("Jefferies"), Xxxxxxx & Company
International ("SCI") and Xxxxxxx Rice & Company L.L.C. ("JRC" and, together
with Jefferies and SCI, the "Purchasers").
RECITALS
WHEREAS, the Company and the Purchasers have entered into a Purchase
Agreement, dated December 11, 1996 (the "Purchase Agreement"), providing for,
among other things, the sale by the Company and the purchase by the Purchasers
of an aggregate of $80,000,000 principal amount, and, at the election of the
Purchasers, up to an aggregate of $10,500,000 additional principal amount, of
the Company's 6% Convertible Subordinated Notes due 2003, convertible into
shares of Common Stock (as defined herein) of the Company as provided in the
Indenture (as defined herein); and
WHEREAS, this Agreement is being entered into pursuant to the Purchase
Agreement as a condition to the closing of the sale of the Securities (as
defined herein) pursuant thereto;
NOW, THEREFORE, in consideration of the premises, and of the mutual
covenants, representations, warranties and agreements herein contained, the
parties hereto agree as follows:
1. CERTAIN DEFINITIONS.
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As used in this Agreement, the following terms shall have the following
respective meanings:
(a) "Closing Date" shall mean (i) the First Time of Delivery as defined in
the Purchase Agreement and (ii) the Issue Date as defined in the Indenture.
(b) "Commission" shall mean the Securities and Exchange Commission, or any
other federal agency at the time administering the Exchange Act or the
Securities Act, whichever is the relevant statute for the particular purpose.
(c) "Common Stock" means the Common Stock, par value $.01 per share, of the
Company, and any securities of the Company or any successor which may be
issuable upon conversion of the Securities pursuant to Article Thirteen of the
Indenture.
(d) "Effective Time" shall mean the date on which the Commission declares
the Registration Statement effective or on which the Registration Statement
otherwise becomes effective.
(e) "Exchange Act" shall mean the Securities Exchange Act of 1934, or any
successor thereto, as the same shall be amended from time to time.
(f) The term "holder" shall mean any person that is the record owner of
Registrable Securities or any person that has a beneficial interest in a global
security representing Registerable Securities.
(g) "Indenture" shall mean the Indenture, dated as of December 15, 1996,
between the Company and Fleet National Bank, as Trustee, as amended and
supplemented from time to time in accordance with its terms.
(h) The term "managing underwriter or underwriters" shall mean the person
or persons selected pursuant to Section 7(a) of this Agreement to manage an
underwritten offering of Registrable Securities.
(i) The term "person" shall have the meaning specified in the Indenture.
(j) "Prospectus" shall mean the prospectus (including any preliminary
prospectus and any final prospectus) included in any Registration Statement, as
amended or supplemented by any prospectus supplement with respect to the terms
of the offering of any portion of the Registrable Securities covered by the
Registration Statement and by all other amendments and supplements to such
prospectus, including all material incorporated by reference in such prospectus
and all documents filed after the date of such prospectus by the Company under
the Exchange Act and incorporated by reference therein.
(k) "Registrable Securities" shall mean all or any portion of the
Securities issued under the Indenture and the shares of Common Stock issuable
upon conversion of such Securities; provided, however, that a security ceases to
be a Registrable Security when it is no longer a Restricted Security.
(l) "Registration Expenses" shall have the meaning assigned thereto in
Section 4 of this Agreement.
(m) "Registration Statement" shall mean a "shelf" registration statement
filed under the Securities Act providing for the registration of, and the sale
on a continuous or delayed basis by the holders of, all of the Registrable
Securities pursuant to Rule 415 under the Securities Act and/or any similar rule
that may be adopted by the Commission, filed by the Company pursuant to the
provisions of Section 2 of this Agreement, including the Prospectus contained
therein, any amendments and supplements to such registration statement,
including post-effective amendments, and all exhibits and all material
incorporated by reference in such registration statement.
(n) "Restricted Security" shall mean any Security or share of Common Stock
issuable upon conversion thereof unless or until (i) it has been effectively
registered under the Securities Act and sold in a manner contemplated by the
Registration Statement, (ii) it has been transferred in compliance with Rule 144
under the Securities Act (or any successor provision thereto) or (iii) it has
otherwise been transferred and a new Security or share of Common Stock not
subject to transfer restrictions under the Securities Act has been delivered by
or on behalf of the Company in accordance with Section 305 of the Indenture.
(o) "Rules and Regulations" shall mean the published rules and regulations
of the Commission promulgated under the Securities Act or the Exchange Act, as
in effect at any relevant time.
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(p) "Security" or "Securities" shall mean the Company's 6% Convertible
Subordinated Notes due 2003, to be issued pursuant to the Indenture and sold,
either pursuant to the Purchase Agreement or to Caledonia Industrial & Services
Limited in connection with the Xxxxxxx Transaction (as defined in the Offering
Circular, which, in turn, is defined in the Purchase Agreement) and any
securities issued in exchange therefor or in lieu thereof pursuant to the
Indenture.
(q) "Securities Act" shall mean the Securities Act of 1933, as amended, or
any successor thereto, as the same shall be amended from time to time.
(r) "Trust Indenture Act" shall mean the Trust Indenture Act of 1939, as
amended, or any successor thereto, and the rules, regulations and forms
promulgated thereunder, all as the same shall be amended from time to time.
(s) The term "underwriter" shall hereinafter mean any underwriter of an
underwritten offering of Registrable Securities.
(t) Wherever there is a reference in this Agreement to a percentage of the
"principal amount" of the Registrable Securities or to a percentage of
Registrable Securities, Common Stock that constitutes a Registrable Security
shall be treated as representing the principal amount of Securities which was
surrendered for conversion in order to receive such number of shares of Common
Stock.
2. REGISTRATION UNDER THE SECURITIES ACT.
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(a) The Company shall, at its expense, within 90 calendar days following
the Closing Date, file with the Commission a Registration Statement with respect
to the Registrable Securities as to which the Company has obtained the
information contemplated by Section 3(d) and thereafter shall use its reasonable
best efforts to cause such Registration Statement to be declared effective by
the Commission under the Securities Act within 180 calendar days after the
Closing Date.
(b) Subject to Section 2(c) hereof, the Company shall use its reasonable
best efforts, and will file such supplements or amendments to the Registration
Statement as may be necessary or appropriate, to keep the Registration Statement
continuously effective under the Securities Act and usable by holders for
resales of Registrable Securities for a period of three years from the Effective
Time or, such shorter period that will terminate upon the earlier of the
following: (i) when there are no outstanding Registrable Securities and (ii)
when, in the written opinion of Fulbright & Xxxxxxxx L.L.P. or other independent
counsel to the Company, all outstanding Registrable Securities held by persons
that are not "affiliates" of the Company (as defined in Rule 144(a)(1) under the
Securities Act) may be resold without registration under the Securities Act
pursuant to Rule 144(k) under the Securities Act (or any successor provision to
such Rule) (and thereupon the Company shall remove all legends from the
Registrable Securities restricting the transfer thereof (other than any
Registrable Securities held by an affiliate)).
(c) (i) If the Company determines in its good faith judgment that the
filing of any supplement or amendment to the Registration Statement to keep such
Registration Statement continuously effective under the Securities Act during
the Effectiveness Period and usable by holders for resales of Registrable
Securities, would require the disclosure of material information that the
Company has a bona fide business purpose for preserving as confidential or the
disclosure of which would materially adversely affect the Company's
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ability to consummate a significant transaction, upon written notice of such
determination by the Company to the holders of the Registrable Securities, the
obligation of the Company to supplement or amend the Registration Statement
(including any action contemplated by Section 3 hereof) will be suspended until
the Company notifies the holders in writing that the reasons for suspension of
such obligations on the part of the Company as set forth in this Section 2(c)(i)
no longer exist; provided, however, that no such suspension shall last more than
60 consecutive days.
(ii) If the Company initiates and is in good faith pursuing an underwritten
primary offering of equity securities (as defined in Rule 405 under the
Securities Act) (which primary offering may also include secondary sales of
securities of the Company) on a registration statement (other than any
registration by the Company on Form S-8, or a successor or substantially similar
form, of an employee stock option, stock purchase or compensation plan or of
securities issued or issuable pursuant to any such plan), upon written notice
thereof by the Company to the holders the obligation of the Company to
supplement or amend the Registration Statement shall be suspended during the
registration period of such underwritten primary offering.
(d) Notwithstanding the provisions of Section 2(c) hereof, the aggregate
number of days (whether or not consecutive) during which the Company may delay
the filing of any such supplement or amendment shall in no event exceed 90 days
during any period of 12 consecutive months and the right of the Company to
suspend its obligation to supplement or amend the Registration Statement under
Section 2(c) shall not limit any obligation the Company may have to pay
additional interest pursuant to Section 1007 of the Indenture.
3. REGISTRATION PROCEDURES.
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(a) Prior to or at the Effective Time the Company shall use its reasonable
best efforts to qualify the Indenture under the Trust Indenture Act; in
connection with such qualification, the Company shall cooperate with the trustee
under the Indenture and the Holders (as defined in the Indenture) to effect such
changes to the Indenture as may be required for such Indenture to be so
qualified in accordance with the terms of the Trust Indenture Act; and the
Company shall execute, and use all reasonable efforts to cause the trustee under
the Indenture to execute, all documents that may be required to effect such
changes and other forms and documents required to be filed with the Commission
to enable such Indenture to be so qualified in a timely manner.
(b) In the event that any such amendment or modification referred to in
Section 3(a) hereof involves the appointment of a new trustee under the
Indenture, the Company shall appoint a new trustee thereunder pursuant to the
applicable provisions of the Indenture.
(c) In connection with the Company's obligations with respect to the
Registration Statement, the Company shall use its reasonable best efforts to
effect or cause the Registration Statement to permit the sale of the Registrable
Securities by the holders thereof in accordance with the intended method or
methods of distribution thereof described in the Registration Statement;
provided, however, that such method or methods of distribution may take the form
of an underwritten offering of the Registrable Securities only as provided in
Section 7 hereof. In connection therewith, the Company shall, as promptly as
possible:
(i) before filing a Registration Statement or Prospectus or any amendments
or supplements thereto, including documents incorporated by reference in the
Registration
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Statement, offer to provide, and if requested, furnish to the holders of the
Registrable Securities covered by such Registration Statement and the managing
underwriter or underwriters, if any, of Registrable Securities being sold in an
underwritten offering copies of all such documents proposed to be filed,
together with copies of documents previously filed with the Commission and
proposed to be incorporated by reference in the Registration Statement, which
Registration Statement or Prospectus or any supplement or amendment thereto (but
not any document incorporated by reference therein) will be subject to the
review of such holders and managing underwriter or underwriters, and the Company
will not file the Registration Statement or any amendment thereto or any
Prospectus or any supplement thereto (including documents filed with the
Commission under the Exchange Act after the initial filing of the Registration
Statement and incorporated by reference in the Registration Statement) to which
any of the Purchasers or, if none of the Purchasers is a selling holder, the
holders of at least 20% in aggregate principal amount of the Registrable
Securities covered by such Registration Statement or the managing underwriter or
underwriters, if any, shall reasonably object; provided, however, that the
Company may assume, for the purposes of this subparagraph (i), that objections
to the inclusion of information specifically requested to be included in the
Registration Statement or other documents by the staff of the Commission, or in
the opinion of counsel to the Company required to be in the Registration
Statement or other documents, or specifically required by the Securities Act or
the Rules and Regulations, shall not be deemed to be reasonable;
(ii) for a reasonable period prior to the filing of the Registration
Statement and throughout the period specified in Section 2(b) hereof, make
available for inspection (solely for the purpose of verifying the accuracy of
information contained in the Registration Statement) by a representative or
representatives of the Purchasers or, if none of the Purchasers is then a
holder, the holders of not less than 20% of the principal amount of the
Registrable Securities, any underwriter participating in any disposition
pursuant to a Registration Statement, and any attorney or accountant retained by
any of the Purchasers or such selling holders or underwriter, all relevant
financial and other records, pertinent corporate documents and properties of the
Company, and cause the Company's officers, directors, employees and agents,
including independent public accounts and counsel, to supply all information
reasonably requested by any such representative, underwriter, attorney or
accountant in connection with such Registration Statement; provided, however,
that any records, information or documents that are designated by the Company in
writing as confidential shall be kept confidential by such persons unless
disclosure of such records, information or documents is required by court or
administrative order;
(iii) subject to the provisions of Section 2(c) above, prepare and file
with the Commission such amendments and post-effective amendments to the
Registration Statement, and such supplements to the Prospectus, as may be
required by the Rules and Regulations or the instructions applicable to the
registration form utilized by the Company or by the Securities Act or otherwise
necessary to keep the Registration Statement effective for the period specified
in Section 2(b) and cause the Prospectus as so supplemented to be filed pursuant
to Rule 424 under the Securities Act; and comply with the provisions of the
Securities Act with respect to the disposition of all Registrable Securities
covered by such Registration Statement during the period specified in Section
2(b) in accordance with the intended methods of disposition by the sellers
thereof set forth in such Registration Statement or supplement to the
Prospectus;
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(iv) notify the selling holders of Registrable Securities and the managing
underwriter or underwriters, if any, promptly, and confirm such advice in
writing,
(A) when the Registration Statement, any pre-effective amendment thereto,
the Prospectus or any prospectus supplement or post-effective amendment to the
Registration Statement has been filed, and, with respect to the Registration
Statement or any post-effective amendment, when the same has become effective,
(B) of any comments by the Commission or the "Blue Sky" or securities
commissioners or regulator of any State with respect to the Registration
Statement, the Prospectus or any prospectus supplement or any request by the
Commission or any securities commissioner or regulator for amendments or
supplements to the Registration Statement, the Prospectus or any prospectus
supplement or for additional information,
(C) of the issuance by the Commission of any stop order suspending the
effectiveness of the Registration Statement or the initiation or threatening of
any proceedings for that purpose,
(D) if at any time the representations and warranties of the Company
contemplated by subparagraph (xiv) below or Section 5 hereof cease to be true
and correct,
(E) of the receipt by the Company of any notification with respect to the
suspension of the qualification of the Registrable Securities for sale under the
securities or "Blue Sky" laws of any jurisdiction or the initiation or
threatening of any proceeding for such purpose, and
(F) of the existence of any fact or the happening of any event during the
period (other than any suspension period referred to in Section 2(c) hereof)
during which the Registration Statement is required hereunder to be effective as
a result of which the Registration Statement, any amendment or post-effective
amendment thereto, the Prospectus, any prospectus supplement, or any document
incorporated therein by reference contain an untrue statement of material fact
or omit to state a material fact required to be stated therein or necessary to
make the statements therein not misleading;
(v) use its reasonable best efforts to obtain the withdrawal of any order
suspending the effectiveness of the Registration Statement at the earliest
possible moment;
(vi) if requested by any managing underwriter or underwriters or any holder
of Registrable Securities being sold pursuant to an underwritten offering, as
soon as practicable incorporate in a prospectus supplement or post-effective
amendment to the Registration Statement such information as is required by the
applicable Rules and Regulations and as the managing underwriter or underwriters
or such holder specifies should be included therein relating to the terms of the
sale of the Registrable Securities, including, without limitation, information
with respect to the principal amount or number of shares of Registrable
Securities being sold by such holder to any underwriter or underwriters, the
name and description of such holder or underwriter, the offering price of such
Registrable Securities and any discount, commission or other compensation
payable
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in respect thereof, the purchase price being paid therefor by such underwriter
or underwriters and with respect to any other terms of the underwritten offering
(including whether such underwriting commitment is on a firm commitment or best
efforts basis) of the Registrable Securities to be sold in such offering; and
make all required fillings of such prospectus supplement or post-effective
amendment promptly after being notified of the matters to be incorporated in
such prospectus supplement or post-effective amendment;
(vii) furnish to each selling holder of Registrable Securities and each
managing underwriter, if any, without charge, an executed copy of the
Registration Statement, each amendment and supplement thereto (in each case
including all exhibits thereto and documents incorporated by reference therein)
and such number of copies of the Registration Statement (including exhibits
thereto and documents incorporated by reference therein) as such persons may
reasonably request in order to facilitate the offering and disposition of the
Registrable Securities;
(viii) deliver to each selling holder of Registrable Securities and each
managing underwriter, if any, without charge, as many copies of the Prospectus
(including each preliminary prospectus) and any amendment or supplement thereto,
and such other documents, as such persons may reasonably request in order to
facilitate the offering and disposition of the Registrable Securities and to
permit any of such persons to satisfy the prospectus delivery requirements of
the Securities Act; the Company hereby consents to the use of the Prospectus or
any amendment or supplement thereto by each of the selling holders of
Registrable Securities and by each underwriter thereof, if any, in connection
with the offering and sale of the Registrable Securities covered by the
Prospectus or any amendment or supplement thereto; and as promptly as
practicable after the filing with the Commission of any document which is
incorporated by reference in the Prospectus (including each preliminary
prospectus) and any amendment or supplement thereto) deliver a copy of such
document to each holder of Registerable Securities covered by the Registration
Statement who requests such documents in writing from the Company;
(ix) prior to any public offering of Registrable Securities, use reasonable
efforts to (A) register or qualify the Registrable Securities covered by the
Registration Statement for offer and sale under the securities or "Blue Sky"
laws of such jurisdictions as any selling holder or underwriter reasonably shall
request, (B) keep such registrations or qualifications in effect and comply with
such laws so as to permit the continuance of offers, sales and dealings therein
in such jurisdictions for so long as may be necessary (but not to exceed three
years from the Effective Time) to enable any such holder or underwriter to
complete its distribution of Registrable Securities pursuant to the Registration
Statement and (C) take any and all other actions as may be reasonably necessary
or advisable to enable the disposition in such jurisdictions of such Registrable
Securities; provided, however, that the Company shall not be required for any
such purpose to qualify as a foreign corporation in any jurisdiction wherein it
would not otherwise be required to qualify but for the requirements of this
Section 3(c)(ix) or consent to general service of process in any such
jurisdiction;
(x) cooperate with the selling holders of Registrable Securities and the
managing underwriter or underwriters, if any, to facilitate the timely
preparation and delivery of certificates representing Registrable Securities to
be sold, which certificates shall not bear any restrictive legends and which, if
so required by any securities exchange upon which any Registrable Securities are
listed, shall be penned, lithographed or engraved, or
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produced by any combination of such methods, on steel engraved borders; and
enable such Registrable Securities to be in such denominations and registered in
such names as the selling holder or the managing underwriter or underwriters, if
any, may request at least two business days prior to any delivery of Registrable
Securities;
(xi) use reasonable efforts to cause the Registrable Securities covered by
the Registration Statement to be registered with or approved by such other
governmental agencies or authorities (federal, state and local) as may be
necessary to enable the seller or sellers thereof or the underwriter or
underwriters, if any, to consummate the disposition of such Registrable
Securities;
(xii) if any fact or event contemplated by subparagraph (iv)(F) above
shall exist or occur, prepare a post-effective amendment or supplement to the
Registration Statement or the related Prospectus or any document incorporated
therein by reference or file any other required document so that the Prospectus,
as thereafter delivered to the purchasers of the Registrable Securities, will
not contain an untrue statement of a material fact or omit to state any material
fact required to be stated therein or necessary to make the statements therein
not misleading;
(xiii) use its reasonable best efforts to cause the shares of Common Stock
constituting Registrable Securities covered by the Registration Statement to be
quoted on the Nasdaq National Market or, if the Common Stock is not then quoted
on the Nasdaq National Market, to be listed on such securities exchanges as the
Common Stock of the Company is then listed, upon effectiveness of the Shelf
Registration Statement;
(xiv) enter into such customary agreements (including a customary
underwriting agreement with the underwriter or underwriters, if any, which shall
include only such "lock-up arrangements", if any, as shall be agreeable to the
Company and the underwriter or underwriters) and take all such other actions
reasonably necessary in connection therewith in order to expedite or facilitate
the disposition of any Registrable Securities and, in such connection, whether
or not an underwriting agreement is entered into and whether or not the
Registrable Securities are to be sold in an underwritten offering:
(A) make such representations and warranties to the holders of such
Registrable Securities and the underwriter or underwriters, if any, in form,
substance and scope as are customarily made in connection with primary
underwritten offerings of equity or convertible debt securities;
(B) cause to be delivered to the sellers of Registrable Securities and the
underwriter or underwriters, if any, opinions of counsel to the Company, dated
the effective date of the Registration Statement and, in the case of an
underwritten offering, the date of delivery of any Registrable Securities sold
pursuant thereto (which counsel and opinions (in form, scope and substance)
shall be reasonably satisfactory to the managing underwriter or underwriters, if
any, and the appointed representative of or counsel to the holders of at least
50% in aggregate principal amount of the Registrable Securities being registered
(or, in the case of an underwritten offering, sold), addressed to each selling
holder and each underwriter, if any, covering the matters customarily covered in
opinions requested in primary underwritten offerings of equity and convertible
debt securities;
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(C) cause to be delivered on the effective date of the Registration
Statement, the date of the Prospectus and the effective date of the most recent
post-effective amendment to the Registration Statement, and at the time of the
signing of the underwriting or purchase agreement and at the time of delivery of
any Registrable Securities sold pursuant thereto, letters from the Company's
independent public accountants addressed to each selling holder and each
underwriter stating that such accountants are independent public accountants
within the meaning of the Securities Act and the applicable published Rules and
Regulations thereunder, and otherwise in customary form and covering such
financial and accounting matters as are customarily covered by letters of
independent certified public accountants delivered in connection with primary
underwritten public offerings of equity or convertible debt securities;
(D) if an underwriting agreement is entered into, cause the same to set
forth in full the indemnification provisions and procedures of Section 6 hereof
(or such other provisions and procedures satisfactory to the managing
underwriter or underwriters and the Company) with respect to all parties to be
indemnified pursuant to said Section;
(E) deliver such documents and certificates as may be reasonably requested
by any holder of Registrable Securities being sold or the managing underwriter
or underwriters, if any, to evidence the accuracy of the representations
contemplated by clause (A) above and compliance with any customary conditions
contained in the underwriting agreement or other agreement entered into by the
Company in connection with such offering;
(xv) otherwise use its reasonable best efforts to comply with all
applicable Rules and Regulations, and make generally available to its security
holders earnings statements satisfying the provisions of Section 11(a) of the
Securities Act no later than 45 days after the end of any 12-month period (or 90
days, if such period is a fiscal year) (A) commencing at the end of any fiscal
quarter in which the Registrable Securities are sold in an underwritten
offering, or, if not sold in such an offering, (B) commencing with the first
month of the Company's first fiscal quarter commencing after the effective date
of the Registration Statement, which statements shall cover said 12-month
periods;
(xvi) notify in writing each holder of Registrable Securities of any
proposal by the Company to amend or waive any provision of this Agreement
pursuant to Section 9(h) hereof and of any amendment or waiver effected pursuant
thereto, each of which notices shall contain the text of the amendment or waiver
proposed or effected, as the case may be; and
(xvii) in the event that any broker-dealer registered under the Exchange
Act shall be an "Affiliate" (as defined in Schedule E to the By-Laws of the
National Association of Securities Dealers, Inc. ("NASD")) of the Company or has
a "Conflict of Interest" (as defined in such Schedule) and such broker-dealer
shall underwrite, participate as a member of an underwriting syndicate or
selling group or "assist in the distribution" (within the meaning of such
Schedule) of any Registrable Securities, whether as a holder of such Registrable
Securities or as an underwriter, a placement or sales agent or a broker or
dealer in respect thereof, or otherwise, assist such broker-dealer in complying
with the requirements of such Schedule, including, without limitation, by (A)
engaging a "qualified independent under-
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writer" (as defined in such Schedule) to participate in the preparation of the
registration statement relating to such Registrable Securities, to exercise
usual standards of due diligence in respect thereto and to recommend the public
offering price of such Registrable Securities, (B) indemnifying such qualified
independent underwriter to the extent of the indemnification of underwriters
provided in Section 6 hereof, and (C) providing such information within the
possession of the Company to such broker-dealer as may be reasonably required in
order for such broker-dealer to comply with the requirements of the Rules of
Fair Practice of the NASD.
(d) The Company may require each selling holder of Registrable Securities
as to which any registration is being effected to furnish to the Company such
information regarding such holder, the Registrable Securities held by such
holder, and the distribution of such Registrable Securities as the Company may
from time to time request in writing, but only to the extent that such
information shall be required by law or by the Commission in connection with any
registration. Each such holder agrees, by the acquisition of Registrable
Securities, to notify the Company as promptly as practicable of any inaccuracy
or change in information previously furnished by such holder to the Company or
of the occurrence of any event in either case as a result of which any
Prospectus relating to such registration contains or would contain an untrue
statement of a material fact regarding such holder or such holder's intended
method of distribution of such Registrable Securities or omits to state any
material fact regarding such holder or such holder's intended method of
distribution of such Registrable Securities necessary to make the statements
therein, in light of the circumstances then existing, not misleading and
promptly to furnish to the Company any additional information required to
correct and update any previously furnished information or required so that such
Prospectus shall not contain, with respect to such holder or the distribution of
such Registrable Securities, an untrue statement of a material fact or omit to
state a material fact necessary to make the statements therein, in light of the
circumstances then existing, not misleading.
(e) 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 Section 3(c)(iv)(F) hereof or of
the commencement of any suspension period referred to in Section 2(c) hereof,
such holder will forthwith discontinue disposition of Registrable Securities
pursuant to the Registration Statement until such holder's receipt of the copies
of the supplemented or amended Prospectus contemplated by Section 3(c)(xii)
hereof, or until it is advised in writing by the Company that the use of the
Prospectus may be resumed, and has received copies of any additional or
supplemental filings which are incorporated by reference in the Prospectus, and,
if so directed by the Company, such holder 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 covering such Registrable Securities at
the time of receipt of such notice.
4. REGISTRATION EXPENSES.
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The Company agrees to bear and to pay or cause to be paid promptly upon
request being made therefor all expenses incident to the Company's performance
of or compliance with this Agreement, including, without limitation, (a) all
Commission and any NASD registration and filing fees and expenses, (b) all fees
and expenses in connection with the registration or qualification of the
Registrable Securities for offering and sale under the State securities and blue
sky laws referred to in Section 3(c)(ix) hereof and determines their eligibility
for investment under the laws of such jurisdiction as the managing underwriter
or underwriters, if any, or the holders of such Registrable Securities may
designate, including reasonable fees and disbursements, if any, of
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counsel for the selling holders or underwriters in connection with such
registrations or qualifications and determinations, (c) all expenses relating to
the preparation, printing, distribution and reproduction of the Registration
Statement required to be filed hereunder, each prospectus included therein or
prepared for distribution pursuant hereto, each amendment or supplement to the
foregoing, the expenses of preparing the Registrable Securities for delivery and
the expenses of reproducing any underwriting agreement(s), agreement(s) among
underwriters and "Blue Sky" or legal investment memoranda, any selling
agreements and all other documents in connection with the offering, sale or
delivery of Registrable Securities to be disposed of, (d) fees and expenses of
any Trustee under the Indenture, any Transfer Agent and Registrar with respect
to the Registrable Securities and any escrow agent or custodian, (e) internal
expenses of the Company (including, without limitation, all salaries and
expenses of the Company's officers and employees performing legal or accounting
duties), (f) fees, disbursements and expenses of counsel and independent
certified public accountants of the Company (including the expenses of any
opinions or "cold comfort" letters required by or incident to such performance
and compliance), (g) fees, disbursements and expenses of one counsel for the
holders of Registrable Securities retained in connection with such registration,
as selected by the holders of at least 50% in aggregate principal amount of the
outstanding Registrable Securities being registered, (h) fees, expenses and
disbursements of any other persons, including special experts, retained by the
Company in connection with such registration, (i) disbursements of any managing
underwriter or underwriters in connection with the offering and sale of
Registrable Securities under the Registration Statement (excluding commissions
or fees of underwriters, selling brokers, dealer managers or similar securities
industry professionals) and (j) all fees and expenses incurred in connection
with the qualification of the shares of Common Stock constituting Registrable
Securities for trading on the Nasdaq National Market, or the listing of such
shares on any other securities exchange, pursuant to Section 3(c)(xiii)
(collectively, the "Registration Expenses"). To the extent that any
Registration Expenses are incurred, assumed or paid by any holder of Registrable
Securities or any underwriter thereof, the Company shall reimburse such person
for the full amount of the Registration Expenses so incurred, assumed or paid
promptly after receipt of a request therefor. Notwithstanding the foregoing,
the holders of the Registrable Securities being registered shall pay all agency
fees and commissions and underwriting discounts and commissions attributable to
the sale of such Registrable Securities and the fees and disbursements of any
counsel or other advisors or experts retained by such holders (severally or
jointly), other than the counsel and experts specifically referred to above, and
all fees, disbursements and expenses of any "qualified independent underwriters"
engaged pursuant to Section 3(c)(xvii).
5. REPRESENTATIONS AND WARRANTIES.
------------------------------
The Company represents and warrants to, and agrees with, the Purchasers and
each of the holders from time to time of Registrable Securities that:
(a) Each Registration Statement and each Prospectus contained therein or
furnished pursuant to Sections 3(c)(vii) and 3(c)(viii) hereof and any further
amendments or supplements to any such Registration Statement or Prospectus, when
it becomes effective or is filed with the Commission, as the case may be, and,
in the case of an underwritten offering of Registrable Securities, at the time
of the closing under the underwriting agreement relating thereto, will conform
in all material respects to the requirements of the Securities Act and will 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 at all times subsequent to the Effective Time when a prospectus
would be required to be delivered under the Securities Act, other than from
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(i) such time as a notice has been given to holders of Registrable Securities
pursuant to Section 3(c)(iv)(F) hereof until (ii) such time as the Company
furnishes an amended or supplemented prospectus pursuant to Section 3(c)(xii)
hereof, the Registration Statement, and the Prospectus (including any summary
prospectus) contained therein or furnished pursuant to Section 3(c)(vii) or
3(c)(viii) hereof, as then amended or supplemented, will conform in all material
respects to the requirements of the Securities Act and will not contain an
untrue statement of a material fact or omit to state a material fact necessary
to make the statements therein, in light of the circumstances then existing, not
misleading; provided, however, that this representation and warranty shall not
apply to any statements or omissions made in reliance upon and in conformity
with information furnished in writing to the Company by an underwriter in
connection with an offering or by a holder of Registrable Securities expressly
for use therein.
(b) Any documents incorporated by reference in any Prospectus referred to
in Section 5(a) hereof, when they become or became effective or are or were
filed with the Commission, as the case may be, will conform or conformed in all
material respects to the requirements of the Securities Act or the Exchange Act,
as applicable, and none of such documents will contain or contained an untrue
statement of a material fact or will omit or omitted to state a material fact
required to be stated therein or necessary to make the statements therein not
misleading.
(c) The compliance by the Company with all of the provisions of this
Agreement and the consummation of the transactions herein contemplated will not
conflict with or result in a breach of any of the terms or provisions of, or
constitute a default under, any indenture, mortgage, deed of trust, loan
agreement or other agreement or instrument to which the Company or any
subsidiary thereof is a party or by which the Company or any subsidiary thereof
is bound or to which any of the property or assets of the Company or any
subsidiary thereof is subject, nor will such action result in any violation of
the provisions of the Certificate of Incorporation, as amended and restated, or
the Bylaws, as amended, of the Company or any statute or any order, rule or
regulation of any court or governmental agency or body having jurisdiction over
the Company or any subsidiary thereof or any of their properties; and no
consent, approval, authorization, order, registration or qualification of or
with any such court or governmental agency or body is required for the
consummation by the Company of the transactions contemplated by this Agreement,
except the registration under the Securities Act of the Registrable Securities
and such consents, approvals, authorizations, registrations or qualifications as
may be required under State securities or "Blue Sky" laws or foreign laws in
connection with the offering and distribution of the Registrable Securities.
(d) This Agreement has been duly authorized, executed and delivered by the
Company and, when duly authorized, executed and delivered by the other parties
hereto, will constitute a valid and legally binding obligation of the Company
enforceable in accordance with its terms, subject, as to enforcement, to
bankruptcy, insolvency, reorganization, moratorium and similar laws of general
applicability relating to or affecting creditors' rights and to general equity
principles.
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6. INDEMNIFICATION.
---------------
(a) Indemnification by the Company. Upon the registration of the
Registrable Securities pursuant to Section 2 hereof, and in consideration of the
agreements of the Purchasers contained herein and in the Purchase Agreement, and
as an inducement to the Purchasers to enter into such Agreements, the Company
shall, and it hereby agrees to, indemnify and hold harmless each of the holders
of Registrable Securities to be included in such registration, each underwriter,
selling agent or placement agent with respect to the Registrable Securities and
each of their respective officers, directors, employees and agents and each
person who controls such holder or underwriter, selling agent or placement agent
within the meaning of Section 15 of the Securities Act or Section 20 of the
Exchange Act (each such person being sometimes referred to as an "Indemnified
Person") against any losses, claims, damages or liabilities, joint or several,
to which such Indemnified Person may become subject under the Securities Act or
otherwise, insofar as such losses, claims, damages or liabilities (or actions in
respect thereof) arise out of or are based upon an untrue statement or alleged
untrue statement of a material fact contained in any Registration Statement
under which such Registrable Securities were registered under the Securities
Act, or any Prospectus contained therein or furnished by the Company to any
Indemnified Person, or any amendment or supplement thereto, or arise out of or
are based upon the omission or alleged omission to state therein a material fact
required to be stated therein or necessary to make the statements therein not
misleading, and the Company shall, and it hereby agrees to, reimburse such
Indemnified Person for any reasonable legal or other expenses reasonably
incurred by them in connection with investigating or defending any such action
or claim; provided, however, that the Company shall not be liable to any such
Indemnified Person in any such case to the extent that any such loss, claim,
damage or liability arises out of or is based upon an untrue statement or
alleged untrue statement or omission or alleged omission made in such
Registration Statement or Prospectus, or amendment or supplement, in reliance
upon and in conformity with written information furnished to the Company by or
on behalf of such Indemnified Person expressly for use therein.
(b) Indemnification by the Holders and any Agents and Underwriters. The
Company may require, as a condition to including any Registrable Securities in
any Registration Statement filed pursuant to this Agreement and to entering into
any underwriting agreement with respect thereto, that the Company shall have
received an undertaking reasonably satisfactory to it from the holder of such
Registrable Securities and from each underwriter named in any such underwriting
agreement, severally and not jointly, to (i) indemnify and hold harmless the
Company, its directors, officers who sign any Registration Statement and each
person, if any, who controls the Company within the meaning of either Section 15
of the Securities Act or Section 20 of the Exchange Act, against any losses,
claims, damages or liabilities to which the Company or such other persons may
become subject, under the Securities Act or otherwise, insofar as such losses,
claims, damages or liabilities (or actions in respect thereof) arise out of or
are based upon an untrue statement or alleged untrue statement of a material
fact contained in such Registration Statement, or any Prospectus contained
therein or furnished by the Company to any such holder or underwriter, or any
amendment or supplement thereto, or arise out of or are based upon the omission
or alleged omission to state therein a material fact required to be stated
therein or necessary to make the statements therein not misleading, in each case
to the extent, but only to the extent, that such untrue statement or alleged
untrue statement or omission or alleged omission was made in reliance upon and
in conformity with written information furnished in writing to the Company by or
on behalf of such holder or underwriter expressly for use therein, and (ii)
reimburse the Company for any legal or other expenses reasonably incurred by the
Company in connection with investigating or defending any such action or claim;
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(c) Notices of Claims, Etc. Promptly after receipt by an indemnified party
under subsection (a) or (b) above of written notice of the commencement of any
action, such indemnified party shall, if a claim in respect thereof is to be
made against an indemnifying party pursuant to the indemnification provisions of
or contemplated by this Section 6, notify such indemnifying party in writing of
the commencement of such action; but the omission so to notify the indemnifying
party shall not relieve it from any liability which it may have to any
indemnified party other than under the indemnification provisions of or
contemplated by Section 6(a) or 6(b) hereof. In case any such action shall be
brought against any indemnified party and it shall notify an indemnifying party
of the commencement thereof, such indemnifying party shall be entitled to
participate therein and, to the extent that it shall wish, jointly with any
other indemnifying party similarly notified, to assume the defense thereof, with
counsel satisfactory to such indemnified party (who shall not, except with the
consent of the indemnified party, be counsel to the indemnifying party), and,
after notice from the indemnifying party to such indemnified party of its
election so to assume the defense thereof, such indemnifying party shall not be
liable to such indemnified party for any legal expenses of other counsel or any
other expenses, in each case subsequently incurred by such indemnified party, in
connection with the defense thereof. No indemnifying party shall, without the
written consent of the indemnified party, effect the settlement or compromise
of, or consent to the entry of any judgment with respect to, any pending or
threatened action or claim in respect of which indemnification or contribution
may be sought hereunder (whether or not the indemnified party is an actual or
potential party to such action or claim) unless such settlement, compromise or
judgment (i) includes an unconditional release of the indemnified party from all
liability arising out of such action or claim and (ii) does not include a
statement as to, or an admission of, fault, culpability or a failure to act, by
or on behalf of any indemnified party.
(d) Contribution. Each party hereto agrees that, if for any reason the
indemnification provisions contemplated by Section 6(a) or Section 6(b) are
unavailable to or insufficient to hold harmless an indemnified party in respect
of any losses, claims, damages or liabilities (or actions in respect thereof)
referred to therein, then each indemnifying party shall contribute to the amount
paid or payable by such indemnified party as a result of such losses, claims,
damages or liabilities (or actions in respect thereof) in such proportion as is
appropriate to reflect the relative fault of the indemnifying party and the
indemnified party in connection with the statements or omissions which resulted
in such losses, claims, damages or liabilities (or actions in respect thereof),
as well as any other relevant equitable considerations. The relative fault of
such indemnifying party and indemnified party shall be determined by reference
to, among other things, whether the untrue or alleged untrue statement of a
material fact or omission or alleged omission to state a material fact relates
to information supplied by such indemnifying party or by such indemnified party,
and the parties' relative intent, knowledge, access to information and
opportunity to correct or prevent such statement or omission. The parties
hereto agree that it would not be just and equitable if contribution pursuant to
this Section 6(d) were determined by pro rata allocation (even if the holders or
any agents or underwriters or all of them were treated as one entity for such
purpose) or by any other method of allocation which does not take account of the
equitable considerations referred to in this Section 6(d). The amount paid or
payable by an indemnified party as a result of the losses, claims, damages or
liabilities (or actions in respect thereof) referred to above shall be deemed to
include any legal or other fees or expenses reasonably incurred by such
indemnified party in connection with investigating or defending any such action
or claim. No person guilty of fraudulent misrepresentation (within the meaning
of Section 11(f) of the Securities Act) shall be entitled to contribution from
any person who was not guilty of such fraudulent misrepresentation. The holders'
and any underwriters' obligations in this Section 6(d) to contribute shall be
several in proportion to the percentage of principal amount of Registrable
Securities registered or underwritten, as the case may be, by them and not
joint.
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(e) Notwithstanding any other provision of this Section 6, in no event will
any (i) holder be required to undertake liability to any person under this
Section 6 for any amounts in excess of the dollar amount of the proceeds to be
received by such holder from the sale of such holder's Registrable Securities
(after deducting any fees, discounts and commissions applicable thereto)
pursuant to such registration and (ii) underwriter be required to undertake
liability to any person hereunder for any amounts in excess of the discount,
commission or other compensation payable to such underwriter with respect to the
Registrable Securities underwritten by it and distributed to the public pursuant
to any such underwriting agreement.
(f) The obligations of the Company under this Section 6 shall be in
addition to any liability which the Company may otherwise have to any
Indemnified Person, including any liability of the Company to the Purchasers
pursuant to Section 8 of the Purchase Agreement.
7. UNDERWRITTEN OFFERINGS.
----------------------
(a) Right to Effect Underwritten Offering. The holders of Registrable
Securities covered by the Registration Statement may sell such Registrable
Securities in an underwritten offering, provided that the holders of at least
20% in aggregate principal amount of the Registrable Securities initially
outstanding elect to participate in such an offering and except that any such
underwritten offering shall be suspended during the periods specified in Section
2(c) hereof.
(b) Selection of Underwriters. If any of the Registrable Securities
covered by the Registration Statement are to be sold pursuant to an underwritten
offering, the managing underwriter or underwriters thereof shall be designated
by the holders of at least 50% in aggregate principal amount of the outstanding
Registrable Securities to be included in such offering, provided that such
designated managing underwriter or underwriters is or are reasonably acceptable
to the Company.
(c) Participation by Holders. Each holder of Registrable Securities hereby
agrees with the Company and each other such holder that no such holder may
participate in any underwritten offering hereunder unless such holder (i) agrees
to sell such holder's Registrable Securities on the basis provided in any
underwriting arrangements approved by the persons entitled hereunder to approve
such arrangements and (ii) completes and executes all questionnaires, powers of
attorney, indemnities, underwriting agreements and other documents reasonably
required under the terms of such underwriting arrangements.
8. RULE 144.
--------
The Company covenants to the holders of Registrable Securities that to the
extent it shall be required to do so under the Exchange Act, the Company shall
timely file the reports required to be filed by it under the Exchange Act or the
Securities Act (including, but not limited to, the reports under Sections 13 and
15(d) of the Exchange Act referred to in subparagraph (c)(1) of Rule 144 under
the Securities Act) and the Rules and Regulations, and shall take such further
action as shall be necessary to enable such holder to sell Registrable
Securities without registration under the Securities Act within the limitations
of the exemption provided by Rule 144 under the Securities Act, as such Rule may
be amended from time to time, or any similar rule or regulation hereafter
adopted by the Commission. Upon the request of any holder of Registrable
Securities, the Company shall deliver to such holder a written statement as to
whether it has complied with such requirements.
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9. MISCELLANEOUS.
-------------
(a) No Inconsistent Agreements. The Company will not on or after the date
of this Agreement grant registration rights with respect to Registrable
Securities or any other securities, or enter into any agreement with respect to
its securities, which prevents the exercise of or otherwise conflicts with the
provisions hereof. The Company is not currently a party to any agreement with
respect to any of its equity or debt securities granting any registration rights
to any person, but, as described in the Offering Circular, it proposes to enter
into such an agreement in connection with the Xxxxxxx Transaction.
(b) Specific Performance. The parties hereto acknowledge that there may be
no adequate remedy at law if any party fails to perform any of its obligations
hereunder and that each party may be irreparably harmed by any such failure, and
accordingly agree that each party, in addition to any other remedy to which it
may be entitled at law or in equity, shall be entitled to compel specific
performance of the obligations of any other party under this Agreement in
accordance with the terms and conditions of this Agreement, in any court of the
United States or any State thereof having jurisdiction.
(c) Notices. All notices, requests, claims, demands, waivers and other
communications hereunder shall be given in the manner provided for in the
Indenture.
(d) Parties in Interest. All the terms and provisions of this Agreement
shall be binding upon, shall inure to the benefit of and shall be enforceable by
the respective successors and assigns of the parties hereto. In the event that
any transferee of any holder of Registrable Securities shall acquire Registrable
Securities, in any manner, whether by gift, bequest, purchase, operation of law
or otherwise, such transferee shall, without any further writing or action of
any kind, be deemed a party hereto for all purposes and such Registrable
Securities shall be held subject to all of the terms of this Agreement, and by
taking and holding such Registrable Securities such transferee shall be entitled
to receive the benefits of and be conclusively deemed to have agreed to be bound
by and to perform all of the terms and provisions of this Agreement. If the
Company shall so request, any such successor, assign or transferee shall agree
in writing to acquire and hold the Registrable Securities subject to all of the
terms hereof.
(e) Survival. The respective indemnities, agreements, representations,
warranties and each other provision set forth in this Agreement or made pursuant
hereto shall remain in full force and effect regardless of any investigation (or
statement as to the results thereof) made by or on behalf of any holder of
Registrable Securities, any director, officer or partner of such holder, any
agent or underwriter or any director, officer or partner thereof, or any
controlling person of any of the foregoing, and shall survive delivery of and
payment for the Registrable Securities pursuant to the Purchase Agreement and
the transfer and registration of Registrable Securities by such holder.
(f) LAW GOVERNING. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
(g) Headings. The descriptive headings of the several Sections and
paragraphs of this Agreement are inserted for convenience only, do not
constitute a part of this Agreement and shall not affect in any way the meaning
or interpretation of this Agreement.
(h) Amendments and Waivers. This Agreement may be amended and the
observance of any term of this Agreement may be waived (either generally or in a
particular instance and either
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retroactively or prospectively) only by a written instrument duly executed by
the Company and the holders of at least 66-2/3% of the principal amount of the
Registrable Securities at the time outstanding. Each holder of any Registrable
Securities at the time or thereafter outstanding shall be bound by any amendment
or waiver effected pursuant to this Section 9(h), whether or not any notice,
writing or marking indicating such amendment or waiver appears on such
Registrable Securities or is delivered to such holder.
(i) Inspection. For so long as this Agreement shall be in effect, this
Agreement and a complete list of the names and addresses of all the holders of
Registrable Securities shall be made available upon reasonable prior written
notice for inspection and copying on any business day by any holder of
Registrable Securities at the offices of the Company at the address set forth in
the Indenture.
(j) Counterparts. This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
(k) Termination. If the Company mandatorily redeems the Securities as a
whole in compliance with Section 1109 of the Indenture, thereupon this Agreement
shall terminate automatically and be of no further force or effect.
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IN WITNESS WHEREOF, the parties hereto have caused this instrument to be
duly executed as of the date first written above.
OFFSHORE LOGISTICS, INC.
By: /s/ X. X. XXXXXXX
--------------------------------
Name: X. X. Xxxxxxx
Title: Chairman of the Board,
President & CEO
XXXXXXXXX & COMPANY, INC.
By: /s/ XXXXX X. X. XXXXXXXXXX, XX.
---------------------------------
Name: Xxxxx X. X. Xxxxxxxxxx, Xx.
Title: Managing Director
XXXXXXX & COMPANY INTERNATIONAL
By: /s/ XXXXXXXX X. XXXXX
----------------------------------
Name: Xxxxxxxx X. Xxxxx
Title: Managing Director
XXXXXXX XXXX & COMPANY L.L.C.
By: /s/ XXXXXXX X. XXXXX
---------------------------------
Name: Xxxxxxx X. Xxxxx
Title: Partner
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