EXHIBIT 99.5
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TRICO MARINE SERVICES, INC.
and
[MELLON INVESTOR SERVICES, L.L.C.],
as Warrant Agent
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Warrant Agreement
Dated as of [ , 200_]
Warrants to Purchase
Shares of Common Stock
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TABLE OF CONTENTS
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ARTICLE 1 DEFINITIONS.................................................................................
Section 1.01 Definitions........................................................................
Section 1.02 Rules of Construction..............................................................
ARTICLE 2 APPOINTMENT OF WARRANT AGENT................................................................
ARTICLE 3 THE WARRANTS................................................................................
Section 3.01 Form and Dating; Legends...........................................................
Section 3.02 Execution and Countersignature.....................................................
Section 3.03 Registrar..........................................................................
Section 3.04 Replacement Warrant Certificates...................................................
Section 3.05 Outstanding Warrants...............................................................
Section 3.06 Temporary Warrant Certificates.....................................................
Section 3.07 Cancellation.......................................................................
Section 3.08 CUSIP and CINS Numbers.............................................................
Section 3.09 Registration, Transfer and Exchange................................................
ARTICLE 4 TERMS OF WARRANTS; EXERCISE OF WARRANTS.....................................................
Section 4.01 Terms of Warrants; Exercise of Warrants............................................
ARTICLE 5 COVENANTS OF THE COMPANY....................................................................
Section 5.01 Maintenance of Office or Agency....................................................
Section 5.02 Payment of Taxes...................................................................
Section 5.03 Reservation of Warrant Shares......................................................
Section 5.04 Stock Exchange Listings............................................................
ARTICLE 6 ADJUSTMENT OF EXERCISE PRICE AND NUMBER OF WARRANT SHARES ISSUABLE..........................
Section 6.01 Adjustment of Exercise Price and Number of Warrant Shares Issuable.................
Section 6.02 Fractional Interests...............................................................
Section 6.03 Notices to Holders.................................................................
Section 6.04 No Rights as Stockholders..........................................................
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TABLE OF CONTENTS
(continued)
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ARTICLE 7 WARRANT AGENT...............................................................................
Section 7.01 Warrant Agent......................................................................
Section 7.02 Individual Rights of Warrant Agent.................................................
Section 7.03 Replacement of Warrant Agent.......................................................
Section 7.04 Successor Warrant Agent by Merger..................................................
Section 7.05 Holder Lists.......................................................................
ARTICLE 8 MISCELLANEOUS...............................................................................
Section 8.01 Notices............................................................................
Section 8.02 Supplements and Amendments.........................................................
Section 8.03 Governing Law......................................................................
Section 8.04 No Adverse Interpretation of Other Agreements......................................
Section 8.05 Successors.........................................................................
Section 8.06 Counterparts; Multiple Originals...................................................
Section 8.07 Separability.......................................................................
Section 8.08 Table of Contents and Headings.....................................................
Section 8.09 Benefits of this Agreement.........................................................
Section 8.10 Waiver of Jury Trial............................................................
EXHIBIT A Form of Face of Warrant Certificate
EXHIBIT B Form of Reverse of Warrant Certificate
EXHIBIT C DTC Legend
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WARRANT AGREEMENT dated as of [ , 200_], between TRICO MARINE SERVICES,
INC., a Delaware corporation (the "Company"), and [MELLON INVESTOR SERVICES,
L.L.C., a limited liability company organized under the laws of the _________],
as warrant agent (the "Warrant Agent").
Concurrently with the execution hereof, the Company is emerging from the
protection of Chapter 11 of Title 11 of the United States Code pursuant to a
plan of reorganization dated [ , 2004], as the same may be amended, restated,
supplemented or otherwise modified (the "Plan").
Pursuant to the terms of, and subject to the conditions contained in, the
Plan, the Company has agreed to issue (i) [ ] Series A Warrants (the "Series
A Warrants") entitling the holders thereof to purchase shares of the common
stock, par value $0.01 per share (the "Common Stock"), of the Company at a price
of $[ ] per share of Common Stock (as adjusted from time to time hereunder, the
"Series A Exercise Price") and (ii) [ ] Series B Warrants (the "Series
B Warrants") entitling the holders thereof to purchase shares of Common Stock at
a price of $[ ] per share of Common Stock (as adjusted from time to time
hereunder, the "Series B Exercise Price"). The Series A Warrants and the Series
B Warrants are sometimes referred to herein collectively as the "Warrants".
The Company wishes the Warrant Agent to act on its behalf, and the Warrant
Agent is willing to act on behalf of the Company, in connection with the
issuance, exchange, transfer and exercise of the Warrants.
The Company desires to enter into this Agreement to set forth the terms
and conditions of the Warrants and the rights and obligations of the Company,
the Warrant Agent and the registered holders of the certificates evidencing
Warrants.
THEREFORE, in consideration of the premises and the mutual covenants and
agreements set forth herein and in the Plan, and for other good and valuable
consideration, the receipt and sufficiency of which is hereby acknowledged, the
Company and the Warrant Agent, intending to be legally bound, hereby agree as
follows:
ARTICLE 1
DEFINITIONS
Section 1.01 Definitions. As used in this Agreement, the following terms
shall have the following respective meanings:
"Affiliate" means, with respect to any Person, any other Person directly
or indirectly controlling, controlled by, or under direct or indirect common
control with, such Person. For purposes of this definition, "control"
(including, with correlative meanings, the terms "controlling," "controlled by"
and "under common control with") with respect to any Person, means the
possession, directly or indirectly, of the power to direct or cause the
direction of the management and policies of such Person, whether through the
ownership of voting securities, by contract or otherwise.
"Agent Member" means a member of, or a participant in, the Depositary.
"Agreement" means this Warrant Agreement, as amended or supplemented from
time to time.
"Alien" has the meaning provided in Article Six, Section 6 of the
Company's Second Amended and Restated Certificate of Incorporation.
"Board of Directors" means the board of directors or comparable governing
body of the Company, or any committee thereof duly authorized to act on its
behalf.
"Business Day" means any day except a Saturday, Sunday or other day on
which commercial banks in New York City or in the city where the Corporate Trust
Office of the Warrant Agent is located are authorized or required by law to
close.
"Capital Stock" means any and all shares, interests, participations,
rights or other equivalents (however designated) of corporate stock or
partnership or membership interests, whether common or preferred.
"Certificated Warrant" means a Warrant in registered individual form.
"Commission" means the Securities and Exchange Commission.
"Common Stock" has the meaning assigned to such term in the preamble of
this Agreement.
"Company" means the party named as such in the preamble of this Agreement,
or any successor obligor under this Agreement.
"Corporate Trust Office" means the office of the Warrant Agent at which
the corporate trust business of the Warrant Agent is principally administered,
which at the Issue Date is located at [Plaza of the Americas, 000 Xxxxx Xxxxx
Xxxxxx, Xxxxx 0000, Xxxxxx, Xxxxx 00000-0000].
"Daily Price" on any day means (A) the closing price on such day of the
Common Stock as reported by the principal national securities exchange on which
the shares of Common Stock are then listed and traded; (B) if the shares of
Common Stock are not then listed and traded on any such securities exchange,
then the last reported sale price on such day on the NASDAQ National Market; (C)
if the shares of Common Stock are not then listed and traded on the NASDAQ
National Market, then the last reported sale price on such day on the NASDAQ
SmallCap Market; or (D) if the shares of Common Stock are not then listed and
traded on the NASDAQ SmallCap Market, then the average of the highest reported
bid and lowest reported asked price on such day as reported by NASDAQ. If on any
determination date the shares of such class of Common Stock are not quoted by
any such organization, then the Daily Price shall be the fair market value of
such shares on such determination date as reasonably determined in good faith by
the Board of Directors.
"Depositary" means the depositary of each Global Warrant, which will
initially be DTC.
"DTC" means The Depository Trust Company, a New York corporation, and its
successors.
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"DTC Legend" means the legend set forth in Exhibit C.
"GAAP" means generally accepted accounting principles in the United States
of America as in effect from time to time.
"Global Warrant" means a Warrant in registered global form.
"Holder" means the record owner of any Warrant.
"Issue Date" means the date on which the Warrants are originally issued
under this Agreement.
"NASDAQ" means the National Association of Securities Dealers, Inc.
Automated Quotation System.
"Officer" means the chairman of the Board of Directors, the president, the
chief executive officer, any vice president, the chief financial officer, the
treasurer or any assistant treasurer, or the secretary or any assistant
secretary, of the Company.
"Officers' Certificate" means a certificate signed in the name of the
Company (i) by the chairman of the Board of Directors, the president, the chief
executive officer or any vice president and (ii) by the chief financial officer,
the treasurer or any assistant treasurer or the secretary or any assistant
secretary, of the Company.
"Opinion of Counsel" means a written opinion signed by legal counsel to
the Company, reasonably satisfactory to the Warrant Agent.
"Permitted Percentage" has the meaning provided in Article Six, Section 6
of the Company's Second Amended and Restated Certificate of Incorporation.
"Person" means an individual, a corporation, a partnership, a limited
liability company, an association, a trust or any other entity, including a
government or political subdivision or an agency or instrumentality thereof.
"Plan" has the meaning assigned to such term in the preamble of this
Agreement.
"Register" has the meaning assigned to such term in Section 3.09.
"Registrar" means a Person engaged to maintain the Register.
"Series A Exercise Price" has the meaning assigned to such term in the
preamble of this Agreement.
"Series B Exercise Price" has the meaning assigned to such term in the
preamble of this Agreement.
"Series A Expiration Date" has the meaning assigned to such term in
Section 4.01.
"Series B Expiration Date" has the meaning assigned to such term in
Section 4.01.
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"Series A Warrants" has the meaning assigned to such term in the preamble
of this Agreement.
"Series B Warrants" has the meaning assigned to such term in the preamble
of this Agreement.
"Warrant Agent" means the party named as such in the preamble of this
Agreement or any successor warrant agent under this Agreement pursuant to
Article 7.
"Warrant Certificate" means a certificate evidencing a Warrant.
"Warrant Shares" means the shares of Common Stock issuable upon exercise
of the Warrants.
"Warrants" has the meaning assigned to such term in the preamble of this
Agreement.
Section 1.02 Rules of Construction. Unless the context otherwise requires
or except as otherwise expressly provided,
(i) an accounting term not otherwise defined has the meaning
assigned to it in accordance with GAAP;
(ii) "herein," "hereof" and other words of similar import
refer to this Agreement as a whole and not to any particular Section,
Article or other subdivision;
(iii) all references to Sections, subsections, Articles or
Exhibits refer to Sections, subsections, Articles or Exhibits of or to
this Agreement unless otherwise indicated; and
(iv) references to agreements, instruments, statutes or
regulations, are to such agreements, instruments, statutes or regulations,
as amended from time to time (or to successor statutes and regulations).
ARTICLE 2
APPOINTMENT OF WARRANT AGENT
The Company hereby appoints the Warrant Agent to act as agent for the
Company in accordance with the instructions set forth in this Agreement and the
Warrant Agent hereby accepts such appointment.
ARTICLE 3
THE WARRANTS
Section 3.01 Form and Dating; Legends. The face of the Warrant
Certificates will be substantially in the form attached hereto as Exhibit A and
the reverse of the Warrant Certificates will be substantially in the form
attached hereto as Exhibit B. The terms and provisions contained in the form of
the Warrant Certificates annexed as Exhibits A and B constitute, and are hereby
expressly made, a part of this Agreement. The Warrant Certificates may have
notations,
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legends or endorsements required by law, rules of or agreements with national
securities exchanges to which the Company is subject. Each Warrant Certificate
will be dated the date of its countersignature. The Company and the Warrant
Agent, by their execution and delivery of this Agreement, expressly agree to
such terms and provisions and to be bound thereby. However, to the extent any
provision of any Warrant Certificate conflicts with the express provisions of
this Agreement, the provisions of this Agreement shall govern and be
controlling.
Section 3.02 Execution and Countersignature. (a) An Officer shall execute
the Warrant Certificates for the Company by facsimile or manual signature in the
name and on behalf of the Company. If an officer whose signature is on a Warrant
Certificate no longer holds that office at the time the Warrant Certificate is
countersigned, the Warrant will still be valid.
(b) A Warrant will not be valid until the Warrant Agent manually
countersigns the Warrant Certificate, with the signature conclusive evidence
that the Warrant Certificate has been countersigned under this Agreement. At any
time and from time to time after the execution and delivery of this Agreement,
the Company may deliver Warrant Certificates executed by the Company to the
Warrant Agent for countersignature. The Warrant Agent will countersign and
deliver a number of Warrant Certificates for original issue in an aggregate
amount not to exceed the amount stated in the preamble hereof after receipt by
the Warrant Agent of an Officers' Certificate specifying:
(i) the amount and series of Warrant Certificates to be
countersigned and the date on which the Warrant Certificates are to be
countersigned, (ii) whether the Warrants are to be issued as one or more
Global Warrants or Certificated Warrants, and
(ii) other information the Company may determine to include or
the Warrant Agent may reasonably request.
Section 3.03 Registrar. The Company may appoint one or more Registrars or
may itself act as Registrar. If the Company appoints a Registrar other than the
Warrant Agent, then the Company and the Registrar will enter into an appropriate
agreement implementing the provisions of this Agreement relating to the
obligations to be performed by the Registrar. The Company initially appoints the
Warrant Agent as Registrar.
Section 3.04 Replacement Warrant Certificates. If a mutilated Warrant
Certificate is surrendered to the Warrant Agent or if a Holder delivers to the
Company a sworn affidavit that its Warrant Certificate has been lost, destroyed
or wrongfully taken, then the Company will issue and the Warrant Agent will
countersign a replacement Warrant Certificate. Every replacement Warrant
Certificate is an obligation of the Company and entitled to the benefits of this
Agreement. If required by the Warrant Agent or the Company, an indemnity must be
furnished that is sufficient in the judgment of both the Warrant Agent and the
Company to protect the Company and the Warrant Agent from any loss they may
suffer if a Warrant Certificate is replaced. The Company may charge the Holder
for the expenses of the Company and the Warrant Agent in replacing a Warrant
Certificate.
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Section 3.05 Outstanding Warrants. (a) Warrants outstanding at any time
are all Warrants represented by Warrant Certificates that have been
countersigned by the Warrant Agent except for:
(i) Warrant Certificates cancelled by the Warrant Agent or
delivered for cancellation;
(ii) Warrants exercised by the Holder thereof; and
(iii) any Warrant Certificate that has been replaced pursuant
to Section 3.04.
(b) A Warrant shall not cease to be outstanding because the Company or one
of its Affiliates holds the Warrant, provided that in determining whether the
Holders of the requisite number of the outstanding Warrants have given or taken
any request, demand, authorization, direction, notice, consent, waiver or other
action hereunder, Warrants owned by the Company or any Affiliate of the Company
will be disregarded and deemed not to be outstanding (it being understood that
in determining whether the Warrant Agent is protected in relying upon any such
request, demand, authorization, direction, notice, consent, waiver or other
action, only Warrants which the Warrant Agent knows to be so owned will be so
disregarded).
Section 3.06 Temporary Warrant Certificates. Until definitive Warrant
Certificates are ready for delivery, the Company may prepare and the Warrant
Agent will countersign temporary Warrant Certificates. Temporary Warrant
Certificates will be substantially in the form of definitive Warrant
Certificates but may have insertions, substitutions, omissions and other
variations determined to be appropriate by the Officer executing the temporary
Warrant Certificates, as evidenced by the execution of the temporary Warrant
Certificates. If temporary Warrant Certificates are issued, the Company will
cause definitive Warrant Certificates to be prepared without unreasonable delay.
After the preparation of definitive Warrant Certificates, the temporary Warrant
Certificates will be exchangeable for definitive Warrant Certificates without
charge to the Holder upon surrender of the temporary Warrant Certificates. Upon
surrender for cancellation of any temporary Warrant Certificates, the Company
will execute and the Warrant Agent will countersign and deliver in exchange
therefor a like amount of definitive Warrant Certificates.
Section 3.07 Cancellation. The Company at any time may deliver to the
Warrant Agent for cancellation any Warrant Certificates previously countersigned
and delivered hereunder that the Company may have acquired in any manner
whatsoever, and may deliver to the Warrant Agent for cancellation any Warrant
Certificates previously countersigned hereunder which the Company has not
issued. Any Registrar will forward to the Warrant Agent any Warrant Certificates
surrendered to it for transfer, exchange or exercise. The Warrant Agent (and no
one else) will cancel all Warrant Certificates surrendered for transfer,
exchange, exercise or cancellation and dispose of them in accordance with its
normal procedures or the written instructions of the Company. The Company may
not issue new Warrants to replace Warrants evidenced by Warrant Certificates
that have been exercised or delivered to the Warrant Agent for cancellation. The
Registrar shall provide the Company with a list of all Warrant Certificates that
have been cancelled.
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Section 3.08 CUSIP and CINS Numbers. The Company in issuing the Warrants
may use "CUSIP" and "CINS" numbers, and the Warrant Agent will use CUSIP numbers
or CINS numbers in notices as a convenience to Holders, the notice to state that
no representation is made as to the correctness of such numbers either as
printed on the Warrant Certificates or as contained in any notice to any Holder.
The Company will promptly notify the Warrant Agent of any change in the CUSIP or
CINS numbers.
Section 3.09 Registration, Transfer and Exchange. (a) The Warrants will be
issued in registered form only, and the Company shall cause the Warrant Agent to
maintain a register (the "Register") of the Warrants, for registering the record
ownership of the Warrants and transfers and exchanges of the Warrants.
(b) Each Global Warrant will be registered in the name of the Depositary
or its nominee and, so long as DTC is serving as the Depositary thereof, will
bear the DTC Legend. A Global Warrant may not be transferred as a whole except
by the Depositary to a nominee of the Depositary, by a nominee of the Depositary
to the Depositary or to another nominee of the Depositary, or by the Depositary
or any such nominee to a successor Depositary or a nominee of such successor
Depositary. Except as provided in this Section 3.09(b) and in Section 3.04, a
Global Warrant may not be exchanged for another Warrant, provided, however, that
beneficial interests in a Global Warrant may be transferred by Agent Members in
accordance with the applicable rules and procedures of the Depositary. Agent
Members will have no rights under this Agreement with respect to any Global
Warrant held on their behalf by the Depositary, and the Depositary may be
treated by the Company, the Warrant Agent and any agent of the Company or the
Warrant Agent as the absolute owner and Holder of such Global Warrant for all
purposes whatsoever. Notwithstanding the foregoing, the Depositary or its
nominee may grant proxies and otherwise authorize any Person (including any
Agent Member and any Person that holds a beneficial interest in a Global Warrant
through an Agent Member) to take any action that a Holder is entitled to take
under the Warrants, and nothing herein will impair, as between the Depositary
and its Agent Members, the operation of customary practices governing the
exercise of the rights of a holder of any security.
(c) Each Global Warrant will be exchanged by the Company for Certificated
Warrants if (i) the Depositary notifies the Company that it is unwilling or
unable to continue as Depositary for such Global Warrant and a successor
Depositary is not appointed by the Company within 90 days after the date of such
notice or (ii) the Company in its sole discretion determines that the Global
Warrants should be exchanged for Certificated Warrants and delivers a notice to
such effect to the Warrant Agent. Upon the occurrence of either of such events,
the Warrant Agent will promptly exchange all beneficial interest in the Global
Warrant for one or more Certificated Warrants of the same series registered in
the name of the owner of each beneficial interest, as identified to the Warrant
Agent by the Depositary, and thereupon the Global Warrant will be deemed
canceled.
(d) Except as otherwise provided in Section 3.09(b), a Holder may transfer
a Warrant to another Person or exchange a Warrant Certificate for another
Warrant Certificate of the same amount and series by presenting to the Warrant
Agent a written request therefore stating the name of the proposed transferee or
requesting such an exchange, accompanied by any document required by this
Agreement. The Warrant Agent will promptly register any transfer or exchange
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that meets the requirements of this Section 3.09(d) by noting the same in the
Register. No transfer or exchange will be effective as to the Company, the
Warrant Agent and their respective agents until it is registered in the
Register. Prior to the registration of any transfer, the Company, the Warrant
Agent and their respective agents will treat the Person in whose name the
Warrant is registered as the owner and Holder thereof for all purposes, and will
not be affected by notice to the contrary. From time to time the Company will
execute and the Warrant Agent will countersign additional Warrant Certificates
as necessary to permit the registration of a transfer or exchange in accordance
with this Section 3.09(d). All Warrants issued upon transfer or exchange shall
be the duly authorized, executed and delivered Warrants of the Company entitled
to the benefits of this Agreement. No service charge will be imposed in
connection with any transfer or exchange of any Warrant, but the Company may
require payment of a sum sufficient to cover any transfer tax or similar
governmental charge payable in connection therewith (other than a transfer tax
or other similar governmental charge payable upon exchange pursuant to Section
3.09(c)).
(e) If a Warrant Certificate representing a Certificated Warrant is
transferred or exchanged for another Warrant Certificate representing a
Certificated Warrant, the Warrant Agent will (i) cancel the Warrant Certificate
being transferred or exchanged, (ii) deliver one or more new Warrant
Certificates representing a number of Warrants of the same series being
transferred or exchanged to the transferee (in the case of a transfer) or the
Holder of the canceled Warrant Certificate (in the case of an exchange),
registered in the name of such transferee or Holder, as applicable, and (iii) if
such transfer or exchange involves less than the entire number of Warrants
represented by the canceled Warrant Certificate, deliver to the Holder thereof
one or more Warrant Certificates representing an aggregate number of Warrants of
the same series equal to the untransferred or unexchanged number of the canceled
Warrants, registered in the name of the Holder thereof.
ARTICLE 4
TERMS OF WARRANTS; EXERCISE OF WARRANTS
Section 4.01 Terms of Warrants; Exercise of Warrants.
(a) Each Series A Warrant not exercised prior to 5:00 p.m., New York City
time, on [insert fifth anniversary of Effective Date of Plan] (the "Series A
Expiration Date") shall become void and all rights thereunder and all rights in
respect thereof under this Agreement shall cease as of such time. Each Series B
Warrant not exercised prior to 5:00 p.m., New York City time, on [insert third
anniversary of Effective Date of Plan] (the "Series B Expiration Date") shall
become void and all rights thereunder and all rights in respect thereof under
this Agreement shall cease as of such time.
(b) Subject to the terms of this Agreement, each Series A Warrant shall be
exercisable, in full and not in part, at the election of the Holder thereof,
during the period commencing at the opening of business on the Issue Date and
until 5:00 p.m., New York City time on the Series A Expiration Date, and shall
entitle the Holder thereof to receive from the Company [ ] fully paid and
nonassessable shares of Common Stock upon exercise of such Series A Warrant and
payment of the Series A Exercise Price then in effect in cash, by wire transfer
or by certified or official check payable to the order of the Company. Subject
to the
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terms of this Agreement, each Series B Warrant shall be exercisable, in full and
not in part, at the election of the Holder thereof, during the period commencing
at the opening of business on the Issue Date and until 5:00 p.m., New York City
time on the Series B Expiration Date, and shall entitle the Holder thereof to
receive from the Company [ ] fully paid and nonassessable shares of Common Stock
upon exercise of such Series B Warrant and payment of the Series B Exercise
Price then in effect in cash, by wire transfer or by certified or official check
payable to the order of the Company.
(c) In order to exercise all or any of the Warrants, the Holder thereof
must deliver to the Warrant Agent at its Corporate Trust Office (i) the Warrant
Certificates evidencing such Warrants, (ii) the form of election to purchase on
the reverse thereof duly filled in and signed, which signature shall be
medallion guaranteed by an institution which is a member of a Securities
Transfer Association recognized signature guarantee program, and (iii) payment
to the Warrant Agent for the account of the Company of the then-current Series A
Exercise Price (in the case of exercise of the Series A Warrants) or Series B
Exercise Price (in the case of exercise of the Series B Warrants), in the manner
set forth in Section 4.01(b) for the number of Warrant Shares in respect of
which the Warrants are being exercised.
(d) No fractional Warrant Shares are to be issued upon any exercise of a
Warrant, but rather cash in lieu of fractional shares shall be delivered to the
Holder as provided in Section 6.02.
(e) If fewer than all the Warrants represented by a Warrant Certificate
are exercised, such Warrant Certificate shall be surrendered and a new Warrant
Certificate of the same series and for the number of Warrants which were not
exercised shall be executed by the Company and delivered to the Warrant Agent,
and the Warrant Agent shall countersign the new Warrant Certificate, registered
in such name or names as may be directed in writing by the Holder, and shall
deliver the new Warrant Certificate to the Person or Persons entitled to receive
the same.
(f) All Warrant Certificates surrendered upon exercise of Warrants shall
be cancelled by the Warrant Agent. Such cancelled Warrant Certificates shall
then be disposed of by the Warrant Agent in a manner satisfactory to the
Company. The Warrant Agent shall account promptly to the Company with respect to
Warrants exercised and concurrently pay to the Company all monies received by
the Warrant Agent for the purchase of the Warrant Shares through the exercise of
such Warrants.
(g) The Warrant Agent shall keep copies of this Agreement and any notices
given or received hereunder available for inspection by the Holders during
normal business hours at its Corporate Trust Office. The Company shall supply
the Warrant Agent from time to time with such numbers of copies of this
Agreement as the Warrant Agent may reasonably request.
(h) Notwithstanding anything to the contrary set forth in this Agreement
or in any Warrant Certificate, no Holder may exercise a Warrant if the Company
determines that the issuance of Warrant Shares to the Holder of such Warrant
upon the exercise thereof would cause the percentage of shares of Common Stock
then outstanding that is owned by Aliens to exceed the Permitted Percentage. The
Company may in its discretion require any Holder that seeks to exercise a
Warrant to submit such proof of citizenship as the Company may require in order
to
9
determine that the issuance of Warrant Shares to the Holder of such Warrant upon
the exercise thereof would not cause the percentage of shares of Common Stock
then outstanding that is owned by Aliens to exceed the Permitted Percentage.
ARTICLE 5
COVENANTS OF THE COMPANY
Section 5.01 Maintenance of Office or Agency. The Company will maintain an
office or agency where Warrants may be surrendered for registration of transfer
or exchange or for presentation for exercise. The Company hereby initially
designates the Corporate Trust Office of the Warrant Agent as such office of the
Company. The Company will give prompt written notice to the Warrant Agent of any
change in the location of such office or agency. If at any time the Company
fails to maintain any such required office or agency or fails to furnish the
Warrant Agent with the address thereof, such surrenders and presentations may be
made or served to the Warrant Agent.
The Company may also from time to time designate one or more other offices
or agencies where Warrant Certificates may be surrendered or presented for any
of such purposes and may from time to time rescind such designations. The
Company will give prompt written notice to the Warrant Agent of any such
designation or rescission and of any change in the location of any such other
office or agency.
Section 5.02 Payment of Taxes. The Company will pay all documentary, stamp
or similar issue or transfer taxes and other governmental charges, if any, in
respect of the issuance or delivery of Warrant Shares upon the exercise of
Warrants; provided that the Company shall not be required to pay any taxes or
charges which may be payable in respect of any transfer involved in the issue of
any Warrants or any Warrant Shares in a name other than that of the Holder of a
Warrant surrendered upon exercise, and the Company shall not be required to
issue or deliver such Warrant Shares unless or until the Person or Persons
requesting the issuance thereof shall have paid to the Company the amount of
such taxes or charges or shall have established to the satisfaction of the
Company that such taxes or charges have been paid.
Section 5.03 Reservation of Warrant Shares.
(a) The Company will at all times reserve and keep available for issuance
and delivery, free and clear of all preemptive rights, such number of shares of
its authorized but unissued Common Stock or other securities of the Company from
time to time issuable upon exercise of the Warrants as will be sufficient to
permit the exercise in full of all outstanding Warrants.
(b) Before taking any action which would cause an adjustment pursuant to
Section 6.01 hereof to reduce the Series A Exercise Price or the Series B
Exercise Price below the then par value (if any) of its Common Stock, the
Company will take any corporate action which may, in the opinion of its counsel,
be necessary in order that the Company may validly and legally issue fully paid
and nonassessable Warrant Shares at the Exercise Price as so adjusted.
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(c) The Company covenants that all Warrant Shares which may be issued upon
exercise of Warrants will, upon issue, be fully paid, nonassessable, and free of
preemptive rights with respect to the issuance thereof.
Section 5.04 Stock Exchange Listings. The Company will from time to time
use commercially reasonable efforts to take all action which may be necessary so
that the Warrant Shares, immediately upon their issuance upon the exercise of
Warrants, will be listed on the principal securities exchanges, automated
quotation systems or other markets within the United States of America, if any,
on which other shares of Common Stock are then listed.
ARTICLE 6
ADJUSTMENT OF EXERCISE PRICE AND NUMBER OF WARRANT SHARES
ISSUABLE
Section 6.01 Adjustment of Exercise Price and Number of Warrant Shares
Issuable. The Series A Exercise Price, the Series B Exercise Price and the
number of Warrant Shares issuable upon the exercise of each Warrant are subject
to adjustment from time to time upon the occurrence of the events enumerated in
this Article 6.
(a) Stock Dividends, Subdivisions and Combinations.
Except as otherwise provided in Section 6.01(b), if the Company (i) pays a
dividend or makes a distribution on its Common Stock in shares of its Common
Stock, (ii) subdivides its outstanding shares of Common Stock into a greater
number of shares, or (iii) combines its outstanding shares of Common Stock into
a smaller number of shares, then (x) (A) the number of shares of Common Stock
for which a Series A Warrant is exercisable immediately after the occurrence of
any such event shall be adjusted to equal the number of shares of Common Stock
that a record holder of the same number of shares of Common Stock for which a
Series A Warrant is exercisable immediately prior to the occurrence of such
event would own or be entitled to receive after the happening of such event and
(B) the Series A Exercise Price shall be adjusted to equal (I) the Series A
Exercise Price in effect prior to such adjustment multiplied by the number of
shares of Common Stock for which a Series A Warrant is exercisable prior to the
adjustment, divided by (II) the number of shares for which a Series A Warrant is
exercisable immediately after such adjustment and (y) (A) the number of shares
of Common Stock for which a Series B Warrant is exercisable immediately after
the occurrence of any such event shall be adjusted to equal the number of shares
of Common Stock that a record holder of the same number of shares of Common
Stock for which a Series B Warrant is exercisable immediately prior to the
occurrence of such event would own or be entitled to receive after the happening
of such event and (B) the Series B Exercise Price shall be adjusted to equal (I)
the Series B Exercise Price in effect prior to such adjustment multiplied by the
number of shares of Common Stock for which a Series B Warrant is exercisable
prior to the adjustment, divided by (II) the number of shares for which a Series
B Warrant is exercisable immediately after such adjustment.
The adjustment under this Section 6.01(a) shall become effective
immediately after the record date in the case of a dividend or distribution and
immediately after the effective date in the case of a subdivision or
combination.
11
(b) When De Minimis Adjustment May Be Deferred.
No adjustment in the Series A Exercise Price or Series B Exercise Price
need be made unless the adjustment would require an increase or decrease of at
least 1% in the Series A Exercise Price or Series B Exercise Price, as the case
may be. Any adjustments that are not made shall be carried forward and taken
into account in any subsequent adjustment. All calculations under this Section
6.01 shall be made to the nearest cent or to the nearest 1/1,000th of a share,
as the case may be.
(c) Notice of Adjustment.
Whenever the Series A Exercise Price or Series B Exercise Price is
adjusted, the Company shall provide the notices required by Section 8.02.
(d) Reorganization, Reclassification, Merger, Consolidation or Sale.
After the date hereof, if the Company reorganizes or reclassifies its
Capital Stock, consolidates or merges with or into, or transfers or leases all
or substantially all its assets to, any Person, upon consummation of such
transaction each Warrant shall automatically become exercisable solely for the
kind and amount of securities, cash or other assets which the Holder would have
owned immediately after the reorganization, reclassification, consolidation,
merger, transfer or lease if the Holder had exercised the Warrant immediately
before the effective date of the transaction. Concurrently with the consummation
of such transaction, the corporation formed by or surviving any such
consolidation or merger if other than the Company, or the Person to which such
sale or conveyance shall have been made, shall enter into a supplemental Warrant
Agreement so providing and further providing for adjustments which shall be as
nearly equivalent as may be practical to the adjustments provided for in this
Section 6.01(d). The successor company shall mail to Holders a notice describing
the supplemental Warrant Agreement. This Section 6.01(d) shall not apply to a
transaction to which Section 6.01(a) applies.
(e) Form of Warrant Certificates.
Irrespective of any adjustments in the Series A Exercise Price, Series B
Exercise Price or the number or kind of shares purchasable upon the exercise of
the Warrants, Warrant Certificates theretofore or thereafter issued may continue
to express the same price and number and kind of shares as are stated in the
Warrant Certificates initially issuable pursuant to this Agreement.
Section 6.02 Fractional Interests. The Company shall not be required to
issue fractional Warrant Shares or scrip representing fractional shares on the
exercise of Warrants. If more than one Warrant shall be exercised in full at the
same time by the same Holder, the number of full Warrant Shares which shall be
issuable upon the exercise thereof shall be computed on the basis of the
aggregate number of Warrant Shares purchasable on exercise of the Warrants so
presented. If any fraction of a Warrant Share would, except for the provisions
of this Section 6.02, be issuable on the exercise of any Warrants (or specified
portion thereof), the Company shall pay an amount in cash equal to the Daily
Price per Warrant Share, as determined on the Business Day immediately preceding
the date the Warrant is presented for exercise, multiplied by such fraction,
computed to the nearest whole U.S. cent.
12
Section 6.03 Notices to Holders. Upon any adjustment pursuant to Section
6.01, the Company shall promptly thereafter (i) cause to be filed with the
Warrant Agent an Officer's Certificate setting forth the Series A Exercise Price
and the Series B Exercise Price after such adjustment and setting forth in
reasonable detail the method of calculation and the facts upon which such
calculations are based and setting forth the number of Warrant Shares (or
portion thereof) or the kind and amount of securities, cash or other assets to
which a Holder is entitled after such adjustment upon exercise of a Warrant and
payment of the adjusted Series A Exercise Price or Series B Exercise Price,
which certificate shall be conclusive evidence of the correctness of the matters
set forth therein, and (ii) cause to be given to each of the Holders, at the
address of such Holder appearing in the Register, written notice of such
adjustments by first-class mail, postage prepaid. Where appropriate, such notice
may be given in advance and included as a part of the notice required to be
mailed under the other provisions of this Article 6.
Section 6.04 No Rights as Stockholders. Nothing contained in this
Agreement or the Warrant Certificates shall be construed as conferring upon the
holders of Warrants the right to vote or to consent or to receive notice as
stockholders in respect of the meetings of stockholders or the election of
directors of the Company or any other matter, or any rights whatsoever,
including the right to receive dividends, as stockholders of the Company.
ARTICLE 7
WARRANT AGENT
Section 7.01 Warrant Agent. The Warrant Agent undertakes the duties and
obligations imposed by this Agreement upon the following terms and conditions,
by all of which the Company and the Holders, by their acceptance of the
Warrants, shall be bound:
(a) The statements contained herein and in the Warrant Certificates shall
be taken as statements of the Company and the Warrant Agent assumes no
responsibility for the correctness of any of the same except such as describe
the Warrant Agent or action taken or to be taken by it. The Warrant Agent
assumes no responsibility with respect to the distribution of the Warrants
except as herein otherwise provided.
(b) The Warrant Agent has no duty to determine: (i) when any adjustment
under Article 6 should be made, (ii) the manner of calculating any such
adjustment or (iii) the amount of any such adjustment. The Warrant Agent has no
duty to determine whether any provisions of a supplemental Warrant Agreement
under Section 6.01(d) or 8.02 are correct. The Warrant Agent makes no
representation as to the validity or value of any securities or assets issued
upon exercise of Warrants.
(c) The Warrant Agent shall not be accountable with respect to the
validity or value or the kind or amount of any Warrant Shares or of any
securities or property which may at any time be issued or delivered upon the
exercise of any Warrant or with respect to whether any such Warrant Shares or
other securities will, when issued, be validly issued and fully paid and
nonassessable, and makes no representation with respect thereto.
(d) The Warrant Agent shall not be responsible for any failure of the
Company to comply with any of the covenants contained in this Agreement or in
the Warrant Certificates.
13
(e) In the absence of bad faith on the part of the Warrant Agent, the
Warrant Agent may rely, and will be protected in acting or refraining from
acting, upon any resolution, certificate, statement, instrument, opinion,
report, notice, request, direction, consent, order, bond, debenture, note, other
evidence of indebtedness or other document believed by the Warrant Agent to be
genuine and to have been signed or presented by the proper Person. The Warrant
Agent need not investigate any fact or matter stated in the document, but, in
the case of any document which is specifically required to be furnished to the
Warrant Agent pursuant to any provision hereof, the Warrant Agent shall examine
the document to determine whether it conforms to the requirements of the
Agreement (but need not confirm or investigate the accuracy of mathematical
calculations or other facts stated therein). The Warrant Agent, in its sole
discretion, may make further inquiry or investigation into such facts or matters
as the Warrant Agent may deem appropriate under the circumstances.
(f) The Warrant Agent may act through its attorneys and agents and will
not be responsible for the misconduct or negligence of any agent appointed with
due care.
(g) The Warrant Agent will be under no obligation to exercise any of the
rights or powers vested in it by this Agreement at the request or direction of
any of the Holders, unless such Holders have offered to the Warrant Agent
reasonable security or indemnity against the costs, expenses and liabilities
that might be incurred by it in compliance with such request or direction. All
rights of action under this Agreement or under any of the Warrant Certificates
may be enforced by the Warrant Agent without the possession of any of the
Warrants or the production thereof at any trial or other proceeding relative
thereto, and any such action, suit or proceeding instituted by the Warrant Agent
shall be brought in its name as Warrant Agent and any recovery of judgment shall
be for the ratable benefit of the Holders, as their respective rights or
interests may appear.
(h) The Warrant Agent may consult with counsel, and the written advice of
such counsel or any Opinion of Counsel will be full and complete authorization
and protection in respect of any action taken, suffered or omitted by it
hereunder in good faith and in reliance thereon.
(i) No provision of this Agreement will require the Warrant Agent to
expend or risk its own funds or otherwise incur any financial liability in the
performance of its duties hereunder, or in the exercise of its rights or powers,
unless it receives indemnity satisfactory to it against any loss, liability or
expense.
(j) The Warrant Agent shall act hereunder solely as agent for the Company,
and its duties shall be determined solely by the provisions hereof. No provision
of this Agreement shall be construed to relieve the Warrant Agent from liability
for its own negligent action, its own negligent failure to act or its own
willful misconduct.
Section 7.02 Individual Rights of Warrant Agent. The Warrant Agent, and
any stockholder, director, officer or employee of the Warrant Agent, may buy,
sell or deal in any of the Warrants or other securities of the Company or become
pecuniarily interested in any transaction in which the Company may be
interested, or contract with or lend money to the Company or otherwise act as
fully and freely as though it were not Warrant Agent under this
14
Agreement. Nothing herein shall preclude the Warrant Agent from acting in any
other capacity for the Company or for any other Person.
Section 7.03 Replacement of Warrant Agent. (a) The Warrant Agent may
resign at any time by 30 days' prior written notice to the Company or may be
removed at any time by the Company upon 30 days' prior written notice. A
resignation or removal of the Warrant Agent and appointment of a successor
Warrant Agent will become effective only upon the successor Warrant Agent's
acceptance of appointment as provided in Section 7.03(b).
(b) Upon delivery by the successor Warrant Agent of a written acceptance
of its appointment to the retiring Warrant Agent and to the Company, (i) the
retiring Warrant Agent will transfer all property held by it as Warrant Agent to
the successor Warrant Agent, (ii) the resignation or removal of the retiring
Warrant Agent will become effective, and (iii) the successor Warrant Agent will
have all the rights, powers and duties of the Warrant Agent under this
Agreement. Upon request of any successor Warrant Agent, the Company will execute
any and all instruments for fully vesting in and confirming to the successor
Warrant Agent all such rights, powers and duties. The Company will give notice
of any resignation and any removal of the Warrant Agent and each appointment of
a successor Warrant Agent to all Holders, and include in the notice the name of
the successor Warrant Agent and the address of its Corporate Trust Office.
Section 7.04 Successor Warrant Agent by Merger. (a) If the Warrant Agent
consolidates with, merges or converts into, or transfers all or substantially
all of its corporate trust business to, another Person, the resulting, surviving
or transferee Person without any further act will be the successor Warrant Agent
with the same effect as if the successor Warrant Agent had been named as the
Warrant Agent in this Agreement.
(b) If, at the time such successor to the Warrant Agent shall succeed to
the agency created by this Agreement, any of the Warrant Certificates have been
countersigned but not delivered, the successor Warrant Agent may adopt the
countersignature of the original Warrant Agent; and if any of the Warrant
Certificates shall not have been countersigned, the successor Warrant Agent may
countersign such Warrant Certificates, and in all such cases such Warrant
Certificates shall have the full force and effect provided in the Warrant
Certificates and in this Agreement.
Section 7.05 Holder Lists. The Warrant Agent shall preserve in as current
a form as is reasonably practicable the most recent list available to it of the
names and addresses of all Holders. If the Warrant Agent is not the Registrar,
the Company shall promptly furnish to the Warrant Agent at such times as the
Warrant Agent may request in writing, a list in such form and as of such date as
the Warrant Agent may reasonably require of the names and addresses of the
Holders.
ARTICLE 8
MISCELLANEOUS.
Section 8.01 Notices. (a) Any notice or communication to the Company will
be deemed given if in writing (i) when delivered in person, or (ii) five days
after mailing when
15
mailed by registered or certified mail, or (iii) when sent by facsimile
transmission, with transmission confirmed. Any notice to the Warrant Agent will
be effective only upon receipt. In each case the notice or communication should
be addressed as follows:
if to the Company:
TRICO MARINE SERVICES, INC.
0000 Xxxxxxxxxxxx, Xxxxx 000
Xxxxxxx, XX 00000
Attention:
Facsimile:
if to the Warrant Agent:
[MELLON INVESTOR SERVICES, L.L.C.
Plaza of the Americas
000 Xxxxx Xxxxx Xxxxxx, Xxxxx 0000
Xxxxxx, XX 00000-0000]
Attention:
Facsimile:
The Company or the Warrant Agent by notice to the other may designate
additional or different addresses for subsequent notices or communications.
(b) Except as otherwise expressly provided with respect to published
notices, any notice or communication to a Holder will be deemed given when
mailed to the Holder at its address as it appears on the Register by first class
mail or, as to any Global Warrant registered in the name of DTC or its nominee,
as agreed by the Company, the Warrant Agent and DTC. Copies of any notice or
communication to a Holder, if given by the Company, will be mailed to the
Warrant Agent at the same time. Defect in mailing a notice or communication to
any particular Holder will not affect its sufficiency with respect to other
Holders.
Section 8.02 Supplements and Amendments. (a) The Company and the Warrant
Agent may amend or supplement this Agreement or the Warrant Certificates without
notice to or the consent of any Holder
(i) to cure any ambiguity, defect or inconsistency in the
Agreement or the Warrant Certificates;
(ii) to evidence and provide for the acceptance of an
appointment hereunder by a successor Warrant Agent; or
(iii) to make any other change that does not adversely affect
the rights of any Holder.
(b) Except as otherwise provided in subsections (a) above or (c) below,
the Company and the Warrant Agent may amend this Agreement and the Warrant
Certificates with the written consent of the Holders of a majority of the
outstanding Warrants, and the Holders of a majority of the
16
outstanding Warrants by written notice to the Warrant Agent may waive future
compliance by the Company with any provision of this Agreement or the Warrant
Certificates.
(c) Notwithstanding the provisions of subsection (b) above, without the
consent of each Holder affected, an amendment, supplement or waiver may not
(i) increase the Series A Exercise Price or Series B Exercise
Price except, in each case, for adjustments provided for in Article 6;
(ii) decrease the number of Warrant Shares or other securities
or property issuable upon exercise of the Warrants except, in each case,
for adjustments provided for in Article 6; or
(iii) designate an earlier Series A Expiration Date or Series
B Expiration Date.
(d) It is not necessary for Holders to approve the particular form of any
proposed amendment, supplement or waiver, but is sufficient if their consent
approves the substance thereof.
(e) An amendment, supplement or waiver under this Section 8.02 will become
effective on receipt by the Warrant Agent of written consents from the Holders
of the requisite percentage of the outstanding Warrants. After an amendment,
supplement or waiver under this Section 8.02 becomes effective, the Company will
send to the Holders affected thereby a notice briefly describing the amendment,
supplement or waiver. Any failure of the Company to send such notice, or any
defect therein, will not, however, in any way impair or affect the validity of
any such amendment, supplement or waiver.
(f) After an amendment, supplement or waiver becomes effective, it will
bind every Holder unless such amendment, supplement or waiver is of the type
described in Section 8.02(c). If the amendment, supplement or waiver is of the
type described in Section 8.02(c), then the amendment, supplement or waiver will
bind each Holder that has consented to it and every subsequent Holder of a
Warrant with respect to which consent was granted.
(g) If an amendment, supplement or waiver changes the terms of a Warrant,
the Warrant Agent may require the Holder to deliver the Warrant Certificate
representing such Warrant to the Warrant Agent so that the Warrant Agent may
place an appropriate notation of the new terms on the Warrant Certificate and
return it to the Holder, or exchange it for a new Warrant Certificate that
reflects the new terms. The Warrant Agent may also place an appropriate notation
on any Warrant Certificate thereafter countersigned. However, the effectiveness
of the amendment, supplement or waiver is not affected by any failure to
annotate or exchange Warrant Certificates as provided in this Section 8.02(g).
(h) The Warrant Agent is entitled to receive, and will be fully protected
in relying upon, an Opinion of Counsel stating that the execution of any
amendment, supplement or waiver authorized pursuant to this Section 8.02 is
authorized or permitted by this Agreement. If the Warrant Agent has received
such an Opinion of Counsel, the Warrant Agent shall sign the
17
amendment, supplement or waiver so long as the same does not adversely affect
the rights of the Warrant Agent.
Section 8.03 Governing Law. This Agreement, the Warrant Certificates and
the Warrants shall be governed by, and construed in accordance with, and all
disputes arising out of or relating to this Agreement, the Warrant Certificates
and the Warrants will be determined in accordance with, the internal laws of the
State of New York, without giving effect to the conflicts of laws principles
thereof.
Section 8.04 No Adverse Interpretation of Other Agreements. This Agreement
may not be used to interpret any other agreement of the Company, and no such
other agreement may be used to interpret this Agreement.
Section 8.05 Successors. This Agreement will inure to the benefit of and
bind the Company, the Warrant Agent and their respective successors and the
Holders and their respective transferees.
Section 8.06 Counterparts; Multiple Originals. The parties may sign one or
more counterparts of this Agreement all of which together shall constitute a
single agreement. The parties may sign any number of copies of this Agreement.
Each signed copy shall be an original, but all of them together shall represent
the same agreement.
Section 8.07 Separability. In case any provision in this Agreement or in
the Warrant Certificates is invalid, illegal or unenforceable, the validity,
legality and enforceability of the remaining provisions will not in any way be
affected or impaired thereby.
Section 8.08 Table of Contents and Headings. The Table of Contents and
headings of the Articles, Sections and subsections of this Agreement have been
inserted for convenience of reference only, are not to be considered a part of
this Agreement and in no way modify or restrict any of the terms and provisions
of this Agreement.
Section 8.09 Benefits of this Agreement. Nothing in this Agreement shall
be construed to give to any Person other than the Company, the Warrant Agent and
the Holders any legal or equitable right, remedy or claim under this Agreement.
Section 8.10 Waiver of Jury Trial. TO THE FULLEST EXTENT PERMITTED UNDER
APPLICABLE LAW, THE COMPANY AND THE WARRANT AGENT HEREBY, AND THE HOLDERS BY
THEIR ACCEPTANCE OF THE WARRANTS THEREBY, IRREVOCABLY WAIVE THEIR RESPECTIVE
RIGHTS TO A JURY TRIAL WITH RESPECT TO ANY ACTION, CLAIM OR OTHER PROCEEDING
ARISING OUT OF ANY DISPUTE IN CONNECTION WITH THIS AGREEMENT, THE WARRANT
CERTIFICATES OR THE WARRANTS, ANY RIGHTS OR OBLIGATIONS HEREUNDER OR THEREUNDER,
OR THE PERFORMANCE OF SUCH RIGHTS AND OBLIGATIONS.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed, as of the day and year first above written.
TRICO MARINE SERVICES, INC.
18
By: __________________________________
Name:
Title:
[MELLON INVESTOR SERVICES, L.L.C.], as
Warrant Agent
By: __________________________________
Name:
Title:
19
EXHIBIT A
[Form of Face of Warrant Certificate]
No. __________ Warrants to Subscribe for shares of
Common Stock CUSIP No.
Series [A][B] Warrant Certificate
This Warrant Certificate certifies that [ ], or its registered assigns, is
the registered holder of Series [A][B] Warrants (the "Series [A][B] Warrants")
to purchase Common Stock, par value $0.01 per share (the "Common Stock"), of
Trico Marine Services, Inc., a Delaware corporation. Each Series [A][B] Warrant
entitles the registered holder upon exercise at any time from 9:00 a.m. on the
Issue Date until 5:00 p.m. New York City Time on [insert third or fifth
anniversary Effective Date of Plan] (the "Series [A][B] Expiration Date"), to
receive from the Company [ ] fully paid and nonassessable shares of Common Stock
(the "Warrant Shares") at an initial exercise price (the "Series [A][B] Exercise
Price") of $____ per share payable upon surrender of this Warrant Certificate at
the office or agency of the Warrant Agent, subject to the conditions set forth
herein and in the Warrant Agreement referred to on the reverse hereof. The
Series [A][B] Exercise Price and number of Warrant Shares issuable upon exercise
of the Series [A][B] Warrants are subject to adjustment upon the occurrence of
certain events set forth in the Warrant Agreement.
Reference is hereby made to the further provisions of this Warrant
Certificate set forth on the reverse hereof and such further provisions shall
for all purposes have the same effect as though fully set forth at this place.
IN WITNESS WHEREOF, the Company has caused this Warrant Certificate to be
signed below manually or by facsimile by its duly authorized officer.
Dated: _______________, 200_
TRICO MARINE SERVICES, INC.
By: _____________________________
Name:
Title:
Countersigned:
[MELLON INVESTOR SERVICES, L.L.C.],
as Warrant Agent
By: ____________________________________
Name:
Title:
EXHIBIT B
TRICO MARINE SERVICES, INC.
[Form of Reverse of Warrant Certificate]
1. Warrant Agreement.
The Series [A][B] Warrants evidenced by this Warrant Certificate are part
of a duly authorized issue of Series [A][B] Warrants issued or to be issued
pursuant to a Warrant Agreement dated as of ________________, 200_ (the "Warrant
Agreement"), between the Company and [Mellon Investor Services, L.L.C.], as
warrant agent (the "Warrant Agent"), which Warrant Agreement is hereby
incorporated by reference in and made a part of this instrument and is hereby
referred to for a description of the rights, limitation of rights, obligations,
duties and immunities thereunder of the Warrant Agent, the Company and the
holders (the words "holders" or "holder" meaning the registered holders or
registered holder) of the Series [A][B] Warrants. To the extent permitted by
law, in the event of an inconsistency or conflict between the terms of this
Warrant Certificate and the Warrant Agreement, the terms of the Warrant
Agreement will prevail. Capitalized terms used in this Warrant Certificate that
are defined in the Warrant Agreement shall have the meanings provided in the
Warrant Agreement for purposes of this Warrant Certificate, unless otherwise
defined in this Warrant Certificate.
2. Exercise.
Series [A][B] Warrants may be exercised at any time on or after 9:00 a.m
on the Issue Date and on or before 5:00 p.m. New York City time on the Series
[A][B] Expiration Date. In order to exercise all or any of the Series [A][B]
Warrants represented by this Warrant Certificate, the holder must deliver to the
Warrant Agent, at its Corporate Trust Office set forth in the Warrant Agreement,
this Warrant Certificate and the form of election to purchase below duly
completed, which signature shall be medallion guaranteed by an institution which
is a member of a Securities Transfer Association recognized signature guarantee
program, and upon payment to the Warrant Agent for the account of the Company of
the Series [A][B] Exercise Price in the manner set forth in the Warrant
Agreement for the number of Warrant Shares in respect of which such Warrants are
then exercised.
No Series [A][B] Warrant may be exercised after 5:00 p.m., New York City
time on the Series [A][B] Expiration Date, and to the extent not exercised by
such time the Series [A][B] Warrants shall become void.
Notwithstanding anything to the contrary set forth in this Warrant
Certificate or in the Warrant Agreement, no holder may exercise a Warrant if the
issuance of Warrant Shares to the holder of such Warrant upon the exercise
thereof would cause the percentage of shares of Common Stock then outstanding
that is owned by Aliens to exceed the Permitted Percentage.
3. Adjustments.
The Warrant Agreement provides that, upon the occurrence of certain
events, the Series [A][B] Exercise Price set forth on the face hereof may,
subject to certain conditions, be adjusted. The Warrant Agreement also provides
that the number of shares of Common Stock issuable upon the exercise of each
Series [A][B] Warrant shall be adjusted in certain events.
4. No Fractional Shares.
No fractions of a share of Common Stock will be issued upon the exercise
of any Series [A][B] Warrant, but the Company will pay the cash value thereof
determined as provided in the Warrant Agreement.
5. Registered Form; Transfer and Exchange.
The Series [A][B] Warrants are in registered form. Warrant Certificates,
when surrendered at the office of the Warrant Agent by the registered holder
thereof in person or by legal representative or attorney duly authorized in
writing, may be exchanged, in the manner and subject to the limitations provided
in the Warrant Agreement, but without payment of any service charge (except as
specified in the Warrant Agreement), for another Warrant Certificate or Warrant
Certificates of like tenor evidencing in the aggregate a like number of Series
[A][B] Warrants.
Upon due presentation for registration of transfer of this Warrant
Certificate at the office of the Warrant Agent a new Warrant Certificate or
Warrant Certificates of like tenor and evidencing in the aggregate a like number
of Series [A][B] Warrants shall be issued to the transferee(s) in exchange for
this Warrant Certificate, subject to the limitations provided in the Warrant
Agreement, without charge except for any tax or other governmental charge
imposed in connection therewith.
The Company and the Warrant Agent may deem and treat the registered
holder(s) thereof as the absolute owner(s) of this Warrant Certificate
(notwithstanding any notation of ownership or other writing hereon made by
anyone), for the purpose of any exercise hereof, of any distribution to the
holder(s) hereof, and for all other purposes, and neither the Company nor the
Warrant Agent shall be affected by any notice to the contrary. Neither the
Series [A][B] Warrants nor this Warrant Certificate entitles any holder hereof
to any rights of a stockholder of the Company.
6. Countersignature.
This Warrant Certificate shall not be valid unless countersigned by the
Warrant Agent.
7. Governing Law.
This Warrant Certificate shall be governed by and construed in accordance
with the internal laws of the State of New York
8. Abbreviations.
22
Customary abbreviations may be used in the name of a Holder or an
assignee, such as: TEN COM (= tenants in common), TEN ENT (= tenants by the
entireties), JT TEN (= joint tenants with right of survivorship and not as
tenants in common), CUST (= Custodian) and U/G/M/A/ (= Uniform Gifts to Minors
Act).
A copy of the Warrant Agreement may be obtained by the holder hereof upon
written request to the Company.
23
[Form of Election to Purchase]
(To Be Executed Upon Exercise Of Warrant)
The undersigned hereby irrevocably elects to exercise the right,
represented by this Warrant Certificate, to receive _____ shares of Common Stock
and herewith tenders payment for such shares to the order of TRICO MARINE
SERVICES, INC., in the amount of $ _________ in accordance with the terms
hereof.
______________________________
Signature
Date:
______________________________
Signature Guaranteed
Signatures must be guaranteed by an "eligible guarantor institution" meeting the
requirements of the Warrant Agent, which requirements include membership or
participation in the Security Transfer Association Medallion Program ("STAMP")
or such other "signature guarantee program" as may be determined by the Warrant
Agent in addition to, or in substitution for, STAMP, all in accordance with the
Securities Exchange Act of 1934, as amended, and the rules and regulations
promulgated thereunder.
SCHEDULE OF EXCHANGES OF INTERESTS OF GLOBAL WARRANTS
The following exchanges of a part of this Global Warrant have been made:
Amount of decrease in Amount of increase in Number of Series [A][B] in
number of Series [A][B] number of Series [A][B] this Global Warrant
Warrants in this Global Warrants in this Global following such decrease or
Date of Exchange Warrant Warrant increase
---------------------- ----------------------- ----------------------- --------------------------
[FORM OF TRANSFER NOTICE]
FOR VALUE RECEIVED the undersigned registered holder hereby sell(s),
assign(s) and transfer(s) unto _______________ (the "Assignee") (Please type or
print block letters) ______________________________ (Please print or typewrite
name and address including zip code of assignee) the within Warrant Certificate
and all rights thereunder, hereby irrevocably constituting and appointing
attorney to transfer the Series [A][B] Warrant represented by this Warrant
Certificate on the books of the Company with full power of substitution in the
premises.
Date:
Seller
By: ________________________
NOTICE: The signature to this assignment must correspond with the name as
written upon the face of the within-mentioned instrument in every particular,
without alteration or any change whatsoever.
Signature Guarantee: ____________________________________________________
Signatures must be guaranteed by an "eligible guarantor institution" meeting the
requirements of the Registrar, which requirements include membership or
participation in the Securities Transfer Association Medallion Program ("STAMP")
or such other "signature guarantee program" as may be determined by the
Registrar in addition to, or in substitution for, STAMP, all in accordance with
the Securities Exchange Act of 1934, as amended, and the rules and regulations
promulgated thereunder.
EXHIBIT C
DTC LEGEND
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE COMPANY OR ITS
AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE
ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO
CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS A BENEFICIAL INTEREST HEREIN.
TRANSFERS OF THIS GLOBAL WARRANT ARE LIMITED TO TRANSFERS IN WHOLE, BUT NOT IN
PART, TO NOMINEES OF DTC OR TO A SUCCESSOR THEREOF OR SUCH SUCCESSOR'S NOMINEE
AND TRANSFERS OF PORTIONS OF THIS GLOBAL WARRANT ARE LIMITED TO TRANSFERS MADE
IN ACCORDANCE WITH THE TRANSFER PROVISIONS OF THE WARRANT AGREEMENT.
