SECURITIES PURCHASE AGREEMENT
Exhibit 4.1
SECURITIES PURCHASE AGREEMENT (the “Agreement”), dated as of May 14, 2008, by and among Trico
Marine Services, Inc., a Delaware corporation with headquarters located at 0000 Xxxxxxxxx Xxxxxxx,
Xxxxx 0000, Xxxxxxx, Xxxxx 00000 (the “Company”), and the investors listed on the Schedule of
Purchasers attached hereto (individually, a “Purchaser” and collectively, the “Purchasers”).
WHEREAS:
A. The Company and each Purchaser is executing and delivering this Agreement in reliance upon
the exemption from securities registration afforded by Rule 144A and Section 4(2) of the Securities
Act of 1933, as amended (the “Securities Act”), and Rule 506 of Regulation D (“Regulation D”) as
promulgated by the United States Securities and Exchange Commission (the “Commission”) under the
Securities Act.
B. The Company has authorized the issuance of $300,000,000 in aggregate principal amount of
its 6.50% Senior Convertible Debentures due 2028 (the “Debentures”), which Debentures shall be
convertible into the common stock, $0.01 par value per share (the “Common Stock”), of the Company
(as converted, collectively, the “Conversion Shares”), and shall be issued pursuant to and by the
provisions of an Indenture dated as of the Closing Date (as defined below) between the Company and
Xxxxx Fargo Bank, National Association, as trustee (the “Trustee”), in substantially the form
attached hereto as Exhibit A (the “Indenture”).
C. Each Purchaser wishes to purchase, and the Company wishes to sell, upon the terms and
conditions stated in this Agreement, that aggregate principal amount of Debentures set forth
opposite such Purchaser’s name in column (3) on the Schedule of Purchasers (which aggregate amount
for all Purchasers shall be $300,000,000).
D. Contemporaneously with the execution and delivery of this Agreement, the parties hereto are
executing and delivering a Registration Rights Agreement, substantially in the form attached hereto
as Exhibit B (as amended or modified from time to time, the “Registration Rights
Agreement”), pursuant to which the Company has agreed to provide certain registration rights with
respect to the Debentures and the Conversion Shares under the Securities Act and the rules and
regulations promulgated thereunder, and applicable state securities laws.
E. The Debentures and the Conversion Shares collectively are referred to herein as the
“Securities”.
NOW, THEREFORE, the Company and each Purchaser hereby agree as follows:
1. PURCHASE AND SALE OF DEBENTURES.
(a) Purchase and Sale of Debentures.
(i) General. The Debentures are being offered and sold to the Purchasers
without registration under the Securities Act, in reliance on an exemption
therefrom and pursuant to the representations and warranties of each Purchaser as set
forth in Section 2 below. The Company shall not be obligated to deliver any of the
Debentures to be delivered hereunder except upon payment for all the Debentures to be
purchased as provided herein.
(ii) Purchase and Sale of Debentures at Closing. Subject to the satisfaction
(or waiver) of the conditions set forth in Sections 5 and 6 below, the Company shall issue
and sell to each Purchaser, and each Purchaser severally, but not jointly, agrees to
purchase from the Company on the Closing Date (as defined below) a principal amount of
Debentures as is set forth opposite such Purchaser’s name in column (3) on the Schedule of
Purchasers, or in the event of delivery of a Purchase Election Notice (as defined below), up
to 50% of the principal amount of Debentures as is set forth opposite such Purchaser’s name
in column (3) on the Schedule of Purchasers in accordance with such Purchaser’s Purchase
Election Notice (the “Closing”).
(iii) Purchaser Election. If the conditions set forth in Section 6(o) below
(the “Section 6(o) Conditions”) are not satisfied on or prior to the earlier of (x) such
date as the Company has delivered written notice to the Purchasers that the Section 6(o)
Conditions cannot be satisfied (which notice shall be delivered promptly upon any occurrence
that would result in the Company’s failure to or inability to, directly or indirectly,
satisfy the Section 6(o) Conditions, including that the Norwegian Register of Business
Enterprises will not register the 20,000,000 new shares (the “Private Placement Shares”) of
DeepOcean ASA, a Norwegian public limited company (“DeepOcean”), each with the nominal value
of NOK 0.50, issuable in the private placement by DeepOcean to Trico Shipping AS, a
Norwegian limited liability company and a wholly owned subsidiary of the Company), and (y)
May 30, 2008 (or such later date as extended by a unanimous written approval of the
Purchasers) (the “Closing Conditions Deadline”), then each Purchaser may elect to purchase,
at such Purchaser’s sole option, subject to the satisfaction (or waiver) of the conditions
set forth in Sections 5 and 6 (other than the Section 6(o) Conditions) below, up to 50% of
the principal amount of Debentures as is set forth opposite such Purchaser’s name in column
(3) on the Schedule of Purchasers by delivering written notice to the Company within three
(3) Business Days after the Closing Conditions Deadline (the “Purchase Election Notice
Deadline”) stating the amount of Debentures such Purchaser has elected to purchase (an
“Purchase Election Notice”). The Company shall promptly, but in any event within one (1)
Business Day, deliver a copy of each such Purchase Election Notice to each other Purchaser.
Furthermore, in the event that the Closing relates to the delivery of one or more Purchase
Election Notices, the Indenture shall be revised to reflect that the maximum principal
amount of Debentures issuable thereunder shall equal the aggregate Purchase Price paid by
all Purchasers at the Closing and the number in the definition of Conversion Rate shall be
replaced by a number equal to the quotient of (x) $1,000 and (y) 120% of Closing Sale Price
(as defined in the Indenture) on May 15, 2008, but not higher than $42.50; provided that, if
120% of the Closing Sale Price on May 15, 2008 exceeds $42.50, such number shall be the
higher of (i) $42.50 or (ii) 115% of the Closing Sale Price on May 15, 2008. As used
herein, “Business Day” means any day other than Saturday, Sunday or other day on which
commercial banks in The City of New York are authorized or required by law to remain closed.
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(iv) Restrictive Legend. It is understood and acknowledged that upon original
issuance thereof, and until such time as the same is no longer required under the applicable
requirements of the Securities Act, the Securities (and all securities issued in exchange
therefor or in substitution thereof) shall bear the legend(s) identified in Section 2.08 of
the Indenture (along with such other legends as the Company and its counsel deem necessary).
(v) Registration Rights. Holders of the Securities (including the Purchasers
and their direct and indirect transferees) will be entitled to the benefits of the
Registration Rights Agreement pursuant to which the Company will agree, among other things,
to file with the Commission, under the circumstances set forth therein, a shelf registration
statement pursuant to Rule 415 under the Securities Act (the “Resale Registration
Statement”) relating to resales by such holders of the Debentures and the Conversion Shares,
and to use its reasonable best efforts to cause the Resale Registration Statement to be
declared effective within the time periods specified therein.
(vi) Closing. The Closing shall occur on the Closing Date at the offices of
Xxxxxxx Xxxx & Xxxxx LLP, 000 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000. The date and time of
the Closing (the “Closing Date”) shall be 10:00 a.m., New York City time, on (A) the first
(1st) Business Day after notification of the satisfaction (or waiver) of the
conditions set forth in Sections 5 and 6 below (or such later date as is mutually agreed to
by the Company and each Purchaser) or (B) in connection with a Closing relating to a
Purchase Election Notice, subject to the notification of the satisfaction (or waiver) of the
conditions set forth in Sections 5 and 6 (other than the Section 6(o) Conditions) below, on
the fifth (5th) Business Day after the Closing Conditions Deadline (or such later
date as is mutually agreed to by the Company and each Closing Purchaser (as defined below)).
(vii) Purchase Price. The purchase price for the Debentures to be purchased by
each Purchaser at the Closing shall be the amount set forth opposite such Purchaser’s name
in column (4) on the Schedule of Purchasers or, in the event the Closing relates to one or
more Purchase Election Notices, the amount set forth by such Purchaser in such Purchaser’s
Purchase Election Notice (the “Purchase Price”). Each Purchaser shall pay $1.00 for each
$1.00 of principal amount of Debentures to be purchased by such Purchaser at the Closing.
(b) Form of Payment. On the Closing Date, each Purchaser purchasing Debentures at the
Closing (each, a “Closing Purchaser” and collectively, the “Closing Purchasers”) shall pay its
Purchase Price (less any amounts withheld pursuant to Section 4(g)) to the Company for the
Debentures to be issued and sold to such Closing Purchaser at the Closing, by wire transfer of
immediately available funds in accordance with the Company’s written wire instructions.
(c) Delivery. The Debentures will be delivered to the Closing Purchasers (as defined
below), or the Trustee as custodian for The Depository Trust Company (“DTC”), against payment by or
on behalf of the Closing Purchasers of the Purchase Price therefor by wire transfer in immediately
available funds, by causing DTC to credit the applicable
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Debentures to the accounts of the Closing Purchasers through the facilities of DTC. The
Debentures will be evidenced by one or more global securities in definitive form (the “Global
Debentures”) or by additional definitive securities and will be registered, in the case of the
Global Debentures, in the name of Cede & Co. as nominee of DTC, and in the other cases, in such
names and in such denominations as the Closing Purchasers shall request prior to 9:30 a.m., New
York City time, on the second Business Day preceding the Closing Date. The Debentures to be
delivered to the Closing Purchasers shall be made available to the Closing Purchasers for
inspection and packaging not later than 9:30 a.m., New York City time, on the business day next
preceding the Closing Date.
2. PURCHASER’S REPRESENTATIONS AND WARRANTIES.
Each Purchaser represents and warrants with respect to only itself that as of the date hereof
and as of the Closing Date:
(a) No Public Sale or Distribution. Such Purchaser is (i) acquiring the Debentures
and (ii) upon conversion of the Debentures, will acquire the Conversion Shares issuable upon
conversion of the Debentures, in each case, for its own account and not with a view towards, or for
resale in connection with, the public sale or distribution thereof, except pursuant to sales
registered or exempt from registration under the Securities Act; provided, however, that by making
the representations herein, such Purchaser does not agree to hold any of the Securities for any
minimum or other specific term and reserves the right to dispose of the Securities at any time in
accordance with or pursuant to a registration statement or an exemption under the Securities Act.
Such Purchaser is acquiring the Securities hereunder in the ordinary course of its business. Such
Purchaser does not presently have any agreement or understanding, directly or indirectly, with any
Person to distribute any of the Securities. As used in this Agreement, “Person” means an
individual, a limited liability company, a partnership, a joint venture, a corporation, a trust, an
unincorporated organization and a government or any department or agency thereof.
(b) Accredited Investor Status. Such Purchaser is an “accredited investor” as that
term is defined in Rule 501(a) of Regulation D and a “qualified institutional buyer” within the
meaning of Rule 144A under the Securities Act.
(c) Reliance on Exemptions. Such Purchaser understands that the Securities are being
offered and sold to it in reliance on specific exemptions from the registration requirements of
United States federal and state securities laws and that the Company is relying in part upon the
truth and accuracy of, and such Purchaser’s compliance with, the representations, warranties,
agreements, acknowledgments and understandings of such Purchaser set forth herein in order to
determine the availability of such exemptions and the eligibility of such Purchaser to acquire the
Securities.
(d) Information. Such Purchaser and its advisors, if any, have been furnished with
all materials relating to the business, finances and operations of the Company and materials
relating to the offer and sale of the Securities which have been requested by such Purchaser. Such
Purchaser and its advisors, if any, have been afforded the opportunity to ask questions of the
Company. Neither such inquiries nor any other due diligence investigations
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conducted by such Purchaser or its advisors, if any, or its representatives shall modify,
amend or affect such Purchaser’s right to rely on the Company’s representations and warranties
contained herein. Such Purchaser understands that its investment in the Securities involves a high
degree of risk. Such Purchaser has sought such accounting, legal and tax advice as it has
considered necessary to make an informed investment decision with respect to its acquisition of the
Securities.
(e) No Governmental Review. Such Purchaser understands that no United States federal
or state agency or any other government or governmental agency has passed on or made any
recommendation or endorsement of the Securities or the fairness or suitability of the investment in
the Securities nor have such authorities passed upon or endorsed the merits of the offering of the
Securities.
(f) Validity; Enforcement. This Agreement and the Registration Rights Agreement have
been duly and validly authorized, executed and delivered on behalf of such Purchaser and shall
constitute the legal, valid and binding obligations of such Purchaser enforceable against such
Purchaser in accordance with their respective terms, except as such enforceability may be limited
by general principles of equity or to applicable bankruptcy, insolvency, reorganization,
moratorium, liquidation and other similar laws relating to, or affecting generally, the enforcement
of applicable creditors’ rights and remedies.
(g) No Conflicts. The execution, delivery and performance by such Purchaser of this
Agreement and the Registration Rights Agreement and the consummation by such Purchaser of the
transactions contemplated hereby and thereby will not (i) result in a violation of the
organizational documents of such Purchaser or (ii) conflict with, or constitute a default (or an
event which with notice or lapse of time or both would become a default) under, or give to others
any rights of termination, amendment, acceleration or cancellation of, any agreement, indenture or
instrument to which such Purchaser is a party, or (iii) result in a violation of any law, rule,
regulation, order, judgment or decree (including federal and state securities laws) applicable to
such Purchaser, except in the case of clauses (ii) and (iii) above, for such conflicts, defaults,
rights or violations which would not, individually or in the aggregate, reasonably be expected to
have a material adverse effect on the ability of such Purchaser to perform its obligations
hereunder.
(h) Residency. Such Purchaser is a resident of that jurisdiction specified below its
address on the Schedule of Purchasers.
(i) No Transactions in Company Securities. Other than with respect to the
transactions contemplated herein, during the period commencing with the time that such Purchaser
was first contacted by the Company, the Agent (as defined below) or any other Person regarding the
investment in the Company contemplated by this Agreement (the “First Contact Time”), through such
time as (i) the transactions contemplated by this Agreement are first publicly announced as
described in Section 4(i) hereof or (ii) this Agreement is terminated pursuant to Section 9 hereof,
neither such Purchaser nor any affiliate of such Purchaser which (x) had knowledge of the
transactions contemplated hereby, (y) has or shares discretion relating to such Purchaser’s
investments or trading or information concerning such Purchaser’s investments and (z) is subject to
such Purchaser’s review or input concerning such affiliate’s investments or
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trading (collectively, “Trading Affiliates”), has engaged, directly or indirectly, in any
Trading Transaction in the securities of the Company or involving the Company’s securities. For
the purpose of this Agreement, “Trading Transaction” includes, without limitation, (i) any hedging
or other transaction which is designed to or could reasonably be expected to lead to or result in,
or be characterized as, a sale, an offer to sell, a purchase, a solicitation of offers to buy,
disposition of, loan, pledge or grant of any right with respect to any securities of the Company,
(ii) all “short sales” as defined in Rule 200 promulgated under Regulation SHO under the Securities
Exchange Act of 1934, as amended (the “Exchange Act”) (whether or not such sale or position is
“against the box”), (iii) “pre-borrow” or the reservation of borrowable shares of Common Stock
(sometimes referred to as “pay to hold”), unless, on or prior to the date hereof, any shares of
Common Stock “pre-borrowed” or reserved shall have been returned to the applicable lender;
provided, however, that this clause (iii) the shall not apply to any pre-borrow or reservation that
was completed prior to the First Contact Time, and (iv) all types of direct and indirect stock
pledges, forward sale contracts, options, puts, calls, swaps and similar arrangements (including on
a total return basis), and sales and other transactions through US broker dealers, non-US broker
dealers or foreign regulated brokers involving securities of the Company. Each of the Purchasers
is third party beneficiary of the representations set forth in this Section 2(i) by each other
Purchaser.
3. REPRESENTATIONS AND WARRANTIES OF THE COMPANY.
The Company represents and warrants to each of the Purchasers that as of the date hereof and
as of the Closing Date:
(a) Rule 144 Eligibility Requirements.
(i) When the Debentures are issued and delivered pursuant to this Agreement, the
Debentures will not be of the same class (within the meaning of Rule 144A under the
Securities Act) as securities of the Company that are listed on a United States national
securities exchange or that are quoted in a United States automated inter-dealer quotation
system.
(ii) The Debentures satisfy the eligibility requirements of Rule 144(A)(d)(3) under the
Securities Act.
(b) Investment Company. Neither the Company nor any of its Subsidiaries (as defined
in the Indenture) is, or after giving effect to the offer and sale of the Debentures and the
application of the proceeds therefrom will be, an “investment company” or a company “controlled”
by, or an “affiliated person” of, or “promoter” or “principal underwriter” for, an “investment
company” within the meaning of the Investment Company Act of 1940, as amended, and the rules and
regulations of the Commission thereunder.
(c) Securities Act Exemption; No General Solicitation. Assuming that the Purchasers’
representations and warranties in Section 2(a) and (b) are true, the purchase and sale of the
Debentures pursuant hereto, and the conversion of the Debentures into the Conversion Shares in the
manner contemplated by this Agreement and the Indenture, is exempt from the registration
requirements of the Securities Act. No form of general solicitation or general
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advertising within the meaning of Regulation D was used by the Company or any of its
Subsidiaries, or affiliates or representatives in connection with the offer and sale of the
Securities.
(d) Exchange Act Reports. During the two (2) years prior to the date hereof, the
Company has timely filed all reports, schedules, forms, statements and other documents required to
be filed by it with the Commission pursuant to the reporting requirements of the Exchange Act (all
of the foregoing filed prior to the date hereof and all exhibits included therein and financial
statements, notes and schedules thereto and documents incorporated by reference therein being
hereinafter referred to as the “Exchange Act Reports”). The Company has delivered to the
Purchasers or their respective representatives true, correct and complete copies of each of the
Exchange Act Reports not available on the XXXXX system that have been requested by each Purchaser.
The Exchange Act Reports when filed with the Commission together, where applicable, with any
amendments thereto, conformed in all material respects to the requirements of the Exchange Act and
the rules and regulations of the Commission thereunder, and none of such reports when filed with
the Commission contained an untrue statement of material fact or omit to state a material fact
required to be stated therein or necessary to make the statements made therein, in the light of the
circumstances under which they were made, not misleading; and any further reports, when such
reports are filed with the Commission, will conform in all material respects to the requirements of
the Exchange Act and the rules and regulations of the Commission thereunder 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.
(e) Shipping Act. In connection with the operation by the Company or any of its
Subsidiaries of United States flag vessels, the Company and such Subsidiaries are citizens of the
United States within the meaning of Section 2 of the Shipping Act, 1916, as amended.
(f) Organization and Qualification. The Company and each of its Subsidiaries has been
duly organized and is validly existing and in good standing as a corporation or other business
entity under the laws of its jurisdiction of organization and is duly qualified to do business and
in good standing as a foreign corporation or other business entity in each jurisdiction in which
its ownership or lease of property or the conduct of its businesses requires such qualification,
except where the failure to be so qualified or in good standing would not, individually or in the
aggregate, reasonably be expected to have a material adverse effect on the condition (financial or
otherwise), operations, results of operations, stockholders’ equity, properties, assets, business
or prospects of the Company and its Subsidiaries individually or taken as a whole, or a material
adverse effect on the performance by the Company of its obligations under this Agreement, the
Indenture, the Debentures, the Registration Rights Agreement or the consummation of any of the
transactions contemplated hereby or thereby (a “Material Adverse Effect”). The Company and each of
its Subsidiaries has all power and authority necessary to own or hold its properties and to conduct
the businesses in which it is engaged. The Company has no Subsidiaries except as set forth in
Exhibit 21 to the Company’s Annual Report on Form 10-K for the most recent fiscal year. None of
the Subsidiaries of the Company (other than Trico Marine Assets, Inc., Trico Marine Operators,
Inc., Trico Supply AS
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and Trico Shipping AS (collectively, the “Significant Subsidiaries”)) is a “significant
subsidiary” (as defined in Rule 1-02 of Regulation S-X).
(g) Equity Capitalization. As of the date hereof, the authorized capital stock of the
Company consists of 30 million shares of all classes of stock, of which 25 million shares are
Common Stock, of which as of the date hereof, 15,675,565 are issued and outstanding, 733,118 shares
are reserved for issuance pursuant to the Company’s stock option and purchase plans and 497,628
shares are reserved for issuance pursuant to securities (other than the aforementioned options and
the Debentures and excluding shares, if any, that may be issued upon conversion of the 2027
Convertible Debentures (as defined in the Indenture)) exercisable or exchangeable for, or
convertible into, Common Stock, and 5,000,000 shares are Preferred Stock, of which as of the date
hereof, no shares are issued and outstanding. All of the issued shares of capital stock of the
Company have been duly authorized and validly issued and are fully paid and non-assessable and were
issued in compliance with federal and state securities laws and not in violation of any preemptive
right, resale right, right of first refusal or similar right. All of the Company’s options,
warrants and other rights to purchase or exchange any securities for shares of the Company’s
capital stock have been duly authorized and validly issued were issued in compliance with federal
and state securities laws. All of the issued shares of capital stock of each Subsidiary of the
Company have been duly authorized and validly issued, are fully paid and non-assessable and are
owned directly or indirectly by the Company, free and clear of all liens, encumbrances, equities or
claims, except for such liens, encumbrances, equities or claims as would not, in the aggregate,
reasonably be expected to have a Material Adverse Effect. Except as set forth in the Exchange Act
Reports or in other filings made by the Company with the Commission: (i) none of the Company’s
capital stock is subject to preemptive rights or any other similar rights or any liens or
encumbrances suffered or permitted by the Company; (ii) there are no outstanding options, warrants,
scrip, rights to subscribe to, calls or commitments of any character whatsoever relating to, or
securities or rights convertible into, or exercisable or exchangeable for, any capital stock of the
Company or any of its Subsidiaries, or contracts, commitments, understandings or arrangements by
which the Company or any of its Subsidiaries is or may become bound to issue additional capital
stock of the Company or any of its Subsidiaries or options, warrants, scrip, rights to subscribe
to, calls or commitments of any character whatsoever relating to, or securities or rights
convertible into, or exercisable or exchangeable for, any capital stock of the Company or any of
its Subsidiaries, other than as such securities set forth on Schedule 4(l), which will be
issued in the Acquisition; (iii) there are no outstanding debt securities, notes, credit
agreements, credit facilities or other agreements, documents or instruments evidencing Indebtedness
(as defined in Section 3(pp)) of the Company or any of its Subsidiaries or by which the Company or
any of its Subsidiaries is or may become bound; (iv) there are no agreements or arrangements under
which the Company or any of its Subsidiaries is obligated to register the sale of any of their
securities under the Securities Act (except pursuant to the Registration Rights Agreement,
agreements under which the Company has already registered the sale of securities, or pursuant to an
agreement with West Supply IV AS related to the Acquisition, the terms of which are set forth on
Schedule 3(g) (the “Acquisition Registration Rights”); (v) there are no outstanding
securities or instruments of the Company or any of its Subsidiaries which contain any redemption or
similar provisions, and there are no contracts, commitments, understandings or arrangements by
which the Company or any of its Subsidiaries is or may become bound to redeem a security of the
Company or any of its Subsidiaries; (vi) there are no securities or instruments containing
anti-dilution or similar
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provisions that will be triggered by the issuance of the Securities; (vii) except as will be
outstanding as a result of the Acquisition, the Company does not have any stock appreciation rights
or “phantom stock” plans or agreements or any similar plan or agreement; and (viii) the Company and
its Subsidiaries have no liabilities or obligations required to be disclosed in the Exchange Act
Reports but not so disclosed in the Exchange Act Reports, other than those incurred in the ordinary
course of the Company’s or its Subsidiaries’ respective businesses and which, individually or in
the aggregate, do not or would not have a Material Adverse Effect. True, correct and complete
copies of the Company’s Certificate of Incorporation, as amended and as in effect on the date
hereof (the “Certificate of Incorporation”), and the Company’s Bylaws, as amended and as in effect
on the date hereof (the “Bylaws”), and the terms of all securities convertible into, or exercisable
or exchangeable for, shares of Common Stock and the material rights of the holders thereof in
respect thereto have been filed with the Commission.
(h) Authorization of Indenture. The Company has all requisite corporate power and
authority to execute, deliver and perform its obligations under the Indenture. The Indenture has
been duly and validly authorized by the Company, and upon its execution and delivery and (assuming
due authorization, execution and delivery by the Trustee) will constitute the valid and binding
agreement of the Company, enforceable against the Company in accordance with its terms, except as
such enforceability may be limited by bankruptcy, fraudulent conveyance, insolvency,
reorganization, moratorium, and other laws relating to or affecting creditors’ rights generally, by
general equitable principles (regardless of whether such enforceability is considered in a
proceeding in equity or at law), public policy, applicable law relating to indemnification and
contribution and by an implied covenant of good faith and fair dealing.
(i) Issuance of Debentures. The Company has all requisite corporate power and
authority to execute, issue, sell and perform its obligations under the Debentures. The Debentures
have been duly authorized by the Company and, when duly executed by the Company in accordance with
the terms of the Indenture, assuming due authentication of the Debentures by the Trustee, upon
delivery to the Purchasers against payment therefor in accordance with the terms hereof, will be
validly issued and delivered and will constitute valid and binding obligations of the Company
entitled to the benefits of the Indenture, enforceable against the Company in accordance with their
terms, except as such enforceability may be limited by bankruptcy, fraudulent conveyance,
insolvency, reorganization, moratorium, and other laws relating to or affecting creditors’ rights
generally, by general equitable principles (regardless of whether such enforceability is considered
in a proceeding in equity or at law), public policy, applicable law relating to indemnification and
contribution and by an implied covenant of good faith and fair dealing.
(j) Issuance of Conversion Shares. The Company has all the requisite corporate power
and authority to reserve for issuance and to issue and deliver the Conversion Shares issuable upon
conversion of the Debentures. The Conversion Shares have been duly and validly authorized by the
Company and, and when issued upon conversion of the Debentures in accordance with the terms of the
Debentures, will be validly issued, fully paid and non-assessable, and the issuance of the
Conversion Shares will not be subject to any preemptive or similar rights.
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(k) Authorization of Registration Rights Agreement. The Company has all requisite
corporate power and authority to execute, deliver and perform its obligations under the
Registration Rights Agreement. The Registration Rights Agreement has been duly authorized by the
Company and, when executed and delivered by the Company in accordance with the terms hereof and
thereof, will be validly executed and delivered and (assuming the due authorization, execution and
delivery thereof by the Purchasers) will be the legally valid and binding obligation of the Company
in accordance with the terms thereof, enforceable against the Company in accordance with its terms,
except as such enforceability may be limited by bankruptcy, insolvency, reorganization, moratorium
and other similar laws relating to or affecting creditor’s rights generally, by general equitable
principles (regardless of whether such enforceability is considered in a proceeding in equity or at
law), public policy, applicable law relating to indemnification and contribution and by an implied
covenant of good faith and fair dealing.
(l) Authorization of Agreement. The Company has all requisite corporate power and
authorization to execute, deliver and perform its obligations under this Agreement. This Agreement
has been duly and validly authorized by the Company and, when executed and delivered by the Company
in accordance with the terms hereof, will be validly executed and delivered and (assuming the due
authorization, execution and delivery hereof by the Purchasers) will be the legally valid and
binding obligation of the Company in accordance with the terms hereof, enforceable against the
Company in accordance with its terms, except as such enforceability may be limited by bankruptcy,
insolvency, reorganization, moratorium and other similar laws relating to or affecting creditor’s
rights generally, by general equitable principles (regardless of whether such enforceability is
considered in a proceeding in equity or at law), public policy, applicable law relating to
indemnification and contribution and by an implied covenant of good faith and fair dealing.
(m) No Conflicts. The issue and sale of the Debentures, the issuance and delivery of
any Conversion Shares, the execution, delivery and performance by the Company of the Debentures,
the Indenture, the Registration Rights Agreement and this Agreement, the application of the
proceeds from the sale of the Debentures, and the consummation of the transactions contemplated
hereby and thereby, will not (i) conflict with or result in a breach or violation of any of the
terms or provisions of, impose any lien, charge or encumbrance upon any property or assets of the
Company or its Subsidiaries, or constitute a default under, any indenture, mortgage, deed of trust,
loan agreement, license, lease or other agreement or instrument to which the Company or any of its
Subsidiaries is a party or by which the Company or any of its Subsidiaries is bound or to which any
of the property or assets of the Company or any of its Subsidiaries is subject, (ii) result in any
violation of the provisions of the charter or by-laws or similar organizational document of the
Company or any of its Subsidiaries or (iii) result in any violation of any statute or any judgment,
order, decree, rule or regulation of any court or governmental agency or body having jurisdiction
over the Company or any of its Subsidiaries or any of their properties or assets, except, with
respect to clauses (i) and (iii), such conflicts, breaches, defaults, violations or liens that,
individually or in the aggregate, would not reasonably be expected to have a Material Adverse
Effect.
(n) Consents. No consent, approval, authorization or order of, or filing,
registration or qualification with any court or governmental agency or body having
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jurisdiction over the Company or any of its Subsidiaries is required for the execution,
delivery, issuance, sale and performance of the Debentures, the issuance and delivery of the
Conversion Shares, the execution, delivery and performance by the Company of the Debentures, the
Indenture, the Registration Rights Agreement and this Agreement, the application of the proceeds
from the sale of the Debentures as described in Section 4(d), except for the filing of a
registration statement by the Company with the Commission pursuant to the Securities Act as
required by the Registration Rights Agreement and such consents, approvals, authorizations, orders,
filings, registrations or qualifications as may be required under state securities or Blue Sky laws
in connection with the purchase and distribution of the Securities by the Purchasers. The Company
and its Subsidiaries are unaware of any facts or circumstances which might prevent the Company from
obtaining or effecting any of the registration, application or filings pursuant to the preceding
sentence. The Company is not in violation of the requirements of The NASDAQ Global Select Market
(the “Principal Market”) and has no knowledge of any facts that could reasonably be expected to
lead to delisting or suspension of the Common Stock in the foreseeable future.
(o) Registration Obligations. Except as identified in Schedule 3(o), there
are no contracts, agreements or understandings between the Company and any Person (as defined in
Section 2(a)) granting such Person the right to require the Company to file a registration
statement under the Securities Act with respect to any securities of the Company (other than as set
forth in the Exchange Act Reports or in other filings made by the Company with the Commission, the
Registration Rights Agreement, the Acquisition Registration Rights, that certain registration
rights agreement executed by the Company dated as of February 7, 2007 (“2007 Registration Rights
Agreement”) or that certain registration rights agreement executed by the Company dated as of
September 9, 2005 (“2005 Registration Rights Agreement”)) owned or to be owned by such Person or to
require the Company to include such securities in the securities registered pursuant to the
Registration Rights Agreement or in any securities being registered pursuant to any other
registration statement filed by the Company under the Securities Act.
(p) No Integrated Offering. Neither the Company nor any other Person acting on behalf
of the Company has offered, sold or issued to any Person any securities that would be integrated
with the offering of the Securities contemplated by this Agreement pursuant to the Securities Act,
the rules and regulations thereunder or the interpretations thereof by the Commission. The Company
will take reasonable precautions designed to insure that any offer or sale, direct or indirect, in
the United States or to any U.S. person (as defined in Rule 902 under the Securities Act), of any
Securities or any substantially similar security issued by the Company, within six months
subsequent to the date on which the distribution of the Securities has been completed (as notified
to the Company by the Purchasers), is made under restrictions and other circumstances reasonably
designed not to affect the status of the offer and sale of the Securities in the United States and
to U.S. persons contemplated by this Agreement as transactions exempt from the registration
provisions of the Securities Act.
(q) No Interference with Business. Except as set forth in Exchange Act Reports,
neither the Company nor any of its Subsidiaries has sustained, since the date of the latest audited
financial statements, any loss or interference with its business from fire, explosion, flood or
other calamity, whether or not covered by insurance, or from any labor dispute or court
- 11 -
or governmental action, order or decree, and, since such date, there has not been any change
in the capital stock or long-term debt of the Company or any of its Subsidiaries or any adverse
change in or affecting the condition (financial or otherwise), results of operations, stockholders’
equity, properties, management or business of the Company and its subsidiaries, taken as a whole,
in each case except as would not, in the aggregate, reasonably be expected to have a Material
Adverse Effect.
(r) Financial Statements. As of their respective dates, the financial statements of
the Company included in the Exchange Act Reports complied as to form in all material respects with
applicable accounting requirements and the published rules and regulations of the Commission with
respect thereto as in effect as of the time of filing. Such financial statements have been
prepared in accordance with generally accepted accounting principles, consistently applied, during
the periods involved (except (i) as may be otherwise indicated in such financial statements or the
notes thereto, or (ii) in the case of unaudited interim statements, to the extent they may exclude
footnotes or may be condensed or summary statements) and fairly present in all material respects
the financial condition of the Company as of the dates thereof and the results of its operations
and cash flows for the periods then ended (subject, in the case of unaudited statements, to normal
year-end audit adjustments). There is no transaction, arrangement, or other relationship between
the Company and an unconsolidated or other off balance sheet entity that is required to be
disclosed by the Company in its Exchange Act Reports and is not so disclosed or that otherwise
would be reasonably likely to have a Material Adverse Effect.
(s) Accountants. PricewaterhouseCoopers LLP, who have certified certain financial
statements of the Company included in the Exchange Act Reports, were independent public accountants
as required by the Securities Act and the rules and regulations thereunder during the periods
covered by the financial statements on which they reported contained or incorporated by reference
in the Exchange Act Reports.
(t) Title. The Company and each of its Subsidiaries has good and marketable title to
all real and personal property owned by them, in each case free and clear of all liens,
encumbrances and defects, except such as are described in the Exchange Act Reports or where the
existence of such liens would not reasonably be expected to have a Material Adverse Effect; and all
assets held under lease by the Company or any of its Subsidiaries are held by them under valid,
subsisting and enforceable leases, except as described in the Exchange Act Reports or where such
invalidity or unenforceability would not reasonably be expected to have a Material Adverse Effect.
(u) Insurance. The Company and each of its Subsidiaries carry, or are covered by,
insurance from insurers of recognized financial responsibility in such amounts and covering such
risks as is adequate for the conduct of their respective businesses and the value of their
respective properties and as is customary for companies engaged in similar businesses in similar
industries. All policies of insurance of the Company and its Subsidiaries are in full force and
effect; the Company and its Subsidiaries are in compliance with the terms of such policies in all
material respects; and neither the Company nor any of its subsidiaries has received notice from any
insurer or agent of such insurer that capital improvements or other expenditures are required or
necessary to be made to continue such insurance. Neither the Company nor any such
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Subsidiary has been refused any insurance coverage sought or applied for and neither the
Company nor any such Subsidiary has any reason to believe that it will not be able to renew its
existing insurance coverage as and when such coverage expires or to obtain similar coverage from
similar insurers as may be necessary to continue its business at a cost that would not have a
Material Adverse Effect.
(v) Regulatory Permits. The Company and each of its Subsidiaries have such permits,
licenses, patents, franchises, certificates of need and other approvals or authorizations of
governmental or regulatory authorities (“Permits”) as are necessary under applicable law to own
their properties and conduct their businesses in the manner described in the Exchange Act Reports,
except for any of the foregoing that would not reasonably be expected to have a Material Adverse
Effect; each of the Company and its Subsidiaries has fulfilled and performed all of its obligations
with respect to the Permits, and no event has occurred that allows, or after notice or lapse of
time would allow, revocation or termination thereof or results in any other impairment of the
rights of the holder or any such Permits, except for any of the foregoing that would not reasonably
be expected to have a Material Adverse Effect.
(w) Legal Proceedings.
(i) Except as described in the Exchange Act Reports, there are no legal or governmental
proceedings pending against or affecting the Company or any of its Subsidiaries, the Common
Stock, any property or assets of the Company or any of its Subsidiaries or any of the
Company’s or its Subsidiaries’ officers or directors in their capacities as such, whether of
a civil or criminal nature or otherwise that would, individually or in the aggregate,
reasonably be expected to have a Material Adverse Effect; and to the Company’s knowledge, no
such proceedings are threatened or contemplated by any governmental authority or other
Person.
(ii) Except as described in the Exchange Act Reports, there are no legal or
governmental proceedings or contracts or other documents that would be required to be
described in a registration statement filed under the Securities Act or, in the case of
documents, would be required to be filed as exhibits to a registration statement of the
Company pursuant to Item 601(b)(10) of Regulation S-K. Neither the Company nor any of its
Subsidiaries has knowledge that any other party to any such contract, agreement or
arrangement has any intention not to render full performance as contemplated by the terms
thereof.
(x) Transactions with Affiliates. Except as set forth in the Exchange Act Reports, no
relationship, direct or indirect, that would be required to be described in a registration
statement of the Company pursuant to Item 404 of Regulation S-K, exists between or among the
Company, on the one hand, and the directors, officers, stockholders, customers or suppliers of the
Company, on the other hand.
(y) Employee Relations.
(i) No labor disturbance by the employees of the Company or any of its Subsidiaries
exists or, to the knowledge of the Company and each of its Subsidiaries,
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is imminent that would reasonably be expected to have a Material Adverse Effect. None
of the Company’s or its Subsidiaries’ U.S. employees are represented by labor unions nor are
they employed pursuant to collective bargaining agreements or similar arrangements. The
Company’s or its Subsidiaries’ Norwegian and United Kingdom seamen work under union
contracts, and their seamen in Brazil are covered by separate collective bargaining
agreements. The Company and its Subsidiaries believe that their relations with their
employees are good. No executive officer of the Company or any of its Subsidiaries (as
defined in Rule 501(f) of the Securities Act) has notified the Company or any such
Subsidiary that such officer intends to leave the Company or any such Subsidiary or
otherwise terminate such officer’s employment with the Company or any such Subsidiary. To
the Company’s knowledge, no executive officer of the Company or any of its Subsidiaries is
in violation of any material term of any employment contract, confidentiality, disclosure or
proprietary information agreement, non-competition agreement, or any other contract or
agreement or any restrictive covenant, except for such violations as would not, individually
or in the aggregate, reasonably be expected to have a Material Adverse Effect.
(ii) The Company and its Subsidiaries are in compliance with all federal, state, local
and foreign laws and regulations respecting labor, employment and employment practices and
benefits, terms and conditions of employment and wages and hours, except where failure to be
in compliance would not, either individually or in the aggregate, reasonably be expected to
have a Material Adverse Effect. The Company and each of its Subsidiaries are in compliance
in all material respects with all presently applicable provisions of the Employee Retirement
Income Security Act of 1974, as amended, including the regulations and published
interpretations thereunder (“ERISA”); no “reportable event” (as defined in ERISA) has
occurred with respect to any “pension plan” (as defined in ERISA) for which the Company or
any of its Subsidiaries would have any liability; the Company and its Subsidiaries have not
incurred and do not expect to incur liability under (i) Title IV of ERISA with respect to
termination of, or withdrawal from, any “pension plan” or (ii) Sections 412 or 4971 of the
Internal Revenue Code of 1986, as amended, including the regulations and published
interpretations thereunder (the “Code”); each “pension plan” for with the Company and its
Subsidiaries would have any liability that is intended to be qualified under Section 401(a)
of the Code is so qualified in all material respects and nothing has occurred, whether by
action or by failure to act, which would cause the loss of such qualification; and the
Company and each of its Subsidiaries have not incurred any unpaid liability to the Pension
Benefit Guaranty Corporation (other than for payment of premiums in the ordinary course of
business).
(z) Taxes. The Company and each of its Subsidiaries (i) has filed all federal, state,
local and foreign income and franchise tax returns required to be filed through the date hereof,
subject to permitted extensions, (ii) has paid all taxes due thereon except in each case as would
not reasonably be expected to have a Material Adverse Effect, (iii) has set aside on its books
provision reasonably adequate for the payment of all taxes for periods subsequent to the periods to
which such returns, reports or declarations apply. No tax deficiency has been determined adversely
to the Company or any of its Subsidiaries, nor does the Company have any knowledge of any tax
deficiencies that would, in the aggregate, reasonably be expected to have a Material Adverse
Effect.
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(aa) Absence of Certain Changes. Except as disclosed in the Exchange Act Reports,
since December 31, 2007, there has been no material adverse change and no material adverse
development in the business, assets, properties, operations, condition (financial or otherwise) or
results of operations of the Company or its Subsidiaries. Except as disclosed in the Exchange Act
Reports, since December 31, 2007, neither the Company nor any of its Subsidiaries has (i) declared
or paid any dividends on its or their capital stock, (ii) sold any material assets outside of the
ordinary course of business or (iii) had material capital expenditures outside of the ordinary
course of business. Neither the Company nor any of its Subsidiaries has taken any steps to seek
protection pursuant to any bankruptcy law nor does the Company have any knowledge or reason to
believe that its creditors intend to initiate involuntary bankruptcy proceedings or any actual
knowledge of any fact which would reasonably lead a creditor to do so. The Company and its
Subsidiaries, individually and on a consolidated basis, are not as of the date hereof, and after
giving effect to the transactions contemplated hereby to occur at the Closing will not be,
Insolvent (as defined below). For purposes of this Section 3(aa), “Insolvent” means, with respect
to any Person (i) the present fair saleable value of such Person’s assets is less than the amount
required to pay such Person’s total Indebtedness, (ii) such Person is unable to pay its debts and
liabilities, subordinated, contingent or otherwise, as such debts and liabilities become absolute
and matured, (iii) such Person intends to incur or believes that it will incur debts that would be
beyond its ability to pay as such debts mature or (iv) such Person has unreasonably small capital
with which to conduct the business in which it is engaged as such business is now conducted and is
proposed to be conducted.
(bb) Books and Records. The Company and each of its Subsidiaries (i) makes and keeps
accurate books and records and (ii) maintains and has maintained effective internal control over
financial reporting as defined in Rule 13a-15 under the Exchange Act and a system of internal
accounting controls sufficient to provide reasonable assurance that (A) transactions are executed
in accordance with management’s general or specific authorization, (B) transactions are recorded as
necessary to permit preparation of its or their financial statements in conformity with accounting
principles generally accepted in the United States and to maintain accountability for its assets
and liabilities, (C) access to its assets or incurrence of liabilities is permitted only in
accordance with management’s general or specific authorization and (D) the reported accountability
for its assets and liabilities is compared with existing assets and liabilities at reasonable
intervals and appropriate action is taken with respect to any differences.
(cc) Conduct of Business. Neither the Company nor any of its Subsidiaries (i) is in
violation of its charter or by-laws or any certificate of designation, preferences or rights of any
other outstanding series of preferred stock of the Company (or similar organizational documents),
(ii) is in default, and no event has occurred that, with notice or lapse of time or both, would
constitute such a default, in the due performance or observance of any term, covenant, condition or
other obligation contained in any indenture, mortgage, deed of trust, loan agreement, license or
other agreement or instrument to which it is a party or by which it is bound or to which any of its
properties or assets is subject or (iii) is in violation of any statute or any order, rule or
regulation of any court or governmental agency or body having jurisdiction over it or its property
or assets or has failed to obtain or maintain any license, permit, certificate, franchise or other
governmental authorization or permit necessary to the ownership of its property or to the conduct
of its business, except in the case of clauses (ii) and (iii), to the extent any such conflict,
breach, violation or default would not, in the aggregate, reasonably be
- 15 -
expected to have a Material Adverse Effect. During the two (2) years prior to the date
hereof, (i) the Common Stock has been designated for quotation on the Principal Market, (ii)
trading in the Common Stock has not been suspended by the Commission or the Principal Market and
(iii) the Company has received no communication, written or oral, from the Commission or the
Principal Market regarding the suspension or delisting of the Common Stock from the Principal
Market.
(dd) Foreign Corrupt Practices. Neither the Company nor any of its Subsidiaries, nor
any director, officer, agent, employee or other Person associated with or acting on behalf of the
Company or any of its Subsidiaries, has (i) used any corporate funds for any unlawful contribution,
gift, entertainment or other unlawful expense relating to political activity; (ii) made any direct
or indirect unlawful payment to any foreign or domestic government official or employee from
corporate funds; (iii) violated or is in violation of any provision of the Foreign Corrupt
Practices Act of 1977, as amended; or (iv) made any unlawful bribe, rebate, payoff, influence
payment, kickback or other unlawful payment to any foreign or domestic government official or
employee.
(ee) Environmental Laws. The Company and each of its Subsidiaries are, and at all
times prior were, (i) in compliance with any and all applicable federal, state, local and foreign
laws, regulations, ordinances, rules, orders, judgments, decrees, permits or other legal
requirements relating to the protection of human health and safety, the environment, natural
resources or hazardous or toxic substances or wastes, pollutants or contaminants (“Environmental
Laws”), which compliance includes obtaining, maintaining and complying with all permits and
authorizations and approvals required by Environmental Laws to conduct their respective businesses
and (ii) have not received notice of any actual or potential liability for the investigation or
remediation of any disposal or release of hazardous or toxic substances or wastes, pollutants or
contaminants, except in the case of clause (i) or (ii) where such non-compliance with or liability
under Environmental Laws would not, individually or in the aggregate, reasonably be expected to
have a Material Adverse Effect; and except as described in the Exchange Act Reports, neither the
Company nor any of its Subsidiaries has been named as a “potentially responsible party” under the
Comprehensive Environmental Response, Compensation and Liability Act of 1980, as amended, or any
other similar Environmental Law, except with respect to any matters that, individually or in the
aggregate, would not reasonably be expected to have a Material Adverse Effect. Except as described
in the Exchange Act Reports, (A) none of the Company and its Subsidiaries is a party to any
proceeding under Environmental Laws in which a governmental authority is also a party, other than
such proceedings regarding which it is believed no monetary penalties of $100,000 or more will be
imposed, and (B) none of the Company and its Subsidiaries anticipates material capital expenditures
relating to Environmental Laws.
(ff) Placement Agent. The Company acknowledges that it has engaged Lazard Frères &
Co. LLC, as placement agent in connection with the sale of the Debentures (the “Agent”). Other
than the Agent, neither the Company nor any of its Subsidiaries has engaged any placement agent or
other agent in connection with the sale of the Debentures.
(gg) Manipulation of Price. The Company has not, and to its knowledge no one acting
on its behalf has, directly or indirectly, (i) taken any action designed to
- 16 -
or that has constituted or that could reasonably be expected to cause or result in the
stabilization or manipulation of the price of any security of the Company in connection with the
offering of the Securities, or (ii) other than actions taken by the Agent, sold, bid for,
purchased, or paid any compensation for soliciting purchases of, the Debentures.
(hh) Internal Accounting and Disclosure Controls.
(i) (x) The Company and each of its Subsidiaries have established and maintain
disclosure controls and procedures (as such term is defined in Rule 13a-15 under the
Exchange Act), (y) such disclosure controls and procedures are designed to ensure that the
information required to be disclosed by the Company in the reports they file or submit under
the Exchange Act is accumulated and communicated to management of the Company and its
Subsidiaries, including their respective principal executive officers and principal
financial officers, as appropriate, to allow timely decisions regarding required disclosure
to be made; and (x) as of December 31, 2007 such disclosure controls and procedures were
effective in all material respects to perform the functions for which they were established.
(ii) Since December 31, 2007, (x) the Company has not been advised of (A) any
significant deficiency in the design or operation of internal controls that could adversely
affect the ability of the Company or any of its Subsidiaries to record, process, summarize
and report financial data, or any material weaknesses in internal controls or (B) any fraud,
whether or not material, that involves management or other employees who have a significant
role in the internal controls of the Company and each of its Subsidiaries, and (y) since
that date, there have been no significant changes in internal controls or in other factors
that could significantly affect internal controls, including any corrective actions with
regard to significant deficiencies and material weaknesses.
(ii) Subsidiaries. Except as set forth in Schedule 3(ii), the Company or one
of its Subsidiaries has the unrestricted right to vote the stock of the Company’s Subsidiaries, and
no Subsidiary of the Company is currently prohibited, directly or indirectly, from paying any
dividends to the Company, from making any other distribution on such Subsidiary’s capital stock,
from repaying to the Company any loans or advances to such Subsidiary from the Company or from
transferring any of such Subsidiary’s property or assets to the Company or any other Subsidiary of
the Company.
(jj) Xxxxxxxx-Xxxxx Act. There is and has been no failure on the part of the Company
to comply with the provisions of the Xxxxxxxx-Xxxxx Act of 2002, as amended and the rules and
regulations promulgated in connection therewith, except as would not, individually or in the
aggregate, reasonably be expected to have a Material Adverse Effect.
(kk) OFAC. Neither the Company nor any of its Subsidiaries nor, to the knowledge of
the Company, any director, officer, agent, employee or affiliate of the Company or any of its
Subsidiaries is currently subject to any U.S. sanctions administered by the Office of Foreign
Assets Control of the U.S. Treasury Department (“OFAC”); and the Company has not and will not lend,
contribute or otherwise make available funds to any Subsidiary, joint venture partner or other
person or entity, for the purpose of financing the activities of any person
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which, to the knowledge of the Company, was, at the time of such transaction, subject to any
U.S. sanctions administered by OFAC.
(ll) Form S-3. The Company is eligible to register the Debentures and the Conversion
Shares for resale by the Purchasers using Form S-3 promulgated under the Securities Act. The
Company is not, and has never been, an issuer identified in Rule 144(i)(1).
(mm) Transfer Taxes. On the Closing Date, all stock transfer or other taxes (other
than income or similar taxes) which are required to be paid in connection with the sale and
transfer of the Securities to be sold to each Purchaser hereunder will be, or will have been, fully
paid or provided for by the Company, and all laws imposing such taxes will be or will have been
complied with.
(nn) U.S. Real Property Holding Corporation. The Company is not, has never been, and
so long as any Debentures remain outstanding, shall not become a U.S. real property holding
corporation within the meaning of Section 897 of the Internal Revenue Code of 1986, as amended, and
the Company shall so certify upon Purchaser’s request.
(oo) Intellectual Property Rights. The Company and its Subsidiaries own or possess
adequate rights or licenses to use all trademarks, trade names, service marks, service xxxx
registrations, service names, patents, patent rights, copyrights, inventions, licenses, approvals,
governmental authorizations, original works of authorship, trade secrets and other intellectual
property rights and all applications related thereto (“Intellectual Property Rights”) necessary to
conduct their respective businesses as now conducted. None of the Company’s or its Subsidiaries’
Intellectual Property Rights have expired, terminated or been abandoned, or are expected to expire,
terminate or be abandoned, within three years from the date of this Agreement, except where such
expiration, termination or abandonment would not reasonably be expected to have a Material Adverse
Effect. The Company does not have any knowledge of any infringement by the Company or any of its
Subsidiaries of Intellectual Property Rights of others. There is no claim, action or proceeding
being made or brought, or to the knowledge of the Company, being threatened, against the Company or
any of its Subsidiaries regarding its Intellectual Property Rights. The Company is unaware of any
facts or circumstances which might give rise to any of the foregoing infringements or claims,
actions or proceedings. The Company and its Subsidiaries have taken reasonable security measures
to protect the secrecy, confidentiality and value of all of their Intellectual Property Rights.
(pp) Indebtedness and Other Contracts. Except as set forth in the Exchange Act
Reports, neither the Company nor any of its Subsidiaries (i) has any outstanding Indebtedness (as
defined below), (ii) is in violation of any term of or in default under any contract, agreement or
instrument relating to any Indebtedness, except where such violations and defaults would not
result, individually or in the aggregate, in a Material Adverse Effect, or (iii) is a party to any
contract, agreement or instrument relating to any Indebtedness, the performance of which, in the
judgment of the Company’s officers, has or would reasonably be expected to have, a Material Adverse
Effect. For purposes of this Agreement: (x) “Indebtedness” of any Person means, without
duplication (A) all indebtedness for borrowed money, (B) all obligations issued, undertaken or
assumed as the deferred purchase price of property or services (including, without limitation,
“capital leases” in accordance with generally accepted accounting principles) (other
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than trade payables entered into in the ordinary course of business), (C) all reimbursement or
payment obligations with respect to letters of credit, surety bonds and other similar instruments,
(D) all obligations evidenced by notes, bonds, debentures or similar instruments, including
obligations so evidenced incurred in connection with the acquisition of property, assets or
businesses, (E) all indebtedness created or arising under any conditional sale or other title
retention agreement, or incurred as financing, in either case with respect to any property or
assets acquired with the proceeds of such indebtedness (even though the rights and remedies of the
seller or bank under such agreement in the event of default are limited to repossession or sale of
such property), (F) all monetary obligations under any leasing or similar arrangement which, in
connection with generally accepted accounting principles, consistently applied for the periods
covered thereby, is classified as a capital lease, (G) all indebtedness referred to in clauses (A)
through (F) above secured by (or for which the holder of such Indebtedness has an existing right,
contingent or otherwise, to be secured by) any mortgage, lien, pledge, charge, security interest or
other encumbrance upon or in any property or assets (including accounts and contract rights) owned
by any Person, even though the Person which owns such assets or property has not assumed or become
liable for the payment of such indebtedness, and (H) all Contingent Obligations in respect of
indebtedness or obligations of others of the kinds referred to in clauses (A) through (G) above;
(y) “Contingent Obligation” means, as to any Person, any direct or indirect liability, contingent
or otherwise, of that Person with respect to any indebtedness, lease, dividend or other obligation
of another Person if the primary purpose or intent of the Person incurring such liability, or the
primary effect thereof, is to provide assurance to the obligee of such liability that such
liability will be paid or discharged, or that any agreements relating thereto will be complied
with, or that the holders of such liability will be protected (in whole or in part) against loss
with respect thereto; and (z) “Person” means an individual, a limited liability company, a
partnership, a joint venture, a corporation, a trust, an unincorporated organization and a
government or any department or agency thereof.
(qq) Bank Holding Company Act. Neither the Company nor any of its Subsidiaries or
affiliates is subject to the Bank Holding Company Act of 1956, as amended (the “BHCA”) and to
regulation by the Board of Governors of the Federal Reserve System (the “Federal Reserve”).
Neither the Company nor any of its Subsidiaries or affiliates owns or controls, directly or
indirectly, five percent or more of the outstanding shares of any class of voting securities or
twenty-five percent or more of the total equity of a bank or any entity that is subject to the BHCA
and to regulation by the Federal Reserve. Neither the Company nor any of its Subsidiaries or
affiliates exercises a controlling influence over the management or policies of a bank or any
entity that is subject to the BHCA and to regulation by the Federal Reserve.
(rr) Application of Takeover Protections; Rights Agreement. The Company and its board
of directors have taken all necessary action, if any, in order to render inapplicable any control
share acquisition, business combination, poison pill (including any distribution under a rights
agreement) or other similar anti-takeover provision under the Certificate of Incorporation or any
certificates of designations or the laws of the State of Delaware which is or could become
applicable to any Purchaser as a result of the transactions contemplated by this Agreement,
including, without limitation, the Company’s issuance of the Securities and any Purchaser’s
ownership of the Securities. The Company does not presently have a stockholder rights plan or
similar arrangement relating to accumulations of beneficial ownership of Common Stock or a change
in control of the Company (a “Rights Plan”).
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(ss) Dilutive Effect. The Company understands and acknowledges that the number of
Conversion Shares issuable upon conversion of the Debentures will increase in certain
circumstances. The Company further acknowledges that any dilutive effect that the issuance of the
Conversion Shares upon conversion of the Debentures in accordance with this Agreement and the
Indenture may have on the ownership interests of other stockholders of the Company shall have no
effect on the Company’s obligation to issue Conversion Shares upon conversion of the Debentures in
accordance with this Agreement and the Indenture.
(tt) Acknowledgment Regarding Purchaser’s Purchase of Securities. The Company
acknowledges and agrees that each Purchaser is acting solely in the capacity of an arm’s length
purchaser with respect to the Transaction Documents and the transactions contemplated hereby and
thereby and that no Purchaser is (i) an officer or director of the Company, (ii) an “affiliate” of
the Company or any of its Subsidiaries (as defined in Rule 144) or (iii) to the knowledge of the
Company, a “beneficial owner” of more than 10% of the shares of Common Stock (as defined for
purposes of Rule 13d-3 of the Exchange Act). The Company further acknowledges that no Purchaser is
acting as a financial advisor or fiduciary of the Company or any of its Subsidiaries (or in any
similar capacity) with respect to this Agreement, the Registration Rights Agreement, the Indenture
or the Debentures (collectively, the “Transaction Documents”) and the transactions contemplated
hereby and thereby, and any advice given by a Purchaser or any of its representatives or agents in
connection with the Transaction Documents and the transactions contemplated hereby and thereby is
merely incidental to such Purchaser’s purchase of the Securities. The Company further represents
to each Purchaser that the Company’s decision to enter into the Transaction Documents has been
based solely on the independent evaluation by the Company and its representatives.
(uu) Off Balance Sheet Arrangements. There is no transaction, arrangement, or other
relationship between the Company and an unconsolidated or other off balance sheet entity that is
required to be disclosed by the Company in its Exchange Act filings and is not so disclosed or that
otherwise would be reasonably likely to have a Material Adverse Effect.
(vv) Certificates. Any certificate signed by any officer of the Company and delivered
to the Purchasers or counsel for the Purchasers in connection with the offering of the Securities
shall be deemed a representation and warranty by the Company, as to matters covered thereby, to
each Purchaser.
(ww) Disclosure. Other than such information set forth in the 8-K Filing (as defined
below), the Company confirms that neither it nor any other Person acting on its behalf has provided
any of the Purchasers or their agents or counsel with any information that constitutes or could
reasonably be expected to constitute material, nonpublic information. The Company understands and
confirms that each of the Purchasers will rely on the foregoing representations in effecting
transactions in securities of the Company. All disclosure provided to the Purchasers regarding the
Company and its Subsidiaries, their business and the transactions contemplated hereby, including
the Schedules to this Agreement, furnished by or on behalf of the Company is true and correct in
all material respects and does not contain any untrue statement of a material fact or omit to state
any material fact necessary in order to make the statements made therein, in the light of the
circumstances under which they were made, not misleading. No event
- 20 -
or circumstance has occurred or information exists with respect to the Company or any of its
Subsidiaries or either of their respective businesses, properties, prospects, operations or
financial conditions, which, under applicable law, rule or regulation, requires public disclosure
or announcement by the Company but which has not been so publicly announced or disclosed.
4. COVENANTS.
(a) Reasonable Best Efforts. Each party shall use its reasonable best efforts timely
to satisfy each of the conditions to be satisfied by it as provided in Sections 5 and 6 of this
Agreement.
(b) Form D and Blue Sky. The Company agrees to file a Form D with respect to the
Securities as required under Regulation D and to provide a copy thereof to each Purchaser promptly
after such filing. The Company shall, on or before the Closing Date, take such action as the
Company shall reasonably determine is necessary in order to obtain an exemption for or to qualify
the Securities for sale to the Purchasers at the Closing pursuant to this Agreement under
applicable securities or “Blue Sky” laws of the states of the United States (or to obtain an
exemption from such qualification), and shall provide evidence of any such action so taken to the
Purchasers on or prior to the Closing Date; provided that in connection therewith the Company shall
not be required to (i) qualify as a foreign corporation in any jurisdiction in which it would not
otherwise be required to so qualify, (ii) file a general consent to service of process in any such
jurisdiction or (iii) subject itself to taxation in any jurisdiction in which it would not
otherwise be subject. The Company shall make all filings and reports relating to the offer and
sale of the Securities required under applicable securities or “Blue Sky” laws of the states of the
United States following the Closing.
(c) Reporting Status. Until the date on which the Purchasers shall have sold all the
Conversion Shares, and none of the Debentures is outstanding (the “Reporting Period”), the Company
shall timely file all reports required to be filed with the Commission pursuant to the Exchange
Act, and the Company shall not terminate its status as an issuer required to file reports under the
Exchange Act even if the Exchange Act or the rules and regulations thereunder would no longer
require or otherwise permit such termination, and the Company shall take all actions necessary to
maintain its eligibility to register the Conversion Shares for resale by the Purchasers on Form
S-3.
(d) Use of Proceeds. The Company will use the proceeds from the sale of the
Debentures (i) in the event that the Section 6(o) Conditions have been satisfied, for the
acquisition of DeepOcean (the “Acquisition”) or (ii) otherwise, for general corporate purposes and
shall not use the proceeds for the redemption or repurchase of any of its outstanding Indebtedness
or any equity securities.
(e) Financial Information. For so long as any Securities remain outstanding and are
“restricted securities” within the meaning of Rule 144(a)(3) under the Securities Act, the Company
will, during any period in which it is not subject to Section 13 or 15(d) under the Exchange Act,
make available to the Purchaser and any holder of Securities in connection with any sale thereof
and any prospective purchaser of Securities and securities
- 21 -
analysts, in each case upon request, the information specified in, and meeting the
requirements of, Rule 144A(d)(4) under the Securities Act (or any successor thereto).
(f) Listing. The Company shall promptly secure the listing of all of the Registrable
Securities (as defined in the Registration Rights Agreement) upon each national securities exchange
and automated quotation system, if any, upon which the Common Stock is then listed (subject to
official notice of issuance) and shall maintain such listing of all Registrable Securities from
time to time issuable under the terms of the Transaction Documents. The Company will use its
reasonable best efforts to maintain the Common Stock’s authorization for quotation on the Principal
Market. The Company will, and will cause its Subsidiaries to, use its reasonable best efforts to
avoid any action which would be reasonably expected to result in the delisting or suspension of the
Common Stock on the Principal Market.
(g) Fees and Expenses.
(i) The Company shall be responsible for the payment of any placement agent’s fees or
commissions, financial advisory fees, or broker’s commissions (other than for Persons
engaged by any Purchaser) relating to or arising out of the transactions contemplated
hereby, including, without limitation, any fees or commissions payable to the Agent. The
Company shall pay, and hold each Purchaser harmless against, any liability, loss or expense
(including, without limitation, reasonable attorney’s fees and out-of-pocket expenses)
arising in connection with any claim relating to any such payment. In addition to the
foregoing (and without duplication), the Company agrees to reimburse Highbridge
International LLC (“Highbridge”) or its designee(s) for all reasonable costs and expenses
incurred in connection with the transactions contemplated by the Transaction Documents
(including all reasonable legal fees and disbursements in connection therewith,
documentation and implementation of the transactions contemplated by the Transaction
Documents and due diligence in connection therewith), which amount (less the $100,000 paid
by the Company to Highbridge prior to the date hereof) shall be withheld by Highbridge from
its Purchase Price at the Closing. Except as otherwise set forth in the Transaction
Documents, each party to this Agreement shall bear its own expenses in connection with the
sale of the Securities to the Purchasers.
(ii) Whether or not the transactions contemplated in this Agreement are consummated or
this Agreement is terminated, the Company shall pay or cause to be paid all costs and
expenses incident to the performance of its obligations hereunder, including without
limitation, all fees, costs and expenses (A) incident to the preparation, issuance,
execution, authentication and delivery of the Securities, including any expenses of the
Trustee, (ii) incurred in connection with the registration or qualification and
determination of eligibility for investment of the Securities under the laws of such
jurisdictions as the Purchasers may reasonably designate, (iii) in connection with the
admission of the Debentures for trading in the Private Offerings, Resales and Trading
through Automated Linkages (PORTAL) MarketSM (“PORTAL”) of the National
Association of Securities Dealers, Inc. (“NASD”), (iv) related to any filing with the NASD
and (v) in connection with satisfying its obligations under Section 4(e).
- 22 -
(h) Pledge of Securities. The Company acknowledges and agrees that the Securities may
be pledged by a Holder (as defined in the Registration Rights Agreement) in connection with a bona
fide margin agreement or other loan or financing arrangement that is secured by the Securities.
The pledge of Securities shall not be deemed to be a transfer, sale or assignment of the Securities
hereunder, and no Investor effecting a pledge of Securities shall be required to provide the
Company with any notice thereof or otherwise make any delivery to the Company pursuant to this
Agreement or any other Transaction Document. The Company hereby agrees to execute and deliver such
documentation as a pledgee of the Securities may reasonably request in connection with a pledge of
the Securities to such pledgee by an Investor.
(i) Disclosure of Transactions and Other Material Information. On or before 8:30
a.m., New York Time, on May 16, 2008, the Company shall file a Current Report on Form 8-K
describing the Acquisition and the transactions contemplated by this Agreement and attaching the
material documents related to the Acquisition required to be furnished therewith and the terms of
the transactions contemplated by the Transaction Documents and attaching the material Transaction
Documents (including, without limitation, this Agreement, the Indenture, the form of the Debentures
and the Registration Rights Agreement) as exhibits to such filing (including all exhibits, the “8-K
Filing”). From and after the filing of the 8-K Filing with the Commission, no Purchaser shall be
in possession of any material, nonpublic information received from the Company, any of its
Subsidiaries or any of its respective officers, directors, employees or agents, that is not
disclosed in the 8-K Filing. The Company shall not, and shall cause each of its Subsidiaries and
its and each of their respective officers, directors, employees and agents, not to, provide any
Purchaser with any material, nonpublic information regarding the Company or any of its Subsidiaries
from and after the 8-K Filing with the Commission without the express written consent of such
Purchaser. Subject to the foregoing, neither the Company nor any Purchaser shall issue any press
releases or any other public statements with respect to the transactions contemplated hereby;
provided, however, that the Company shall be entitled, without the prior approval of any Purchaser,
to make any press release or other public disclosure with respect to such transactions (i) in
substantial conformity with the 8-K Filing and contemporaneously therewith and (ii) as is required
by applicable law and regulations including the NASDAQ Marketplace Rules (provided that in the case
of clause (i) each Purchaser shall be consulted by the Company in connection with any such press
release or other public disclosure prior to its release). Without the prior written consent of any
applicable Purchaser, neither the Company nor any of its Subsidiaries or affiliates shall disclose
the name of such Purchaser in any filing, announcement, release or otherwise, unless such
disclosure is required by law, regulation or the Principal Market.
(j) Additional Debentures; Variable Securities. For so long as any Debentures remain
outstanding, the Company will not issue any Debentures other than to the Purchasers as contemplated
hereby and the Company shall not issue any other securities that would cause a breach or default
under the Debentures. From and after the date hereof and for so long as any Debentures remain
outstanding, the Company (other than in connection with any Rights Plan of the Company) shall not,
in any manner, issue or sell any rights, warrants or options to subscribe for or purchase Common
Stock or directly or indirectly convertible into or exchangeable or exercisable for Common Stock at
a price which varies or may vary with the market price of the Common Stock, including by way of one
or more reset(s) to any fixed price unless the conversion, exchange or exercise price of any such
security cannot be less than the
- 23 -
then applicable Conversion Price (as defined in the Debentures) with respect to the Common
Stock into which any Debenture is convertible.
(k) Reservation of Shares. The Company shall take all action necessary to at all
times have authorized, and reserved for the purpose of issuance, free of pre-emptive rights, after
the Closing Date, a number of shares of Common Stock sufficient for the purpose of enabling the
Company to satisfy all obligations to issue the Conversion Shares upon conversion of all of the
Debentures.
(l) Lock-Up.
(i) For a period commencing on the date hereof and ending on the 180th day
after the Closing Date (the “Lock-Up Period”), the Company agrees, other ( than (A) the sale
of Debentures hereunder, (B) with respect to a sale of Common Stock at a price at or in
excess of the Volume Weighted Average Price (as defined in the Indenture) on May 15, 2008 or
(C) the issuance of Common Stock in such amounts and prices as set forth on Schedule
4(l) with respect to the Acquisition, not to, directly or indirectly, (1) sell, offer to
sell, contract or agree to sell, hypothecate, pledge, grant any option to purchase (other
than as permitted pursuant to this Section 4(l) below), make any short sale or otherwise
dispose of or agree to dispose of, directly or indirectly, any Common Stock, securities of
the Company that are substantially similar to the Securities or securities convertible into
or exchangeable for or that represent the right to receive Common Stock (other than the
stock and shares issued pursuant to employee benefit plans, stock option plans or other
compensation or incentive plans existing on the date hereof or pursuant to currently
outstanding options, warrants or rights or pursuant to any acquisition or other business
combination to be consummated after the Lock-Up Period), or sell or grant options, rights or
warrants with respect to the Common Stock (other than the grant of options pursuant to
option plans existing on the date hereof or pursuant to any acquisition or other business
combination to be consummated after the Lock-Up Period), securities of the Company that are
substantially similar to the Securities or securities convertible into or exchangeable for
Common Stock (other than the Debentures), (2) enter into any swap or other derivatives
transaction that transfers to another, in whole or in part, any of the economic benefits or
risks of ownership of the Common Stock, whether any such transaction described in clause (1)
or (2) above is to be settled by delivery of Common Stock or other securities, in cash or
otherwise, (3) file or cause to be filed a registration statement, including any amendments
thereto (other than any registration statement on Form S-8 or any registration statement on
Form S-3 required to be filed under the 2005 Registration Rights Agreement, the 2007
Registration Rights Agreement, relating solely to the resale of any shares of Common Stock
upon conversion of the Debentures), with respect to the registration of any shares of Common
Stock or securities convertible, exercisable or exchangeable into shares of Common Stock or
(4) publicly disclose the intention to do any of the foregoing, and to cause each officer
and director of the Company identified in Schedule 4(l)(i) hereto to furnish to the
Purchasers, prior to the Closing Date, a letter or letters, substantially in the form of
Exhibit C hereto (the “Lock-Up Agreements”).
- 24 -
(ii) Notwithstanding anything in this Agreement to the contrary, the Company may issue
shares of Common Stock in partial or full exchange for vessels or boats, or the acquisition
of a business entity the majority of whose assets are vessels or boats, to be used in its
ongoing business operations during the Lock-Up Period or any extension thereof.
(m) Manipulation of Price. The Company will not take, directly or indirectly, any
action designed to or that has constituted or that reasonably would be expected to cause or result
in the stabilization or manipulation of the price of any security of the Company in connection with
the offering of the Securities.
(n) PORTAL. The Company will use its reasonable best efforts to cause the Debentures
to be designated as PORTAL securities in accordance with the rules and regulations adopted by the
Financial Industry Regulatory Authority (“FINRA”) relating to trading in PORTAL and to permit the
Securities to be eligible for clearance and settlement through DTC.
(o) No Resale. The Company will not, and will use its reasonable best efforts to not
permit any of its affiliates (as defined in Rule 144 under the Securities Act) to, resell any of
the Securities that have been acquired by any of them, except for Securities purchased by the
Company or any of its affiliates and resold in a transaction registered under the Securities Act.
(p) No Integration Actions. None of the Company, any of its affiliates (as defined in
Rule 501(b) under the Securities Act) or any person acting on behalf of the Company or such
affiliate will sell, offer for sale or solicit offers to buy in respect of any security (as defined
in the Securities Act) that would be integrated with the sale of the Securities in a manner that
would require the registration under the Securities Act of the sale to the Purchasers or require
equityholder approval under the rules and regulations of the Principal Market and the Company will
take all action that is appropriate or necessary to assure that its offerings of other securities
will not be integrated for purposes of the Securities Act or the rules and regulations of the
Principal Market with the issuance of Securities contemplated hereby.
(q) Book Entry Transfer. The Company agrees to comply with all the terms and
conditions of the Registration Rights Agreement and all agreements set forth in the representation
letters of the Company to DTC, in each case relating to the approval of the Securities by DTC for
“book entry” transfer.
(r) Investment Company Actions. The Company will take such steps as shall be
necessary to ensure that neither the Company nor any of the Company’s subsidiaries becomes an
“investment company” within the meaning of such term under the Investment Company Act of 1940, as
amended.
(s) Regulation M. The Company will not take any action prohibited by Regulation M
under the Exchange Act, in connection with the distribution of the Securities contemplated hereby.
- 25 -
(t) General Solicitation. None of the Company, any of its affiliates (as defined in
Rule 501(b) under the Securities Act) or any person acting on behalf of the Company or such
affiliate will solicit any offer to buy or offer or sell the Debentures by means of any form of
general solicitation or general advertising within the meaning of Regulation D, including: (i) any
advertisement, article, notice or other communication published in any newspaper, magazine or
similar medium or broadcast over television or radio; and (ii) any seminar or meeting whose
attendees have been invited by any general solicitation or general advertising.
(u) Qualification Under Trust Indenture Act. Prior to any registration of the
Debentures or the Conversion Shares pursuant to the Registration Rights Agreement, or at such
earlier time as may be so required, the Company shall qualify the Indenture under TIA and to enter
into any necessary supplemental indentures in connection therewith.
(v) Additional Issuances of Securities.
(i) For purposes of this Section 4(v), the following definitions shall apply.
(1) “Convertible Securities” means any stock or securities (other than Options)
convertible into or exercisable or exchangeable for shares of Common Stock.
(2) “Options” means any rights, warrants or options to subscribe for or
purchase shares of Common Stock or Convertible Securities.
(3) “Common Stock Equivalents” means, collectively, Options and Convertible
Securities.
(4) “Subsequent Placement” means the offer, sale, grant of any option to
purchase, or other disposition by the Company of any of its or its Subsidiaries’
equity or equity equivalent securities, including, without limitation, any debt,
preferred stock or other instrument or security that is, at any time during its life
and under any circumstances, convertible into or exchangeable or exercisable for
shares of Common Stock or Common Stock Equivalents.
(ii) From the date hereof until the date that is the earlier of (x) the Trading Day (as
defined in the Indenture) following the date the Resale Registration Statement required to
be filed pursuant to the Registration Rights Agreement is declared effective by the
Commission and (y) the date the Securities can be sold without restriction pursuant to Rule
144 and without the requirement to be in compliance with Rule 144(c)(1), the Company will
not, directly or indirectly, file any registration statement with the Commission other than
the Resale Registration Statement (as defined in the Registration Rights Agreement).
(iii) From the date hereof until the date that is (x) in the event the price per share
of Common Stock that is offered in a Subsequent Placement is equal to or exceeds the then
applicable Conversion Price (as defined in the Indenture), the first year
- 26 -
anniversary of the date on which the Resale Registration Statement is declared
effective by the Commission or (y) in the event the price per share of Common Stock that is
offered in a Subsequent Placement is less than the then applicable Conversion Price, the
second year anniversary of the date on which the Resale Registration Statement is declared
effective by the Commission or (z) in the event that this Agreement is terminated pursuant
to Section 7(a), the first year anniversary of the date of this Agreement, the Company will
not, directly or indirectly, effect any Subsequent Placement unless the Company shall have
first complied with this Section 4(v)(iii).
(1) The Company shall deliver to each Purchaser an irrevocable written notice
(the ”Offer Notice”) of any proposed or intended issuance or sale or exchange
(the ”Offer”) of the securities being offered (the “Offered Securities”) in a
Subsequent Placement, which Offer Notice shall (w) identify and describe the Offered
Securities, (x) describe the price and other terms upon which they are to be issued,
sold or exchanged, and the number or amount of the Offered Securities to be issued,
sold or exchanged, (y) identify the persons or entities (if known) to which or with
which the Offered Securities are to be offered, issued, sold or exchanged and (z)
offer to issue and sell to or exchange with such Purchasers in the aggregate up to
thirty five percent (35%) of the Offered Securities, allocated among such Purchasers
(a) based on such Purchaser’s pro rata portion of the aggregate principal amount of
Debentures purchased hereunder (the “Basic Amount”), and (b) with respect to each
Purchaser that elects to purchase its Basic Amount, any additional portion of the
Offered Securities attributable to the Basic Amounts of other Purchasers as such
Purchaser shall indicate it will purchase or acquire should the other Purchasers
subscribe for less than their Basic Amounts (the “Undersubscription Amount”), which
process shall be repeated until the Purchasers shall have an opportunity to
subscribe for any remaining Undersubscription Amount.
(2) To accept an Offer, in whole or in part, such Purchaser must deliver a
written notice to the Company prior to the end of the fifth (5th)
Business Day after such Purchaser’s receipt of the Offer Notice (the “Offer
Period”), setting forth the portion of such Purchaser’s Basic Amount that such
Purchaser elects to purchase and, if such Purchaser shall elect to purchase all of
its Basic Amount, the Undersubscription Amount, if any, that such Purchaser elects
to purchase (in either case, the “Notice of Acceptance”). If the Basic Amounts
subscribed for by all Purchasers are less than the total of all of the Basic Amounts
permitted to be subscribed for, then each Purchaser who has set forth an
Undersubscription Amount in its Notice of Acceptance shall be entitled to purchase,
in addition to the Basic Amounts subscribed for, the Undersubscription Amount it has
subscribed for; provided, however, that if the Undersubscription Amounts subscribed
for exceed the difference between the total of all the Basic Amounts permitted to be
subscribed for and the Basic Amounts subscribed for (the “Available
Undersubscription Amount”), each Purchaser who has subscribed for any
Undersubscription Amount shall be entitled to purchase only that portion of the
Available Undersubscription Amount as the Basic Amount of such Purchaser bears to
the total Basic Amounts of all Purchasers that have
- 27 -
subscribed for Undersubscription Amounts, subject to rounding by the Company to
the extent its deems reasonably necessary. Notwithstanding the foregoing, if the
Company desires to modify or amend the terms and conditions of the Offer prior to
the expiration of the Offer Period, the Company may deliver to the Purchasers a new
Offer Notice and the Offer Period shall expire on the third (3rd)
Business Day after such Purchaser’s receipt of such new Offer Notice.
(3) The Company shall have thirty (30) Business Days from the expiration of the
Offer Period above (i) to offer, issue, sell or exchange all or any part of such
Offered Securities as to which a Notice of Acceptance has not been given by the
Purchasers (the “Refused Securities”) pursuant to a definitive agreement(s) (the
“Subsequent Placement Agreement”), but only to the offerees described in the Offer
Notice (if so described therein) and only upon terms and conditions (including,
without limitation, unit prices and interest rates) that are not more favorable to
the acquiring person or persons or less favorable to the Company than those set
forth in the Offer Notice and (ii) to publicly announce (a) the execution of such
Subsequent Placement Agreement, and (b) either (x) the consummation of the
transactions contemplated by such Subsequent Placement Agreement or (y) the
termination of such Subsequent Placement Agreement, which shall be filed with the
Commission on a Current Report on Form 8-K in the time period required under the
Exchange Act with such Subsequent Placement Agreement and any documents contemplated
therein filed as exhibits thereto as required by the Exchange Act.
(4) In the event the Company shall propose to sell less than all the Refused
Securities (any such sale to be in the manner and on the terms specified in Section
4(v)(iii)(3) above), then each Purchaser may, at its sole option and in its sole
discretion, reduce the number or amount of the Offered Securities specified in its
Notice of Acceptance to an amount that shall be not less than the number or amount
of the Offered Securities that such Purchaser elected to purchase pursuant to
Section 4(v)(iii)(2) above multiplied by a fraction, (i) the numerator of which
shall be the number or amount of Offered Securities the Company actually proposes to
issue, sell or exchange (including Offered Securities to be issued or sold to
Purchasers pursuant to Section 4(v)(iii)(3) above prior to such reduction) and (ii)
the denominator of which shall be the original amount of the Offered Securities. In
the event that any Purchaser so elects to reduce the number or amount of Offered
Securities specified in its Notice of Acceptance, the Company may not issue, sell or
exchange more than the reduced number or amount of the Offered Securities unless and
until such securities have again been offered to the Purchasers in accordance with
Section 4(v)(iii)(1) above.
(5) Upon the closing of the issuance, sale or exchange of all or less than all
of the Refused Securities, the Purchasers shall acquire from the Company, and the
Company shall issue to the Purchasers, the number or amount of Offered Securities
specified in the Notices of Acceptance, as reduced pursuant to Section 4(v)(iii)(3)
above if the Purchasers have so elected, upon the terms and
- 28 -
conditions specified in the Offer. Notwithstanding anything to the contrary
contained in this Agreement, if the Company does not consummate the closing of the
issuance, sale or exchange of all or less than all of the Refused Securities, within
thirty (30) Business Days of the expiration of the Offer Period, the Company shall
issue to the Purchasers, the number or amount of Offered Securities specified in the
Notices of Acceptance, as reduced pursuant to Section 4(v)(iii)(3) above if the
Purchasers have so elected, upon the terms and conditions specified in the Offer.
The purchase by the Purchasers of any Offered Securities is subject in all cases to
the preparation, execution and delivery by the Company and the Purchasers of a
purchase agreement relating to such Offered Securities reasonably satisfactory in
form and substance to the Purchasers and their respective counsel.
(6) Any Offered Securities not acquired by the Purchasers or other Persons in
accordance with Section 4(v)(iii)(3) above may not be issued, sold or exchanged
until they are again offered to the Purchasers under the procedures specified in
this Agreement.
(7) The Company and the Purchasers agree that if any Purchaser elects to
participate in the Offer, (x) neither the Subsequent Placement Agreement with
respect to such Offer nor any other transaction documents related thereto
(collectively, the “Subsequent Placement Documents”) shall include any term or
provisions not otherwise required by law whereby any Purchaser shall be required to
agree to any restrictions in trading as to any securities of the Company owned by
such Purchaser prior to such Subsequent Placement, and (y) any registration rights
set forth in such Subsequent Placement Documents shall be similar in all material
respects to the registration rights contained in the Registration Rights Agreement.
(8) Notwithstanding anything to the contrary in this Section 4(v) and unless
otherwise agreed to by the Purchasers, the Company shall either confirm in writing
to the Purchasers that the transaction with respect to the Subsequent Placement has
been abandoned or shall publicly disclose its intention to issue the Offered
Securities, in either case in such a manner such that the Purchasers will not be in
possession of material non-public information, by the thirtieth (30th)
Business Day following delivery of the Offer Notice. If by the thirtieth
(30th) Business Day following delivery of the Offer Notice no public
disclosure regarding a transaction with respect to the Offered Securities has been
made, and no notice regarding the abandonment of such transaction has been received
by the Purchasers, such transaction shall be deemed to have been abandoned and the
Purchasers shall not be deemed to be in possession of any material, non-public
information with respect to the Company. Should the Company decide to pursue such
transaction with respect to the Offered Securities, the Company shall provide each
Purchaser with another Offer Notice and each Purchaser will again have the right of
participation set forth in this Section 4(v)(iii). The Company shall not be
permitted to deliver more than one such Offer Notice to the Purchasers in any 60 day
period.
- 29 -
(iv) The restrictions contained in subsections (ii) and (iii) of this Section 4(v)
shall not apply in connection with the issuance of any Excluded Securities. As used herein,
(x) “Excluded Securities” means any shares of Common Stock issued or issuable: (A) in
connection with any Approved Share Plan; (B) in connection with any stock split, stock
dividend, recapitalization or similar transaction by the Company for which adjustment is
made pursuant to Section 10.05 or 10.06 of the Indenture; (C) upon conversion of the
Debentures; (D) upon conversion of any Options or Convertible Securities which are
outstanding on the day immediately preceding the date of this Agreement, provided that the
terms of such Options or Convertible Securities are not amended, modified or changed on or
after the Closing Date; and (E) such securities set forth on Schedule 4(l) to be issued in
connection with the Acquisition, and (y) “Approved Share Plan” means any employee benefit
plan which has been approved by the Board of Directors of the Company, pursuant to which the
Company’s securities may be issued to any employee, officer or director for services
provided to the Company.
(w) Closing Sets. As soon as is reasonably practicable after the Closing Date, the
Company agrees to deliver, or cause to be delivered, to each Purchaser and Xxxxxxx Xxxx & Xxxxx LLP
executed copies of the Transaction Documents, Securities and other document required to be
delivered to any party pursuant to Section 7 hereof.
(x) Lock-Up Agreements. The Company shall not amend or waive any provision of any of
the Lock-Up Agreements.
(y) Stockholder Approval. The Company shall prepare and file with the SEC, as
promptly as practicable after the date hereof but in no event later than thirty (30) calendar days
after the date hereof, proxy materials, substantially in the form that has been previously reviewed
and approved by the Purchasers and Xxxxxxx Xxxx & Xxxxx LLP, at the expense of the Company, with
respect to a special or annual meeting of the stockholders of the Company (the “Stockholder
Meeting”), which shall be promptly called and held not later than September 30, 2008 if the proxy
materials are not reviewed by the SEC and not later than October 31, 2008 if the proxy materials
are reviewed by the SEC (the “Stockholder Meeting Deadline”), soliciting each such stockholder’s
affirmative vote at the Stockholder Meeting for approval of resolutions (“Stockholder Resolutions”)
providing for the Company’s issuance of all of the Securities as described in the Transaction
Documents in accordance with applicable law and the rules and regulations of the Principal Market
(such affirmative approval being referred to herein as the “Stockholder Approval” and the date such
affirmative approval is obtained, the “Stockholder Approval Date”), and the Company shall use its
best efforts to solicit its stockholders’ approval of the Stockholder Resolutions and to cause the
Board of Directors of the Company to recommend to the stockholders that they approve the
Stockholder Resolutions. If, despite the Company’s reasonable best efforts the Stockholder
Approval is not obtained on or prior to the Stockholder Meeting Deadline, the Company promptly
thereafter shall cause an additional Stockholder Meeting to be held for this purpose.
5. CONDITIONS TO THE COMPANY’S OBLIGATION TO SELL.
The obligation of the Company hereunder to issue and sell the Debentures to each of the
Closing Purchasers at the Closing hereunder is subject to the satisfaction, at or before the
- 30 -
Closing Date, of each of the following conditions, provided that these conditions are for the
Company’s sole benefit and may be waived by the Company at any time in its sole discretion by
providing each Closing Purchaser with prior written notice thereof:
(a) Such Closing Purchaser and each other Closing Purchaser purchasing Debentures at such
Closing shall have executed each of the Transaction Documents to which it is a party and delivered
the same to the Company.
(b) Such Closing Purchaser and each other Closing Purchaser purchasing Debentures at such
Closing shall have delivered to the Company the Purchase Price (less any amounts withheld pursuant
to Section 4(g)) for the Debentures being purchased by such Closing Purchaser at the Closing by
wire transfer of immediately available funds pursuant to the wire instructions provided by the
Company.
(c) The representations and warranties of such Closing Purchaser purchasing Debentures at such
Closing shall be true and correct in all material respects as of the date when made and as of the
Closing as though made at that time (except for representations and warranties that speak as of a
specific date), and such Closing Purchaser shall have performed, satisfied and complied in all
material respects with the covenants, agreements and conditions required by this Agreement to be
performed, satisfied or complied with by such Closing Purchaser at or prior to the Closing Date.
6. CONDITIONS TO EACH PURCHASER’S OBLIGATION TO PURCHASE.
The obligation of the Closing Purchasers to purchase the Debentures at such Closing is subject
to the satisfaction, at or before the Closing Date, of each of the following conditions, provided
that these conditions are for the Closing Purchasers’ sole benefit and may be waived by the Closing
Purchasers at any time in its sole discretion by providing the Company with prior written notice
thereof:
(a) The Company shall have executed and delivered to the Closing Purchasers (i) each of the
Transaction Documents and (ii) the Debentures (for the account of such Closing Purchaser as such
Closing Purchaser shall instruct) being purchased by such Closing Purchaser at the Closing pursuant
to this Agreement.
(b) The Trustee shall have executed and delivered the Indenture, and the Closing Purchasers
shall have received an original copy thereof, duly executed and delivered by the Trustee and the
Company.
(c) The Closing Purchasers shall have received (A) the opinion of Bartlit Xxxx Xxxxxx
Xxxxxxxxx & Xxxxx LLP, the Company’s outside U.S. counsel, dated as of the Closing Date, in a form
reasonable acceptable to the Purchasers and the Company, (B) the opinion of Xxxxx X. Xxxxx, Vice
President and General Counsel of the Company, dated as of the Closing Date, in a form reasonable
acceptable to the Purchasers and the Company and (C) the opinion of Xxxxx, Xxxxxx-Xxxxxx &
Xxxxxxxxx, Norwegian counsel to the Company, dated as of the Closing Date, in a form reasonable
acceptable to the Purchasers and the Company.
- 31 -
(d) The Company shall have delivered to the Closing Purchasers lock-up agreements with each of
the Company’s executive officers and directors in substantially the form attached hereto as
Exhibit C, duly executed and delivered by such executive officers and directors.
(e) The Company shall have delivered to the Closing Purchasers a certificate evidencing the
formation and good standing of the Company and each of its Significant Subsidiaries in such
entity’s jurisdiction of formation issued by the Secretary of State (or comparable office) of such
jurisdiction, as of a date within ten (10) days of the Closing Date.
(f) The Company shall have delivered to the Closing Purchasers a certificate evidencing the
Company’s qualification as a foreign corporation and good standing issued by the Secretary of State
(or comparable office) of each jurisdiction in which the Company is currently qualified to conduct
business, as of a date within ten (10) days of the Closing Date.
(g) The Company shall have delivered to the Closing Purchasers a certified copy of the
Certificate of Incorporation as certified by the Secretary of State of the State of Delaware within
ten (10) days of the Closing Date.
(h) The Company shall have delivered to the Closing Purchasers a certificate, executed by the
Secretary of the Company and dated as of the Closing Date, as to (i) the resolutions consistent
with Section 3(b) as adopted by the Company’s Board of Directors in a form reasonably acceptable to
the Closing Purchasers, (ii) the Certificate of Incorporation and (iii) the Bylaws, each as in
effect at the Closing, in the form attached hereto as Exhibit D.
(i) The representations and warranties of the Company shall be true and correct in all
material respects (except for those representations and warranties that are qualified by
materiality or Material Adverse Effect, which shall be true and correct in all respects) as of the
date when made and as of the Closing Date as though made at that time (except for representations
and warranties that speak as of a specific date, which shall be true and correct as of such
specified date) and the Company shall have performed, satisfied and complied in all material
respects with the covenants, agreements and conditions required by the Transaction Documents to be
performed, satisfied or complied with by the Company at or prior to the Closing Date. The Closing
Purchasers shall have received a certificate, executed by the Chief Executive Officer of the
Company, dated as of the Closing Date, to the foregoing effect and as to such other matters as may
be reasonably requested by the Closing Purchasers in the form attached hereto as Exhibit E.
(j) The Company shall have delivered to the Closing Purchasers a letter from the Company’s
transfer agent certifying the number of shares of Common Stock outstanding as of a date within five
days of the Closing Date.
(k) Subsequent to the execution and delivery of this Agreement and prior to the Closing Date,
there shall not have occurred any of the following: (i) trading in securities generally on the
Principal Market shall have been suspended or materially limited or the settlement of such trading
generally shall have been materially disrupted or minimum prices
- 32 -
shall have been established on any such exchange or such market by the Commission, by such
exchange or by any other regulatory body or governmental authority having jurisdiction, (ii) a
banking moratorium shall have been declared by federal or New York state authorities, (iii) the
United States shall have become engaged in hostilities, there shall have been an escalation in
hostilities involving the United States or there shall have been a declaration of a national
emergency or war by the United States or (iv) there shall have occurred such a material adverse
change in general economic, political or financial conditions, including, without limitation, as a
result of terrorist activities after the date hereof (or the effect of international conditions on
the financial markets in the United States shall be such), as to make it, in the judgment of the
Closing Purchasers, impracticable or inadvisable to proceed with the offering or delivery of the
Securities being delivered on the Closing Date on the terms and in the manner contemplated in the
Transaction Documents.
(l) The Company shall have obtained all governmental, regulatory or third party consents and
approvals, if any, necessary for the sale of the Securities.
(m) The Debentures shall have been approved for trading on PORTAL, subject only to notice of
issuance at or prior to the time of purchase.
(n) Subsequent to the execution and delivery of this Agreement and prior to the Closing Date,
there shall not have occurred any downgrading, nor shall any public notice have been given of (i)
any intended downgrading or (ii) any review or possible change that does not indicate an
improvement in the rating accorded any securities of or guaranteed by the Company by any
“nationally recognized statistical rating organization”, as such term is defined for purposes of
Rule 436(g)(2) under the Securities Act.
(o) The Company, directly or indirectly, shall have acquired (at a price per share not to have
exceeded NOK 32) or have the contractual right to acquire (at a price per share not to exceed NOK
32) at least 50.1% of all of the issued and outstanding shares of DeepOcean’s share capital on a
fully diluted basis, assuming the exercise or conversion of all securities, options, warrants,
calls, rights, commitments, agreements, arrangements or undertakings that are convertible into or
exchangeable for shares of DeepOcean and the Private Placement Shares shall have been approved by
DeepOcean’s Board of Directors, issued by DeepOcean and successfully registered in the Norwegian
Register of Business Enterprises and the Closing Purchasers shall have received evidence reasonably
satisfactory to such Closing Purchasers that the conditions set forth in this Section 6(o) shall
have been satisfied in full.
(p) The Company shall have delivered to the Closing Purchasers such other documents relating
to the transactions contemplated by this Agreement as the Closing Purchasers or their counsel may
reasonably request.
7. TERMINATION.
(a) In the event that the Company shall have failed to obtain the right to purchase or
subscribe for at least 50.1% of all of the issued and outstanding shares of DeepOcean’s share
capital on a fully diluted basis, assuming the exercise or conversion of all securities, options,
warrants, calls, rights, commitments, agreements, arrangements or
- 33 -
undertakings that are convertible into or exchangeable for shares of DeepOcean, by 12:00 p.m.
New York City time on May 15, 2008, this Agreement shall automatically terminate and be of no
further force and effect; provided, however, that the Company shall remain obligated to reimburse
the Purchasers for the expenses described in Section 4(g) above and that the Purchasers shall
continue to have the rights set forth in Section 4(v)(iii) above.
(b) In the event that the Closing shall not have occurred with respect to a Purchaser on or
before the Closing Conditions Deadline due to the Company’s or such Purchaser’s failure to satisfy
the conditions set forth in Sections 5 and 6 above (and the nonbreaching party’s failure to waive
such unsatisfied condition(s)), the nonbreaching party shall have the option to terminate its
rights and obligations to sell or purchase Debentures hereunder, as applicable, with respect to
such breaching party at the close of business on such date without liability of any party to any
other party; provided, however, that if such rights and obligations are terminated pursuant to this
Section 8, (x) any such termination of such rights and obligations under this Agreement by a
Purchaser shall only be effective with respect to such Purchaser and shall not effect the rights to
purchase Debentures of any other Purchasers hereunder in connection with a Purchase Election Notice
of such other Purchasers and (y) the Company shall remain obligated to reimburse the non-breaching
Purchasers for the expenses described in Section 4(g) above. Notwithstanding anything herein to
the contrary, if a Purchaser has not submitted a Purchaser Election Notice on or prior to the
Purchase Election Notice Deadline, such Purchaser’s rights and obligations to purchase Debentures
hereunder shall automatically terminate with respect to such Purchaser.
8. MISCELLANEOUS.
(a) Governing Law; Jurisdiction; Jury Trial. All questions concerning the
construction, validity, enforcement and interpretation of this Agreement shall be governed by the
internal laws of the State of New York, without giving effect to any choice of law or conflict of
law provision or rule (whether of the State of New York or any other jurisdictions) that would
cause the application of the laws of any jurisdictions other than the State of New York. Each
party hereby irrevocably submits to the exclusive jurisdiction of the state and federal courts
sitting in The City of New York, Borough of Manhattan, for the adjudication of any dispute
hereunder or in connection herewith or with any transaction contemplated hereby or discussed
herein, and hereby irrevocably waives, and agrees not to assert in any suit, action or proceeding,
any claim that it is not personally subject to the jurisdiction of any such court, that such suit,
action or proceeding is brought in an inconvenient forum or that the venue of such suit, action or
proceeding is improper. Each party hereby irrevocably waives personal service of process and
consents to process being served in any such suit, action or proceeding by mailing a copy thereof
to such party at the address for such notices to it under this Agreement and agrees that such
service shall constitute good and sufficient service of process and notice thereof. Nothing
contained herein shall be deemed to limit in any way any right to serve process in any manner
permitted by law. EACH PARTY HEREBY IRREVOCABLY WAIVES ANY RIGHT IT MAY HAVE, AND AGREES NOT TO
REQUEST, A JURY TRIAL FOR THE ADJUDICATION OF ANY DISPUTE HEREUNDER OR IN CONNECTION WITH OR
ARISING OUT OF THIS AGREEMENT OR ANY TRANSACTION CONTEMPLATED HEREBY.
- 34 -
(b) Counterparts. This Agreement may be executed in two or more identical
counterparts, all of which shall be considered one and the same agreement and shall become
effective when counterparts have been signed by each party and delivered to the other party;
provided that a facsimile signature shall be considered due execution and shall be binding upon the
signatory thereto with the same force and effect as if the signature were an original, not a
facsimile signature.
(c) Headings. The headings of this Agreement are for convenience of reference and
shall not form part of, or affect the interpretation of, this Agreement.
(d) Severability. If any provision of this Agreement is prohibited by law or
otherwise determined to be invalid or unenforceable by a court of competent jurisdiction, the
provision that would otherwise be prohibited, invalid or unenforceable shall be deemed amended to
apply to the broadest extent that it would be valid and enforceable, and the invalidity or
unenforceability of such provision shall not affect the validity of the remaining provisions of
this Agreement so long as this Agreement as so modified continues to express, without material
change, the original intentions of the parties as to the subject matter hereof and the prohibited
nature, invalidity or unenforceability of the provision(s) in question does not substantially
impair the respective expectations or reciprocal obligations of the parties or the practical
realization of the benefits that would otherwise be conferred upon the parties. The parties will
endeavor in good faith negotiations to replace the prohibited, invalid or unenforceable
provision(s) with a valid provision(s), the effect of which comes as close as possible to that of
the prohibited, invalid or unenforceable provision(s).
(e) Entire Agreement; Amendments. This Agreement supersedes all other prior oral or
written agreements between the Purchasers, the Company, their affiliates and Persons acting on
their behalf with respect to the matters discussed herein, and this Agreement and the instruments
referenced herein contain the entire understanding of the parties with respect to the matters
covered herein and therein and, except as specifically set forth herein or therein, neither the
Company nor any Purchaser makes any representation, warranty, covenant or undertaking with respect
to such matters. No provision of this Agreement may be amended other than by an instrument in
writing signed by the Company and the holders of at least a majority of the aggregate principal
amount of the Debentures issued and issuable hereunder, and any amendment to this Agreement made in
conformity with the provisions of this Section 10(e) shall be binding on all Purchasers and holders
of Debentures, as applicable. No provision hereof may be waived other than by an instrument in
writing signed by the party against whom enforcement is sought. No such amendment shall be
effective to the extent that it applies to less than all of the holders of the applicable
Securities then outstanding. No consideration shall be offered or paid to any Person to amend or
consent to a waiver or modification of any provision of any of the Transaction Documents unless the
same consideration also is offered to all of the parties to the Transaction Documents or holders of
Debentures, as the case may be. The Company has not, directly or indirectly, made any agreements
with any Purchasers relating to the terms or conditions of the transactions contemplated by the
Transaction Documents except as set forth in the Transaction Documents.
(f) Notices. Any notices, consents, waivers or other communications required or
permitted to be given under the terms of this Agreement must be in writing and will
- 35 -
be deemed to have been delivered: (i) upon receipt, when delivered personally; (ii) upon
receipt, when sent by facsimile (provided confirmation of transmission is mechanically or
electronically generated and kept on file by the sending party); or (iii) one Business Day after
deposit with an overnight courier service, in each case properly addressed to the party to receive
the same. The addresses and facsimile numbers for such communications shall be:
| If to the Company: | ||||||
| Trico Marine Services, Inc. | ||||||
| 0000 Xxxxxxxxx Xxxxxxx, Xxxxx 0000 | ||||||
| Xxxxxxx, Xxxxx 00000 | ||||||
| Telephone: | (000) 000-0000 | |||||
| Facsimile: | (000) 000-0000 | |||||
| Attention: | General Counsel | |||||
| with a copy (for informational purposes only) to: | ||||||
| Bartlit Xxxx Xxxxxx Xxxxxxxxx & Xxxxx LLP | ||||||
| 0000 Xxxxxxx Xxxxxx, 0xx Xxxxx | ||||||
| Xxxxxx, Xxxxxxxx 00000 | ||||||
| Telephone: | (000) 000-0000 | |||||
| Facsimile: | (000) 000-0000 | |||||
| Attention: | Xxxxx X. Xxxxxxxxx, Esq. | |||||
If to a Purchaser, to its address and facsimile number set forth on the Schedule of Purchasers,
with copies to such Purchaser’s representatives as set forth on the Schedule of Purchasers,
| with a copy (for informational purposes only) to: | ||||||
| Xxxxxxx Xxxx & Xxxxx LLP | ||||||
| 000 Xxxxx Xxxxxx | ||||||
| Xxx Xxxx, Xxx Xxxx 00000 | ||||||
| Telephone: | (000) 000-0000 | |||||
| Facsimile: | (000) 000-0000 | |||||
| Attention: | Xxxxxxx X. Xxxxx, Esq. | |||||
or to such other address and/or facsimile number and/or to the attention of such other Person as
the recipient party has specified by written notice given to each other party five (5) days prior
to the effectiveness of such change. Written confirmation of receipt (A) given by the recipient of
such notice, consent, waiver or other communication, (B) mechanically or electronically generated
by the sender’s facsimile machine containing the time, date, recipient facsimile number and an
image of the first page of such transmission or (C) provided by an overnight courier service shall
be rebuttable evidence of personal service, receipt by facsimile or receipt from an overnight
courier service in accordance with clause (i), (ii) or (iii) above, respectively.
(g) Successors and Assigns. This Agreement shall be binding upon and inure to the
benefit of the parties and their respective successors and assigns, including any
- 36 -
purchasers of the Debentures. The Company shall not assign this Agreement or any rights or
obligations hereunder without the prior written consent of the holders of at least a majority of
the aggregate principal amount of the Debentures issued and issuable hereunder. A Purchaser may
assign some or all of its rights hereunder without the consent of the Company, in which event such
assignee shall be deemed to be a Purchaser hereunder with respect to such assigned rights.
(h) No Third Party Beneficiaries. This Agreement is intended for the benefit of the
parties hereto and their respective permitted successors and assigns, and is not for the benefit
of, nor may any provision hereof be enforced by, any other Person.
(i) Survival. Unless this Agreement is terminated under Section 7, the
representations and warranties of the Company and the Purchasers contained in Sections 2 and 3 and
the agreements and covenants set forth in Sections 4 and 8 shall survive the Closing and delivery
and exercise of the Securities, as applicable. Each Purchaser shall be responsible only for its
own representations, warranties, agreements and covenants hereunder.
(j) Further Assurances. Each party shall do and perform, or cause to be done and
performed, all such further acts and things, and shall execute and deliver all such other
agreements, certificates, instruments and documents, as any other party may reasonably request in
order to carry out the intent and accomplish the purposes of this Agreement and the consummation of
the transactions contemplated hereby.
(k) Indemnification. In consideration of each Purchaser’s execution and delivery of
the Transaction Documents and acquiring the Securities thereunder and in addition to all of the
Company’s other obligations under the Transaction Documents, the Company shall defend, protect,
indemnify and hold harmless each Purchaser and each other holder of the Securities and all of their
stockholders, partners, members, officers, directors, employees and direct or indirect investors
and any of the foregoing Persons’ agents or other representatives (including, without limitation,
those retained in connection with the transactions contemplated by this Agreement) (collectively,
the “Indemnitees”), as incurred, from and against any and all actions, causes of action, suits,
claims, losses, costs, penalties, fees, liabilities and damages, and expenses in connection
therewith (irrespective of whether any such Indemnitee is a party to the action for which
indemnification hereunder is sought), and including reasonable attorneys’ fees and disbursements
(the “Indemnified Liabilities”), incurred by any Indemnitee as a result of, or arising out of, or
relating to (a) any misrepresentation or breach of any representation or warranty made by the
Company in the Transaction Documents or any other certificate, instrument or document contemplated
hereby or thereby, (b) any breach of any covenant, agreement or obligation of the Company contained
in the Transaction Documents or any other certificate, instrument or document contemplated hereby
or thereby or (c) any cause of action, suit or claim brought or made against such Indemnitee by a
third party (including for these purposes a derivative action brought on behalf of the Company) and
arising out of or resulting from (i) the execution, delivery, performance or enforcement of the
Transaction Documents or any other certificate, instrument or document contemplated hereby or
thereby, (ii) any transaction financed or to be financed in whole or in part, directly or
indirectly, with the proceeds of the issuance of the Securities, (iii) any disclosure made by such
Purchaser pursuant to Section 4(i), or (iv) the status of such Purchaser or holder of the
Securities as an investor in the Company pursuant to the transactions contemplated by the
Transaction Documents. To the
- 37 -
extent that the foregoing undertaking by the Company may be unenforceable for any reason, the
Company shall make the maximum contribution to the payment and satisfaction of each of the
Indemnified Liabilities which is permissible under applicable law. Except as otherwise set forth
herein, the mechanics and procedures with respect to the rights and obligations under this Section
9(k) shall be the same as those set forth in Section 6 of the Registration Rights Agreement.
(l) No Strict Construction. The language used in this Agreement will be deemed to be
the language chosen by the parties to express their mutual intent, and no rules of strict
construction will be applied against any party.
(m) Remedies. Each Purchaser and each holder of the Securities shall have all rights
and remedies set forth in the Transaction Documents and all rights and remedies which such holders
have been granted at any time under any other agreement or contract and all of the rights which
such holders have under any law. Any Person having any rights under any provision of this
Agreement shall be entitled to enforce such rights specifically (without posting a bond or other
security), to recover damages by reason of any breach of any provision of this Agreement and to
exercise all other rights granted by law. Furthermore, the Company recognizes that in the event
that it fails to perform, observe, or discharge any or all of its obligations under the Transaction
Documents, any remedy at law may prove to be inadequate relief to the Purchasers. The Company
therefore agrees that the Purchasers shall be entitled to seek temporary and permanent injunctive
relief in any such case without the necessity of proving actual damages and without posting a bond
or other security.
(n) Independent Nature of Purchasers’ Obligations and Rights. The obligations of each
Purchaser under any Transaction Document are several and not joint with the obligations of any
other Purchaser, and no Purchaser shall be responsible in any way for the performance of the
obligations of any other Purchaser under any Transaction Document. Nothing contained herein or in
any other Transaction Document, and no action taken by any Purchaser pursuant hereto or thereto,
shall be deemed to constitute the Purchasers as a partnership, an association, a joint venture or
any other kind of entity, or create a presumption that the Purchasers are in any way acting in
concert or as a group with respect to such obligations or the transactions contemplated by the
Transaction Documents and the Company acknowledges that the Purchasers are not acting in concert or
as a group, and the Company will not assert any such claim, with respect to such obligations or the
transactions contemplated by the Transaction Documents. Each Purchaser confirms that it has
independently participated in the negotiation of the transaction contemplated hereby with the
advice of its own counsel and advisors. Each Purchaser shall be entitled to independently protect
and enforce its rights, including, without limitation, the rights arising out of this Agreement or
out of any other Transaction Documents, and it shall not be necessary for any other Purchaser to be
joined as an additional party in any proceeding for such purpose.
[Signature Page Follows]
- 38 -
IN WITNESS WHEREOF, each Purchaser and the Company have caused their respective signature page
to this Securities Purchase Agreement to be duly executed as of the date first written above.
| COMPANY: TRICO MARINE SERVICES, INC. |
||||
| By: | /s/ Xxxxx Xxxxx | |||
| Name: | Xxxxx Xxxxx | |||
| Title: | VP and General Counsel | |||
[Signature Page to Securities Purchase Agreement]
IN WITNESS WHEREOF, each Purchaser and the Company have caused their respective signature page
to this Securities Purchase Agreement to be duly executed as of the date first written above.
| PURCHASERS: HIGHBRIDGE INTERNATIONAL LLC By: HIGHBRIDGE CAPITAL MANAGEMENT, LLC, its Trading Manager |
||||
| By: | /s/ Xxxx X. Chill | |||
| Name: | Xxxx X. Chill | |||
| Title: | Managing Director | |||
[Signature Page to Securities Purchase Agreement]
IN WITNESS WHEREOF, each Purchaser and the Company have caused their respective signature page
to this Securities Purchase Agreement to be duly executed as of the date first written above.
| HIGHBRIDGE CONVERTIBLE ARBITRAGE MASTER FUND, L.P. By: HIGHBRIDGE CAPITAL MANAGEMENT, LLC, its Trading Manager |
||||
| By: | /s/ Xxxx X. Xxxxxxxx | |||
| Name: | Xxxx Xxxxxxxx | |||
| Title: | Managing Director | |||
[Signature Page to Securities Purchase Agreement]
IN WITNESS WHEREOF, each Purchaser and the Company have caused their respective signature page
to this Securities Purchase Agreement to be duly executed as of the date first written above.
| PORTSIDE GROWTH AND OPPORTUNITY FUND |
||||
| By: | /s/ Xxxx Xxxxx | |||
| Name: | Xxxx Xxxxx | |||
| Title: | ||||
[Signature Page to Securities Purchase Agreement]
IN WITNESS WHEREOF, each Purchaser and the Company have caused their respective signature page
to this Securities Purchase Agreement to be duly executed as of the date first written above.
| CAPITAL VENTURES INTERNATIONAL By: HEIGHTS CAPITAL MANAGEMENT, INC, its Authorized Agent |
||||
| By: | /s/ Xxxxxx Xxxxxxxx | |||
| Name: | Xxxxxx Xxxxxxxx | |||
| Title: | Investment Manager | |||
[Signature Page to Securities Purchase Agreement]
IN WITNESS WHEREOF, each Purchaser and the Company have caused their respective signature page
to this Securities Purchase Agreement to be duly executed as of the date first written above.
| WHITEBOX CONVERTIBLE ARBITRAGE PARTNERS, LP |
||||
| By: | /s/ Xxxx Xxxxxxxxx | |||
| Name: | Xxxx Xxxxxxxxx | |||
| Title: | Chief Legal Officer | |||
[Signature Page to Securities Purchase Agreement]
IN WITNESS WHEREOF, each Purchaser and the Company have caused their respective signature page
to this Securities Purchase Agreement to be duly executed as of the date first written above.
| WHITEBOX INTERMARKET PARTNERS, LP |
||||
| By: | /s/ Xxxx Xxxxxxxxx | |||
| Name: | Xxxx Xxxxxxxxx | |||
| Title: | Chief Legal Officer | |||
[Signature Page to Securities Purchase Agreement]
IN WITNESS WHEREOF, each Purchaser and the Company have caused their respective signature page
to this Securities Purchase Agreement to be duly executed as of the date first written above.
| GUGGENHEIM PORTFOLIO COMPANY XXXI, LLC |
||||
| By: | /s/ Xxxxxxxx Xxxx | |||
| Name: | Xxxxxxxx Xxxx | |||
| Title: | Chief Operating Officer | |||
[Signature Page to Securities Purchase Agreement]
IN WITNESS WHEREOF, each Purchaser and the Company have caused their respective signature page
to this Securities Purchase Agreement to be duly executed as of the date first written above.
| PANDORA SELECT PARTNERS, LP |
||||
| By: | /s/ Xxxx Xxxxxxxxx | |||
| Name: | Xxxx Xxxxxxxxx | |||
| Title: | Chief Legal Officer | |||
[Signature Page to Securities Purchase Agreement]
IN WITNESS WHEREOF, each Purchaser and the Company have caused their respective signature page
to this Securities Purchase Agreement to be duly executed as of the date first written above.
| WHITEBOX SPECIAL OPPORTUNITIES PARTNERS, SERIES B, LP |
||||
| By: | /s/ Xxxx Xxxxxxxxx | |||
| Name: | Xxxx Xxxxxxxxx | |||
| Title: | Chief Legal Officer | |||
[Signature Page to Securities Purchase Agreement]
IN WITNESS WHEREOF, each Purchaser and the Company have caused their respective signature page
to this Securities Purchase Agreement to be duly executed as of the date first written above.
| RADCLIFFE SPC, LTD. FOR AND ON BEHALF OF THE CLASS A SEGREGATED PORTFOLIO | ||||
| BY: RG CAPITAL MANAGEMENT, L.P. BY: RGC MANAGEMENT COMPANY, LLC |
||||
| By: | /s/ Xxxxxx X. Xxxxxxxxxx | |||
| Name: | Xxxxxx X. Xxxxxxxxxx | |||
| Title: | Managing Director | |||
[Signature Page to Securities Purchase Agreement]
IN WITNESS WHEREOF, each Purchaser and the Company have caused their respective signature page
to this Securities Purchase Agreement to be duly executed as of the date first written above.
| UBS X’XXXXXX LLC FBO X’XXXXXX GLOBAL CONVERTIBLE ARBITRAGE MASTER LIMITED |
||||
| By: | /s/ Xxxxxx Xxxxxx | |||
| Name: | Xxxxxx Xxxxxx | |||
| Title: | Managing Director | |||
[Signature Page to Securities Purchase Agreement]
IN WITNESS WHEREOF, each Purchaser and the Company have caused their respective signature page
to this Securities Purchase Agreement to be duly executed as of the date first written above.
| UBS X’XXXXXX LLC FBO X’XXXXXX GLOBAL CONVERTIBLE ARBITRAGE II MASTER LIMITED |
||||
| By: | /s/ Xxxxxx Xxxxxx | |||
| Name: | Xxxxxx Xxxxxx | |||
| Title: | Managing Director | |||
[Signature Page to Securities Purchase Agreement]
IN WITNESS WHEREOF, each Purchaser and the Company have caused their respective signature page
to this Securities Purchase Agreement to be duly executed as of the date first written above.
| UBS X’XXXXXX LLC FBO X’XXXXXX PIPES CORPORATE STRATEGIES MASTER LIMITED |
||||
| By: | /s/ Xxxxxx Xxxxxx | |||
| Name: | Xxxxxx Xxxxxx | |||
| Title: | Managing Director | |||
[Signature Page to Securities Purchase Agreement]
IN WITNESS WHEREOF, each Purchaser and the Company have caused their respective signature page
to this Securities Purchase Agreement to be duly executed as of the date first written above.
| LIBERTY HARBOR MASTER FUND I, L.P. |
||||
| By: | /s/ Brendan Mc Govern | |||
| Name: | Brendan Mc Govern | |||
| Title: | Vice President | |||
[Signature Page to Securities Purchase Agreement]
IN WITNESS WHEREOF, each Purchaser and the Company have caused their respective signature page
to this Securities Purchase Agreement to be duly executed as of the date first written above.
| INTERLACHEN CONVERTIBLE INVESTMENTS LTD. |
||||
| By: INTERLACHEN CAPITAL GROUP LP, Authorized Signatory |
||||
| By: | /s/ Xxxxx X. Xxxxxxx | |||
| Name: | Xxxxx X. Xxxxxxx | |||
| Title: | Authorized Signatory | |||
[Signature Page to Securities Purchase Agreement]
IN WITNESS WHEREOF, each Purchaser and the Company have caused their respective signature page
to this Securities Purchase Agreement to be duly executed as of the date first written above.
| ARISTEIA INTERNATIONAL LIMITED |
||||
| By: | /s/ Xxxxxx X. Xxxxx | |||
| Name: | Xxxxxx X. Xxxxx, Xx. | |||
| Title: | Managing Member Aristeia Capital, L.L.C. |
|||
[Signature Page to Securities Purchase Agreement]
IN WITNESS WHEREOF, each Purchaser and the Company have caused their respective signature page
to this Securities Purchase Agreement to be duly executed as of the date first written above.
| ARISTEIA PARTNERS, L.P. |
||||
| By: | /s/ Xxxxxx X. Xxxxx, Xx. | |||
| Name: | Xxxxxx X. Xxxxx, Xx. | |||
| Title: | Managing Member Aristeia Capital, L.L.C. |
|||
[Signature Page to Securities Purchase Agreement]
IN WITNESS WHEREOF, each Purchaser and the Company have caused their respective signature page
to this Securities Purchase Agreement to be duly executed as of the date first written above.
| ARISTEIA SPECIAL INVESTMENTS MASTER, L.P. |
||||
| By: | /s/ Xxxxxx X. Xxxxx, Xx. | |||
| Name: | Managing Member | |||
| Title: | Aristeia Capital, L.L.C. | |||
[Signature Page to Securities Purchase Agreement]
SCHEDULE OF PURCHASERS
| (1) | (2) | (3) | (4) | (5) | ||||||||
| Address and | Aggregate Principal Amount | Legal Representative’s | ||||||||||
| Purchaser | Facsimile Number | of Debentures | Purchase Price | Address and Facsimile Number | ||||||||
Highbridge International LLC |
c/o
Highbridge Capital Management, LLC 0 Xxxx 00xx Xxxxxx, 00xx Xxxxx Xxx Xxxx,Xxx Xxxx 00000 Attention: Xxx X. Xxxxxx Xxxx X. Chill Facsimile: (000) 000-0000 Telephone: (000) 000-0000 Residence: Cayman Islands |
$ | 74,000,000 | $ | 74,000,000 | Xxxxxxx
Xxxx & Xxxxx LLP 000 Xxxxx Xxxxxx Xxx Xxxx, Xxx Xxxx 00000 Attention: Xxxxxxx Xxxxx, Esq. Facsimile: (000) 000-0000 Telephone: (000) 000-0000 |
||||||
Highbridge
Convertible Arbitrage Master Fund, L.P. |
c/o
Highbridge Capital Management, LLC 0 Xxxx 00xx Xxxxxx, 00xx Xxxxx Xxx Xxxx, Xxx Xxxx 00000 Attention: Xxx X. Xxxxxx Xxxx X. Chill Facsimile: (000) 000-0000 Telephone: (000) 000-0000 Residence: Cayman Islands |
$ | 6,000,000 | $ | 6,000,000 | Xxxxxxx Xxxx & Xxxxx LLP 000 Xxxxx Xxxxxx Xxx Xxxx, Xxx Xxxx 00000 Attention: Xxxxxxx Xxxxx, Esq. Facsimile: (000) 000-0000 Telephone: (000) 000-0000 |
||||||
Portside
Growth and Opportunity Fund |
c/o Ramius LLC 000 Xxxxxxxxx
Xxxxxx, 00xx Xxxxx Xxx Xxxx, XX 00000 Attention: Xxxxxxx
Xxxxx Facsimile: (000) 000-0000 Telephone: (000) 000-0000 Residence: Cayman Islands |
$ | 55,000,000 | $ | 55,000,000 | N/A | ||||||
| (1) | (2) | (3) | (4) | (5) | ||||||||
| Address and | Aggregate Principal Amount | Legal Representative’s | ||||||||||
| Purchaser | Facsimile Number | of Debentures | Purchase Price | Address and Facsimile Number | ||||||||
Capital Ventures |
c/o Heights Capital Management, Inc. | $ | 40,000,000 | $ | 40,000,000 | N/A | ||||||
International |
000 Xxxxxxxxxx Xxxxxx, Xxxxx 0000 | |||||||||||
| Xxx Xxxxxxxxx, XX 00000 | ||||||||||||
| Attention: Xxxxxx Xxxxxxxx | ||||||||||||
| Facsimile: (000) 000-0000 | ||||||||||||
| Telephone: (000) 000-0000 | ||||||||||||
| Residence: Cayman Islands | ||||||||||||
Whitebox Convertible |
c/o Whitebox Advisors, LLC | $ | 20,000,000 | $ | 20,000,000 | N/A | ||||||
Arbitrage Partners, LP |
0000 Xxxxxxxxx Xxxx, Xxxxx 000 | |||||||||||
| Xxxxxxxxxxx, XX 00000 | ||||||||||||
| Attention: Xxxxxxxx Xxxx | ||||||||||||
| Telephone: (000) 000-0000 | ||||||||||||
| Facsimile: (000) 000-0000 | ||||||||||||
| Residence: British Virgin Islands | ||||||||||||
Whitebox Intermarket |
c/o Whitebox Advisors, LLC | $ | 4,000,000 | $ | 4,000,000 | N/A | ||||||
Partners, LP |
0000 Xxxxxxxxx Xxxx, Xxxxx 000 | |||||||||||
| Xxxxxxxxxxx, XX 00000 | ||||||||||||
| Attention: Xxxxxxxx Xxxx | ||||||||||||
| Telephone: (000) 000-0000 | ||||||||||||
| Facsimile: (000) 000-0000 | ||||||||||||
| Residence: British Virgin Islands | ||||||||||||
Guggenheim Portfolio |
c/o Whitebox Advisors, LLC | $ | 2,000,000 | $ | 2,000,000 | N/A | ||||||
Company XXXI, LLC |
0000 Xxxxxxxxx Xxxx, Xxxxx 000 | |||||||||||
| Xxxxxxxxxxx, XX 00000 | ||||||||||||
| Attention: Xxxxxxxx Xxxx | ||||||||||||
| Telephone: (000) 000-0000 | ||||||||||||
| Facsimile: (000) 000-0000 | ||||||||||||
| Residence: Delaware | ||||||||||||
[Signature Page to Securities Purchase Agreement]
| (1) | (2) | (3) | (4) | (5) | ||||||||
| Address and | Aggregate Principal Amount | Legal Representative’s | ||||||||||
| Purchaser | Facsimile Number | of Debentures | Purchase Price | Address and Facsimile Number | ||||||||
Pandora Select Partners, LP |
c/o Whitebox Advisors, LLC | $ | 2,000,000 | $ | 2,000,000 | N/A | ||||||
| 0000 Xxxxxxxxx Xxxx, Xxxxx 000 | ||||||||||||
| Xxxxxxxxxxx, XX 00000 | ||||||||||||
| Attention: Xxxxxxxx Xxxx | ||||||||||||
| Telephone: (000) 000-0000 | ||||||||||||
| Facsimile: (000) 000-0000 | ||||||||||||
| Residence: British Virgin Islands | ||||||||||||
Whitebox Special |
c/o Whitebox Advisors, LLC | $ | 2,000,000 | $ | 2,000,000 | N/A | ||||||
Opportunities |
0000 Xxxxxxxxx Xxxx, Xxxxx 000 | |||||||||||
Partners,
Series B, LP |
Xxxxxxxxxxx, XX 00000 | |||||||||||
| Attention: Xxxxxxxx Xxxx | ||||||||||||
| Telephone: (000) 000-0000 | ||||||||||||
| Facsimile: (000) 000-0000 | ||||||||||||
| Residence: British Virgin Islands | ||||||||||||
Radcliffe SPC, Ltd. for and on |
c/o RG Capital Management, LP | $ | 30,000,000 | $ | 30,000,000 | N/A | ||||||
behalf of the Class A |
0 Xxxx Xxxxx-Xxxx, Xxxxx 000 | |||||||||||
Segregated Portfolio |
Xxxx Xxxxxx, XX 00000 | |||||||||||
| Attention: Xxxxxx X. Xxxxxxxxxx | ||||||||||||
| Xxxxx Xxxxxx | ||||||||||||
| Facsimile: (000) 000-0000 | ||||||||||||
| Telephone: (000) 000-0000 | ||||||||||||
| Residence: Cayman Islands | ||||||||||||
UBS X’Xxxxxx LLC fbo X’Xxxxxx Global Convertible Arbitrage Master Limited |
c/o UBS X’Xxxxxx LLC | $ | 16,200,000 | $ | 16,200,000 | N/A | ||||||
| Xxx Xxxxx Xxxxxx Xx., 00xx Xxxxx | ||||||||||||
| Xxxxxxx, XX 00000 | ||||||||||||
| Attention: Xxxxxx Xxxxxx | ||||||||||||
| Telephone: (000) 000-0000 | ||||||||||||
| Facsimile: (000) 000-0000 | ||||||||||||
| Residence: Cayman Islands | ||||||||||||
[Signature Page to Securities Purchase Agreement]
| (1) | (2) | (3) | (4) | (5) | ||||||||
| Address and | Aggregate Principal Amount | Legal Representative’s | ||||||||||
| Purchaser | Facsimile Number | of Debentures | Purchase Price | Address and Facsimile Number | ||||||||
UBS
X’Xxxxxx LLC fbo X’Xxxxxx Global Convertible Arbitrage II Master Limited |
c/o UBS X’Xxxxxx LLC Xxx Xxxxx Xxxxxx Xx., 00xx Xxxxx Xxxxxxx, XX 00000 Attention: Xxxxxx Xxxxxx Telephone: (000) 000-0000 Facsimile: (000) 000-0000 Residence: Cayman Islands |
$ | 1,800,000 | $ | 1,800,000 | N/A | ||||||
UBS
X’Xxxxxx LLC fbo X’Xxxxxx Pipes Corporate Strategies Master Limited |
c/o UBS X’Xxxxxx LLC Xxx Xxxxx Xxxxxx Xx. 00xx Xxxxx Xxxxxxx, XX 00000 Attention: Xxxxxx Xxxxxx Telephone: (000) 000-0000 Facsimile: (000) 000-0000 Residence: Cayman Islands |
$ | 2,000,000 | $ | 2,000,000 | N/A | ||||||
Liberty Harbor Master Fund I, L.P. |
c/o Liberty Harbor I GP, LLC 0 Xxx Xxxx Xxxxx Xxx Xxxx, XX 00000 |
$ | 15,000,000 | $ | 15,000,000 | N/A | ||||||
| Attention: Xxxxxxx XxXxxxxx | ||||||||||||
| Facsimile: 000-000-0000 | ||||||||||||
| Telephone: 000-000-0000 | ||||||||||||
| Residence: Cayman Islands | ||||||||||||
Interlachen
Convertible Investments Ltd. |
c/o Interlachen Capital
Group LP 000 Xxxxxxxx Xxxx, Xxxxx 0000 Xxxxxxxxxxx, XX 00000-0000 Attention: Xxxxx X. Xxxxxxx Facsimile: (000) 000-0000 Telephone: (000) 000-0000 Residence: Cayman Islands |
$ | 15,000,000 | $ | 15,000,000 | N/A | ||||||
[Signature Page to Securities Purchase Agreement]
| (1) | (2) | (3) | (4) | (5) | ||||||||
| Address and | Aggregate Principal Amount | Legal Representative’s | ||||||||||
| Purchaser | Facsimile Number | of Debentures | Purchase Price | Address and Facsimile Number | ||||||||
Aristeia International Limited |
x/x Xxxxxxxx Xxxxxxx, X.X.X. | $ | 12,242,000 | $ | 12,242,000 | N/A | ||||||
| 000 Xxxxxxx Xxxxxx, 0xx
Xxxxx Xxx Xxxx, XX 00000 |
||||||||||||
| Attention: Xxxxxx Xxxx | ||||||||||||
| Facsimile: (000) 000-0000 | ||||||||||||
| Telephone: (000) 000-0000 | ||||||||||||
| Residence: Cayman Islands | ||||||||||||
Aristeia Partners, L.P. |
c/o Aristeia Advisors, L.L.C. | $ | 1,558,000 | $ | 1,558,000 | N/A | ||||||
| 000 Xxxxxxx Xxxxxx, 0xx
Xxxxx Xxx Xxxx, XX 00000 |
||||||||||||
| Attention: Xxxxxx Xxxx | ||||||||||||
| Facsimile: (000) 000-0000 | ||||||||||||
| Telephone: (000) 000-0000 | ||||||||||||
| Residence: Delaware | ||||||||||||
Aristeia
Special Investments Master, L.P. |
x/x Xxxxxxxx Xxxxxxx, X.X.X. 000
Xxxxxxx Xxxxxx, 0xx
Xxxxx Xxx Xxxx, XX 00000 |
$ | 1,200,000 | $ | 1,200,000 | N/A | ||||||
| Attention: Xxxxxx Xxxx | ||||||||||||
| Facsimile: (000) 000-0000 | ||||||||||||
| Telephone: (000) 000-0000 | ||||||||||||
| Residence: Cayman Islands | ||||||||||||
TOTAL |
$ | 300,000,000.00 | $ | 300,000,000.00 | ||||||||
[Signature Page to Securities Purchase Agreement]
EXHIBITS
Exhibit A
|
Indenture | |
Exhibit B
|
Registration Rights Agreement | |
Exhibit C
|
Form of Lock-Up Agreement | |
Exhibit D
|
Form of Secretary’s Certificate | |
Exhibit E
|
Form of Officer’s Certificate |
