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EXHIBIT 4.2
REGISTRATION RIGHTS AGREEMENT
This Registration Rights Agreement is dated as of _________, 2001 by
and between Torch Offshore, Inc., a Delaware corporation (together with its
successors and assigns, the "Company"), Friends of Lime Rock LP, a Delaware
limited partnership ("Friends of Lime Rock"), and Riverside Investments LLC, a
Delaware limited liability company ("Riverside").
1. Background. The Company has agreed to issue to Friends of Lime Rock
and Riverside certain shares of the Company's common stock, par value $.01 per
share (the "Common Stock"), pursuant to the transactions contemplated by the
Contribution Agreement dated as of __________ ____, 2001 among the Company,
Friends of Lime Rock, Riverside and Torch, Inc. (the "Contribution Agreement").
2. Registration under Securities Act, etc.
2.1. Registration on Request.
(a) Concurrently with or from time to time after the date hereof,
upon the written request of any Holder of a majority of the Registrable
Securities (a "Requesting Holder"), requesting that the Company effect
the registration under the Securities Act of all or a portion of such
Requesting Holder's Registrable Securities and specifying the intended
method of disposition thereof and whether or not such requested
registration is to be an underwritten offering, subject to the
limitations set forth in subsection (e) of this Section 2.1, the
Company will use its best efforts to effect the registration under the
Securities Act of the Registrable Securities which the Company has been
so requested to register by the Requesting Holder and any other Holder
joining in such request (which request shall specify the intended
method of disposition of such Registrable Securities), to the extent
requisite to permit the disposition (in accordance with the intended
methods thereof as aforesaid) of the Registrable Securities so to be
registered (a "Demand Registration").
(b) Registration of Other Securities. Whenever the Company shall
effect a Demand Registration pursuant to this Section 2.1 in connection
with an underwritten offering, no securities other than Registrable
Securities shall be included among the securities covered by such
registration unless (i) the managing underwriter of such offering shall
have advised the Requesting Holder in writing that the inclusion of
such other securities would not adversely affect such offering or (ii)
the Requesting Holder shall have consented in writing to the inclusion
of such other securities.
(c) Registration Statement Form. A Demand Registration under this
Section 2.1 shall be on such appropriate registration form of the
Commission (i) as shall be selected by the Company and as shall be
reasonably acceptable to the Requesting Holder, and (ii) as shall
permit the disposition of such Registrable Securities in accordance
with the intended method or methods of disposition specified in the
request for such
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registration. The Company agrees to include in any such registration
statement all information which the Requesting Holder shall reasonably
request.
(d) Expenses. The Company will pay all Registration Expenses in
connection with any Demand Registration requested pursuant to this
Section 2.1. Selling Expenses in connection with this Section 2.1 shall
be incurred by the participating Holders.
(e) Limitations on Requested Registrations. The Company's
obligation to take or continue any action to effect a Demand
Registration under this Section 2.1 shall be subject to the following:
(i) The Company shall not be required to effect more than
three Demand Registrations pursuant to this Section 2.1.
(ii) The Company shall not be required to effect a Demand
Registration pursuant to this Section 2.1 unless the Requesting
Holder (together with any other Holder joining in such request)
has requested the registration of a number of Registrable
Securities the gross sale proceeds of which are reasonably
expected to be at least $5 million.
(iii) The Company shall not be required to effect a Demand
Registration pursuant to this Section 2.1 during the period of any
lock-up agreement entered into pursuant to Section 2.4(c).
(iv) The Company shall not be required to effect a Demand
Registration pursuant to this Section 2.1 after the expiration of
10 years from the date hereof.
(v) The Company shall not be obligated to effect a Demand
Registration within six months after the effective date of a
previous Demand Registration.
(vi) The Company shall not be obligated to effect a Demand
Registration if the Company shall furnish to the Requesting Holder
a certificate signed by the Company's Chairman of the Board
stating that in the good faith judgment of the Board of Directors
of the Company, it would be materially harmful to the economic
prospects of the Company for such Demand Registration to be
effected at such time, in which event the Company shall have the
right to defer such filing for a period of not more than 45 days
after receipt of the initial request for the Demand Registration.
(f) Selection of Underwriters. If a Demand Registration pursuant
to this Section 2.1 involves an underwritten offering, the underwriter
or underwriters thereof shall be selected by the Company, with the
reasonable approval of the Requesting Holder.
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2.2. Incidental Registration.
(a) Right to Include Registrable Securities. If the Company at any
time proposes to register any of its securities under the Securities
Act (other than (i) in connection with a registration statement on Form
S-8 or Form S-4 or any similar successor form and the registration form
to be used may be used for the registration of Registrable Securities,
or (ii) pursuant to Section 2.1) (an "Incidental Registration"),
whether or not for sale for its own account, it will each such time
give prompt written notice to the Holders of its intention to do so and
of the Holders' rights under this Section 2.2. Upon the written request
of the any Holder made within ten (10) days after the receipt of any
such notice (which request shall specify the Registrable Securities
intended to be disposed of and the intended method of disposition
thereof), the Company will use its best efforts to effect the
registration under the Securities Act of all Registrable Securities
that the Company has been so requested to register, to the extent
requisite to permit the disposition (in accordance with the intended
methods thereof as aforesaid) of the Registrable Securities so to be
registered, provided that if, at any time after giving written notice
of its intention to register any securities and prior to the effective
date of the registration statement filed in connection with such
registration, the Company shall determine for any reason not to
register or to delay registration of such securities, the Company may,
at its election, give written notice of such determination to the
Holders participating in such registration and, thereupon, (i) in the
case of a determination not to register, shall be relieved of its
obligation to register any Registrable Securities in connection with
such registration (but not from its obligation to pay the Registration
Expenses in connection therewith), without prejudice, however, to the
rights of the Holders to request that such registration be effected as
a Demand Registration under Section 2.1, and (ii) in the case of a
determination to delay registering, shall be permitted to delay
registering any Registrable Securities, for the same period as the
delay in registering such other securities. No registration effected
under this Section 2.2 shall be deemed to have been effected pursuant
to Section 2.1 or shall relieve the Company of its obligation to effect
any registration upon request under Section 2.1. The Company will pay
all Registration Expenses in connection with each registration of
Registrable Securities requested pursuant to this Section 2.2 and any
Selling Expenses shall be incurred by the participating Holders.
(b) Priority in Incidental Registrations.
(i) If (A) a registration pursuant to this Section 2.2
involves an underwritten offering of the securities so being
registered for sale for the account of a stockholder (other than
the Holders) exercising a demand registration right pursuant to
another registration rights agreement to be distributed by or
through one or more underwriters of recognized standing under
underwriting terms appropriate for such a transaction, and (B) the
managing underwriter of such underwritten offering informs the
Company and the Holders in writing of its opinion that the number
of securities requested to be included in such registration will
adversely affect the success of such offering, then the Company
will include in such registration, to the extent of the number
that the Company is so advised can be sold in (or during the time
of) such offering: first, such securities proposed
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by the stockholder exercising the demand registration right to be
sold for its account; second, such securities requested to be
included pursuant to incidental registration rights in such
registration by the holder or holders, as the case may be,
including the Holders, pro rata on the basis of the number of such
securities so proposed to be sold by all such security holders and
so requested to be included; and third, such securities proposed
by the Company to be sold for its own account.
(ii) If (A) a registration pursuant to this Section 2.2
involves an underwritten offering of the securities so being
registered for sale for the account of the Company, to be
distributed by or through one or more underwriters of recognized
standing under underwriting terms appropriate for such a
transaction, and (B) the managing underwriter of such underwritten
offering shall inform the Company and the Holders in writing of
its opinion that the number of securities requested to be included
in such registration will adversely affect the success of such
offering, then the Company will include in such registration, to
the extent of the number that the Company is so advised can be
sold in (or during the time of) such offering: first, securities
proposed by the Company to be sold for its own account; and
second, such securities requested to be included pursuant to
incidental registration rights in such registration by the holder
or holders, as the case may be, including the Holders, pro rata on
the basis of the number of such securities so proposed to be sold
by all such security holders and so requested to be included.
2.3. Registration Procedures. If and whenever the Company is required
to use its best efforts to effect the registration of any Registrable Securities
under the Securities Act as provided in Sections 2.1 and 2.2, the Company will
as expeditiously as possible:
(a) prepare and file with the Commission the requisite
registration statement to effect such registration and thereafter use
its best efforts to cause such registration statement to become
effective, provided that the Company may discontinue any registration
of its securities that are not Registrable Securities (and, under the
circumstances specified in Section 2.2(a), its securities that are
Registrable Securities) at any time prior to the effective date of the
registration statement relating thereto;
(b) prepare and file with the Commission such amendments and
supplements to such registration statement and the prospectus used in
connection therewith as may be necessary to keep such registration
statement effective and to comply with the provisions of the Securities
Act with respect to the disposition of all securities covered by such
registration statement until the earlier of (i) 180 days following the
effectiveness of such registration statement or (ii) such time as all
of such securities have been disposed of in accordance with the
intended methods of disposition by the seller or sellers thereof set
forth in such registration statement;
(c) furnish to the Holders such number of conformed copies of such
registration statement and of each such amendment and supplement
thereto (in each case including all exhibits), such number of copies of
the prospectus contained in such
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registration statement (including each preliminary prospectus and any
summary prospectus) and any other prospectus filed under Rule 424 under
the Securities Act, in conformity with the requirements of the
Securities Act, and such other documents, as the Holders may reasonably
request;
(d) use its best efforts to register or qualify all Registrable
Securities and other securities covered by such registration statement
under such other securities or blue sky laws of such jurisdictions as
the Holders shall reasonably request, to keep such registration or
qualification in effect for so long as such registration statement
remains in effect, and take any other action that may be reasonably
necessary or advisable to enable the Holders to consummate the
disposition in such jurisdictions of the securities owned by it, except
that the Company shall not for any such purpose be required to qualify
generally to do business as a foreign corporation in any jurisdiction
wherein it would not but for the requirements of this subdivision (d)
be obligated to be so qualified, to subject itself to taxation in any
such jurisdiction or to consent to general service of process in any
such jurisdiction;
(e) use its best efforts to cause all Registrable Securities
covered by such registration statement to be registered with or
approved by such other governmental agencies or authorities as may be
necessary to enable the seller or sellers thereof to consummate the
disposition of such Registrable Securities;
(f) in an underwritten offering, furnish to the Holders a signed
counterpart, addressed to such seller (and underwriters, if any) of:
(i) an opinion of counsel for the Company, dated the effective
date of such registration statement (and, if such registration
includes an underwritten public offering, dated the date of the
closing under the underwriting agreement), reasonably satisfactory
in form and substance to such seller, and
(ii) a "comfort" letter, dated the effective date of such
registration statement (and, if such registration includes an
underwritten public offering, dated the date of the closing under
the underwriting agreement), signed by the independent public
accountants who have certified the Company's financial statements
included in such registration statement,
covering substantially the same matters with respect to such
registration statement (and the prospectus included therein) and, in
the case of the accountants' letter, with respect to events subsequent
to the date of such financial statements, as are customarily covered in
opinions of issuer's counsel and in accountants' letters delivered to
the underwriters in underwritten public offerings of securities and, in
the case of the accountants' letter, such other financial matters, and,
in the case of the legal opinion, such other legal matters, as such
seller may reasonably request;
(g) notify the Holders, at any time when a prospectus relating
thereto is required to be delivered under the Securities Act, upon
discovery that, or upon the happening of any event as a result of
which, the prospectus included in such registration
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statement, as then in effect, includes an untrue statement of a
material fact or omits to state any material fact required to be stated
therein or necessary to make the statements therein not misleading in
the light of the circumstances under which they were made, and at the
request of the Holders promptly prepare and furnish to the Holders a
reasonable number of copies of a supplement to or an amendment of such
prospectus as may be necessary so that, as thereafter delivered to the
purchasers of such securities, such prospectus shall not include an
untrue statement of a material fact or omit to state a material fact
required to be stated therein or necessary to make the statements
therein not misleading in the light of the circumstances under which
they were made;
(h) otherwise use its best efforts to comply with all applicable
rules and regulations of the Commission, and make available to its
security holders, as soon as reasonably practicable, an earnings
statement covering the period of at least twelve months, but not more
than eighteen months, beginning with the first full calendar month
after the effective date of such registration statement, which earnings
statement shall satisfy the provisions of Section 11(a) of the
Securities Act;
(i) furnish to the Holders at least five (5) business days prior
to the filing thereof a copy of any amendment or supplement to such
registration statement or prospectus and shall not file any thereof to
which the Holders shall have reasonably objected on the grounds that
such amendment or supplement does not comply in all material respects
with the requirements of the Securities Act or of the rules or
regulations thereunder;
(j) provide and cause to be maintained a transfer agent and
registrar for all Registrable Securities covered by such registration
statement from and after a date not later than the effective date of
such registration statement;
(k) use its best efforts to list all Registrable Securities
covered by such registration statement on any securities exchange or
automated quotation system on which any of the Registrable Securities
is then listed; and
(l) (enter into such agreements and take such other actions as the
Holders shall reasonably request in order to expedite or facilitate the
disposition of such Registrable Securities.
The Company may require the Holders participating in a registration to furnish
the Company such information regarding such Holder and the distribution of such
securities as the Company may from time to time reasonably request in writing.
Each Holder agrees that upon receipt of any notice from the Company of
the happening of any event of the kind described in subdivision (g) of this
Section 2.3, the Holder will forthwith discontinue its disposition of
Registrable Securities pursuant to the registration statement relating to such
Registrable Securities until the Holder's receipt of the copies of the
supplemented or amended prospectus contemplated by subdivision (g) of this
Section 2.3 and, if so directed by the Company, will deliver to the Company (at
the Company's expense) all copies, other than
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permanent file copies, then in the Holder's possession of the prospectus
relating to such Registrable Securities current at the time of receipt of such
notice.
2.4. Underwritten Offerings; Lockup Agreements.
(a) Requested Underwritten Offerings. If requested by the
underwriters for any underwritten offering by a Holder pursuant to a
Demand Registration requested under Section 2.1, the Company will enter
into an underwriting agreement with such underwriters for such
offering, such agreement to be reasonably satisfactory in substance and
form to the Company, the Holder and the underwriters and to contain
such representations and warranties by the Company and such other terms
as are generally prevailing in agreements of this type, including,
without limitation, indemnities to the effect and to the extent
provided in Section 2.6 and customary contribution provisions, and a
customary "lock-up" agreement not to sell or otherwise dispose of
Common Stock or securities exercisable, exchangeable or convertible
therefore or derivatives thereof for up to 180 days from the date of
any prospectus used in such an offering, on the terms and to the extent
reasonably requested by the underwriters with respect to such offering.
The Holder shall be a party to such underwriting agreement and agrees
to (a) sell its securities on the basis provided in any underwriting
agreements and (b) complete and execute all customary questionnaires,
underwriting agreements and other documents reasonably required under
the terms of such underwriting agreements. The Holders shall not be
required to make any representations or warranties to the Company or
the underwriters other than representations, warranties regarding the
Holders, its Registrable Securities and its intended method of
distribution and any other representation required by law.
(b) Incidental Underwritten Offerings. If the Company at any time
proposes to register any of its securities under the Securities Act
whether or not for sale for its own account as contemplated by Section
2.2 and such securities are to be distributed by or through one or more
underwriters, the Company will, if requested by the Holders as provided
in Section 2.2 and subject to the provisions of Section 2.2(b), arrange
for such underwriters to include all the Registrable Securities to be
offered and sold by the Holders among the securities to be distributed
by such underwriters. The participating Holders shall be a party to the
underwriting agreement between the Company and such underwriters and
agrees to (a) sell its securities on the basis provided in any
underwriting agreements and (b) complete and execute all customary
questionnaires, underwriting agreements and other documents reasonably
required under the terms of such underwriting agreements. The Holders
shall not be required to make any representations or warranties to the
Company or the underwriters other than representations, warranties
regarding the Holders, its Registrable Securities and its intended
method of distribution and any other representation required by law.
(c) Lockup by Holders. Each holder will, in connection with the
Company's initial public offering of its Common Stock, agree to a
customary lock-up agreement with respect to sales by it of Registrable
Securities for up to 180 days following the pricing of such an
offering, if and to the same extent as shall be agreed to by at least a
majority of the other stockholders of the Company.
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2.5. Preparation; Reasonable Investigation. In connection with the
preparation and filing of each registration statement under the Securities Act
pursuant to this Agreement, the Company will give the Holders, and their counsel
and accountants, the opportunity to participate in the preparation of such
registration statement, each prospectus included therein or filed with the
Commission, and each amendment thereof or supplement thereto, and will give it
such access to its books and records and such opportunities to discuss the
business of the Company with its officers and the independent public accountants
who have certified its financial statements as shall be necessary, in the
opinion of the Holders' counsel, to conduct a reasonable investigation within
the meaning of the Securities Act.
2.6. Indemnification.
(a) Indemnification by the Company. In the event of any
registration of any securities of the Company under the Securities Act,
the Company will, and hereby does, in the case of any registration
statement filed pursuant to Section 2.1 or 2.2, indemnify and hold
harmless the Holders, its directors and officers, and each other
Person, if any, who controls any Holder within the meaning of the
Securities Act against any losses, claims, damages or liabilities,
joint or several, to which the Holders or any such director or officer
or controlling person may become subject under the Securities Act or
otherwise, insofar as such losses, claims, damages or liabilities (or
actions or proceedings, whether commenced or threatened, in respect
thereof) arise out of or are based upon any untrue statement or alleged
untrue statement of any material fact contained in any registration
statement under which such securities were registered under the
Securities Act, any preliminary prospectus, final prospectus or summary
prospectus contained therein, or any amendment or supplement thereto,
or any omission or alleged omission to state therein a material fact
required to be stated therein or necessary to make the statements
therein not misleading, and the Company will reimburse the Holders and
each such director, officer, and controlling person for any legal or
any other expenses reasonably incurred by them in connection with
investigating or defending any such loss, claim, liability, action or
proceeding; provided that the Company shall not be liable in any such
case to the extent that any such loss, claim, damage, liability (or
action or proceeding in respect thereof) or expense arises out of or is
based upon an untrue statement or alleged untrue statement or omission
or alleged omission made in such registration statement, any such
preliminary prospectus, final prospectus, summary prospectus, amendment
or supplement in reliance upon and in conformity with written
information furnished to the Company by a Holder specifically stating
that it is for use in the preparation thereof. Such indemnity shall
remain in full force and effect regardless of any investigation made by
or on behalf of any Holder or any such director, officer, underwriter
or controlling person and shall survive the transfer of such securities
by such Holder.
(b) Indemnification by the Holders. The Company may require, as a
condition to including any Registrable Securities in any registration
statement filed pursuant to Section 2.6, that the Company shall have
received an undertaking satisfactory to it from each participating
Holder, to indemnify and hold harmless (in the same manner and to the
same extent as set forth in subdivision (a) of this Section 2.6) the
Company, each director of the Company, each officer of the Company and
each other Person, if any,
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who controls the Company within the meaning of the Securities Act, with
respect to any statement or alleged statement in or omission or alleged
omission from such registration statement, any preliminary prospectus,
final prospectus or summary prospectus contained therein, or any
amendment or supplement thereto, if such statement or alleged statement
or omission or alleged omission was made in reliance upon and in
conformity with written information furnished to the Company by the
Holder specifically stating that it is for use in the preparation of
such registration statement, preliminary prospectus, final prospectus,
summary prospectus, amendment or supplement. Such indemnity shall
remain in full force and effect, regardless of any investigation made
by or on behalf of the Company or any such director, officer or
controlling Person and shall survive the transfer of such securities by
any Holder.
(c) Notices of Claims, etc. Promptly after receipt by an
indemnified party of notice of the commencement of any action or
proceeding involving a claim referred to in the preceding subdivisions
of this Section 2.6, such indemnified party will, if a claim in respect
thereof is to be made against an indemnifying party, give written
notice to the latter of the commencement of such action, provided that
the failure of any indemnified party to give notice as provided herein
shall not relieve the indemnifying party of its obligations under the
preceding subdivisions of this Section 2.6, except to the extent that
the indemnifying party is actually prejudiced by such failure to give
notice. In case any such action is brought against an indemnified
party, unless in such indemnified party's reasonable judgment a
conflict of interest between such indemnified and indemnifying parties
may exist in respect of such claim, the indemnifying party shall be
entitled to participate in and to assume the defense thereof, jointly
with any other indemnifying party similarly notified to the extent that
it may wish, with counsel reasonably satisfactory to such indemnified
party, and after notice from the indemnifying party to such indemnified
party of its election so to assume the defense thereof, the
indemnifying party shall not be liable to such indemnified party for
any legal or other expenses subsequently incurred by the latter in
connection with the defense thereof other than reasonable costs of
investigation. No indemnifying party shall, without the consent of the
indemnified party, consent to entry of any judgment or enter into any
settlement that does not include as an unconditional term thereof the
giving by the claimant or plaintiff to such indemnified party of a
release from all liability in respect to such claim or litigation.
(d) Indemnification Payments. The indemnification required by this
Section 2.6 shall be made by periodic payments of the amount thereof
during the course of the investigation or defense, as and when bills
are received or expense, loss, damage or liability is incurred.
3. Definitions. As used herein, unless the context otherwise requires,
the following terms have the following respective meanings:
COMMISSION: The Securities and Exchange Commission or any other
federal agency at the time administering the Securities Act.
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COMPANY: As defined in the introductory paragraph of this
Agreement. For purposes of this Agreement, all references to the
Company shall be deemed to include any successor entity or transferee.
EXCHANGE ACT: The Securities Exchange Act of 1934, or any similar
federal statute, and the rules and regulations of the Commission
thereunder, all as the same shall be in effect from time to time.
Reference to a particular section of the Exchange Act shall include a
reference to the comparable section, if any, of any other similar
federal statute.
FRIENDS OF LIME ROCK: As defined in the introductory paragraph of
this Agreement.
HOLDER: Friends of Lime Rock, Riverside and any Person to which
either of such Persons transfers Registrable Securities.
PERSON: A corporation, an association, a partnership, a business,
an individual, a governmental or political subdivision thereof or a
governmental agency.
REGISTRABLE SECURITIES: Any of the Company's Common Stock issued
to the Holders pursuant to the Contribution Agreement, and any
securities issued to issuable with respect to any such Common Stock by
way of distribution or in connection with any reorganization,
recapitalization, merger, consolidation or otherwise. As to any
particular Registrable Securities, once issued such securities shall
cease to be Registrable Securities when (a) a registration statement
with respect to the sale of such securities shall have become effective
under the Securities Act and such securities shall have been disposed
of in accordance with such registration statement, (b) they shall have
been distributed to the public pursuant to Rule 144 (or any successor
provision) under the Securities Act, (c) with respect to any Holder,
the Registrable Securities held by such Holder represent less than 1%
of the then issued and outstanding shares of Common Stock, such Holder
is not an "affiliate" of the Company, and such shares may be sold
freely by such Holder without restriction under Rule 144(k) (or any
successor provision), or (d) they shall have ceased to be outstanding.
REGISTRATION EXPENSES: All expenses incident to the Company's
performance of or compliance with Section 2.1 or 2.2, including,
without limitation, all salaries of Company personnel or general
overhead expenses of the Company, auditing fees, premiums or other
expenses relating to liability insurance required by underwriters of
the Company, or other expenses for the preparation of financial
statements, all registration, filing and National Association of
Securities Dealers fees, all fees and expenses of complying with
securities or blue sky laws, all word processing, duplicating and
printing expenses, messenger and delivery expenses, the fees and
disbursements of counsel for the Company and of its independent public
accountants, including the expenses of any special audits or "cold
comfort" letters required by or incident to such performance and
compliance, the reasonable fees and disbursements of not more than one
special counsel selected by the holders of a majority of the
Registrable Securities included in such
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registration, and any fees and disbursements of underwriters
customarily paid by issuers or sellers of securities, but excluding
Selling Expenses.
RIVERSIDE: As defined in the introductory paragraph of this
Agreement.
SECURITIES ACT: The Securities Act of 1933, or any similar federal
statute, and the rules and regulations of the Commission thereunder,
all as of the same shall be in effect from time to time. References to
a particular section of the Securities Act shall include a reference to
the comparable section, if any, of any other similar federal statute.
SELLING EXPENSES: Underwriting discounts and commissions and stock
transfer taxes relating to securities registered by the Holders.
4. Rule 144: The Company will file the reports required to be filed by
it under the Securities Act and the Exchange Act and the rules and regulations
adopted by the Commission thereunder and will take such further action as the
Holders may reasonably request, all to the extent required from time to time to
enable the Holders to sell Registrable Securities without registration under the
Securities Act within the limitation of the exemptions provided by (a) Rule 144
under the Securities Act, as such rule may be amended from time to time or (b)
any similar rule or regulation hereafter adopted by the Commission. Upon the
request of any Holder, the Company will deliver to such holder a written
statement as to whether it has complied with such requirements. After any sale
of Registrable Securities pursuant to this Section 4, the Company will, to the
extent allowed by law, cause any restrictive legends to be removed and any
transfer restrictions to be rescinded with respect to such Registrable
Securities.
5. Amendments and Waivers. This Agreement may be amended and the
Company may take any action herein prohibited or omit to perform any act herein
required to be performed by it, only if the Company shall have obtained the
written consent to such amendment, action or omission to act, of the Holders of
a majority of the Registrable Securities. The Holders of any Registrable
Securities at the time or thereafter outstanding shall be bound by any consent
authorized by this Section 5, whether or not such Registrable Securities shall
have been marked to indicate such consent.
6. Nominees for Beneficial Holders. In the event that any Registrable
Securities are held by a nominee for the beneficial owner thereof, the
beneficial owner thereof may, at its election, be treated as the holder of such
Registrable Securities for purposes of this Agreement. If the beneficial owner
of any Registrable Securities so elects, the Company may require assurances
reasonably satisfactory to it of such owner's beneficial ownership of such
Registrable Securities.
7. Notices. All communications provided for hereunder shall be sent by
first-class mail and (a) if addressed to Riverside or Friends of Lime Rock, at
Lime Rock Management, LP, 000 Xxxxxxxxx Xxxxxx, Xxxx. 2, 2nd Floor, Westport,
Connecticut 06880, Attn: Xxxx Xxxxxxxx, (b) if addressed to any other Holder, to
the address specified by such Holder upon its receipt of Registrable Securities,
or (c) if addressed to the Company, at _________________________ or at such
other address, or to the attention of such other officer, as the Company shall
have furnished to the Holders at the time outstanding; provided, however, that
any such
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communication to the Company may also, at the option of any Holder, be either
delivered to the Company at its address set forth above or to any officer of the
Company.
8. Assignment. This Agreement shall be binding upon and inure to the
benefit of and be enforceable by the parties hereto and their respective
successors and assigns. In addition, and whether or not any express assignment
shall have been made, the provisions of this Agreement that are for the benefit
of any Holder shall also be for the benefit of and enforceable by any subsequent
holder of any Registrable Securities, subject to the provisions respecting the
minimum numbers or percentages of shares of Registrable Securities required in
order to be entitled to certain rights, or take certain actions, contained
herein.
9. Descriptive Headings. The descriptive headings of the several
sections and paragraphs of this Agreement are inserted for reference only and
shall not limit or otherwise affect the meaning hereof.
10. Specific Performance. The parties hereto recognize and agree that
money damages may be insufficient to compensate the Holders for breaches by the
Company of the terms hereof and, consequently, that the equitable remedy of
specific performance of the terms hereof will be available in the event of any
such breach.
11. Governing Law. THIS AGREEMENT SHALL BE CONSTRUED AND ENFORCED IN
ACCORDANCE WITH, AND THE RIGHTS OF THE PARTIES SHALL BE GOVERNED BY, THE LAWS OF
THE STATE OF DELAWARE WITHOUT REGARD TO PRINCIPLES OF CONFLICTS OF LAWS.
12. Counterparts. This Agreement may be executed simultaneously in any
number of counterparts, each of which shall be deemed an original, but all such
counterparts shall together constitute one and the same instrument.
13. Other Agreements. For as long as there are any Registrable
Securities outstanding, the Company will not grant any registration rights more
favorable to the holder thereof than those granted to the Holders by this
Agreement, or that reduce or conflict with or are inconsistent with the rights
given to the Holders, in each case without the consent of the Holders of a
majority of the Registrable Securities.
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IN WITNESS WHEREOF, the parties have caused this Agreement to be
executed and delivered by their respective officers thereunto duly authorized as
of the date first above written.
COMPANY:
TORCH OFFSHORE, INC.
By:
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Name:
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Title:
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FRIENDS OF LIME ROCK LP
By: Lime Rock Partners, LLC
its general partner
By:
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Name:
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Title:
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RIVERSIDE INVESTORS LLC
By: The Beacon Group Investment Fund II,
its sole member
By: Beacon Energy Investors II, L.P.,
its general partner
By:
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Name:
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Title:
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