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REGISTRATION RIGHTS AGREEMENT
by and among
ARLINGTON TANKERS LTD.,
CM V-MAX I LIMITED,
CM V-XXX XX LIMITED,
OCEANSPIRIT LTD.,
OCEANSONG LTD.,
PANISLAND LTD.
AND PANOCEAN LTD.
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Dated as of [ ], 2004
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TABLE OF CONTENTS
1. Certain Definitions.................................................1
2. Demand Registrations................................................3
(a) Right to Request Registration................................3
(b) Number of Demand Registrations...............................3
(c) Priority on Demand Registrations.............................3
(d) Restrictions on Demand Registrations.........................4
(e) Selection of Underwriters....................................4
(f) Other Registration Rights....................................4
(g) Effective Period of Demand Registrations.....................5
3. Piggyback Registrations.............................................5
(a) Right to Piggyback...........................................5
(b) Priority on Primary Registrations............................5
(c) Priority on Secondary Registrations..........................6
(d) Selection of Underwriters....................................6
(e) Other Registrations..........................................6
4. Holdback Agreements.................................................6
5. Registration Procedures.............................................6
6. Registration Expenses..............................................11
7. Indemnification....................................................12
8. Participation in Underwritten Registrations........................14
9. Rule 144...........................................................14
10. Miscellaneous......................................................14
(a) Notices.....................................................14
(b) No Waivers..................................................15
(c) Expenses....................................................15
(d) Successors and Assigns......................................15
(e) Governing Law...............................................16
(f) Jurisdiction................................................16
(g) Waiver of Jury Trial........................................16
(h) Counterparts; Effectiveness.................................16
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(i) Entire Agreement............................................16
(j) Captions....................................................16
(k) Severability................................................16
(l) Amendments..................................................17
(m) Aggregation of Shares.......................................17
(n) Equitable Relief............................................17
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REGISTRATION RIGHTS AGREEMENT, dated as of [ ], 2004, by and among
Arlington Tankers Ltd., a Bermuda company (the "Company"), CM V-MAX I Limited, a
Bermuda company ("CM V-MAX I"), CM V-XXX XX Limited, a Bermuda company ("CM
V-XXX XX"), Oceanspirit Ltd., a Bermuda company ("Oceanspirit"), Oceansong Ltd.,
a Bermuda company ("Oceansong"), Panisland Ltd., a Bermuda company ("Panisland")
and Panocean Ltd., a Bermuda company ("Panocean") (each a "Shareholder" and
collectively, the "Shareholders").
In consideration of the mutual covenants and agreements herein
contained and other good and valid consideration, the receipt and sufficiency of
which are hereby acknowledged, the parties to this Agreement hereby agree as
follows:
1. CERTAIN DEFINITIONS.
In addition to the terms defined elsewhere in this Agreement, the
following terms shall have the following meanings:
"Affiliate" of any Person means any other Person which directly, or
indirectly through one or more intermediaries, controls, or is controlled by, or
is under common control with, such Person. The term "control" (including the
terms "controlling," "controlled by" and "under common control with") as used
with respect to any Person means the possession, direct or indirect, of the
power to direct or cause the direction of the management and policies of such
Person, whether through the ownership of voting securities, by contract or
otherwise.
"Agreement" means this Registration Rights Agreement, including all
amendments, modifications and supplements and any exhibits or schedules to any
of the foregoing, and shall refer to this Registration Rights Agreement as the
same may be in effect at the time such reference becomes operative.
"Common Shares" means common shares, par value $0.01 per share, of the
Company and any other shares into which such shares are converted pursuant to a
recapitalization or reorganization.
"Company" has the meaning set forth in the introductory paragraph.
"Demand Registration" has the meaning set forth in Section 2(a) hereof.
"Exchange Act" means the Securities Exchange Act of 1934, as amended.
"Governmental Entity" means any national, federal, state, municipal,
local, territorial, foreign or other government or any department, commission,
board, bureau, agency, regulatory authority or instrumentality thereof, or any
court, judicial, administrative or arbitral body or public or private tribunal.
"Holder" means any holder of record of Registrable Common Shares and
any transferees of such Registrable Common Shares from such Holders. For
purposes of this Agreement, the Company may deem and treat the registered holder
of Registrable
Common Shares as the Holder and absolute owner thereof, and the Company shall
not be affected by any notice to the contrary.
"Initiating Holders" has the meaning set forth in Section 2(a) hereof.
"IPO" means the sale in an underwritten initial public offering
registered under the Securities Act of Common Shares.
"Memoranda of Agreement" means the following memoranda of agreement,
each dated as of the date hereof, between: (i) Panocean and Compatriot Ltd., a
Bermuda company, for the purchase and sale of the Stena Compatriot, (ii)
Panisland and Companion Ltd., a Bermuda company, for the purchase and sale of
the Stena Companion, (iii) Oceansong and Consul Ltd., a Bermuda company, for the
purchase and sale of the Stena Consul, (iv) Oceanspirit and Concord Ltd., a
Bermuda company, for the purchase and sale of the Stena Concord, (v) CM V-Max I
and Vision Ltd., a Bermuda company, for the purchase and sale of the Stena
Vision and (vi) CM V-Xxx XX and Victory Ltd., a Bermuda company, for the
purchase and sale of the Stena Victory.
"Person" means any individual, sole proprietorship, partnership,
limited liability company, joint venture, trust, incorporated organization,
association, corporation, institution, public benefit corporation, Governmental
Entity or any other entity.
"Piggyback Registration" has the meaning set forth in Section 3(a)
hereof.
"Prospectus" means the prospectus or prospectuses included in any
Registration Statement, as amended or supplemented by any prospectus supplement
with respect to the terms of the offering of any portion of the Registrable
Common Shares covered by such Registration Statement and by all other amendments
and supplements to the prospectus, including post-effective amendments and all
material incorporated by reference in such prospectus or prospectuses.
"Registrable Common Shares" means the Common Shares delivered to the
Shareholders or affiliates of the Shareholders pursuant to the Memoranda of
Agreement; provided, however, Registrable Common Shares shall not include any
securities sold by a Person to the public either pursuant to a Registration
Statement or Rule 144.
"Registration Expenses" has the meaning set forth in Section 6(a)
hereof.
"Registration Statement" means any registration statement of the
Company which covers any of the Registrable Common Shares pursuant to the
provisions of this Agreement, including the Prospectus, amendments and
supplements to such Registration Statement, including post-effective amendments,
all exhibits and all materials incorporated by reference in such Registration
Statement.
"SEC" means the Securities and Exchange Commission.
"Securities Act" means the Securities Act of 1933, as amended.
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"Shareholders" has the meaning set forth in the introductory paragraph.
"Suspension Notice" has the meaning set forth in Section 5(f) hereof.
"underwritten registration or underwritten offering" means a
registration in which securities of the Company are sold to underwriters for
reoffering to the public.
"Withdrawn Demand Registration" has the meaning set forth in Section
2(g) hereof.
2. DEMAND REGISTRATIONS.
(a) Right to Request Registration. At any time 270 days following the
IPO, any Holder or Holders may request registration under the Securities Act
("Initiating Holders") of all or part of the Registrable Common Shares ("Demand
Registration"); provided, that each Demand Registration be at least equal to 10%
of the Company's outstanding common shares following the IPO.
Within 10 days after receipt of any such request for Demand
Registration, the Company shall give written notice of such request to all other
Holders of Registrable Common Shares and shall, subject to the provisions of
Section 2(d) hereof, include in such registration all such Registrable Common
Shares with respect to which the Company has received written requests for
inclusion therein within 15 days after the receipt of the Company's notice.
(b) Number of Demand Registrations. Subject to the provisions of
Section 2(a), the Initiating Holders of Registrable Common Shares shall
collectively be entitled to request an aggregate of three (3) Demand
Registrations. A registration shall not count as one of the permitted Demand
Registrations (i) until it has become effective, (ii) if the Initiating Holders
requesting such registration are not able to register at least 50% of the
Registrable Common Shares requested by such Initiating Holder to be included in
such registration or (iii) in the case of a Demand Registration that would be
the last permitted Demand Registration requested hereunder, if the Initiating
Holder requesting such registration is not able to register all of the
Registrable Common Shares requested to be included by such Initiating Holder in
such registration.
(c) Priority on Demand Registrations. Except as provided in Section
2(g), the Company shall not include in any Demand Registration any securities
which are not Registrable Common Shares without the written consent of the
Holders of a majority of the shares of Registrable Common Shares to be included
in such registration, or, if such Demand Registration is an underwritten
offering, without the written consent of the managing underwriters. If the
managing underwriters of the requested Demand Registration advise the Company in
writing that in their opinion the number of shares of Registrable Common Shares
proposed to be included in any such registration exceeds the number of
securities which can be sold in such offering and/or that the number of shares
of Registrable Common Shares proposed to be included in any such registration
would adversely affect the price per share of the Company's equity securities to
be sold in such offering, the Company shall include in such registration only
the number of shares of
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Registrable Common Shares which in the opinion of such managing underwriters can
be sold. If the number of shares which can be sold is less than the number of
shares of Registrable Common Shares proposed to be registered, the amount of
Registrable Common Shares to be so sold shall be allocated pro rata among the
Holders of Registrable Common Shares desiring to participate in such
registration on the basis of the amount of such Registrable Common Shares
initially proposed to be registered by such Holders. If the number of shares
which can be sold exceeds the number of shares of Registrable Common Shares
proposed to be sold, such excess shall be allocated pro rata among the other
holders of securities, if any, desiring to participate in such registration
based on the amount of such securities initially requested to be registered by
such holders or as such holders may otherwise agree.
(d) Restrictions on Demand Registrations. The Company shall not be
obligated to effect any Demand Registration within three months after the
effective date of a previous Demand Registration, or a previous registration
under which the Initiating Holders had piggyback rights pursuant to Section 3
hereof wherein the Initiating Holders were permitted to register, and actually
sold, at least 50% of the shares of Registrable Common Shares requested to be
included therein. The Company may postpone for up to ninety (90) days the filing
or the effectiveness of a Registration Statement for a Demand Registration if,
based on the good faith judgment of the Company's board of directors, such
postponement or withdrawal is necessary in order to avoid premature disclosure
of a matter the board has determined would not be in the best interest of the
Company to be disclosed at such time; provided, however, that in no event shall
the Company withdraw a Registration Statement after such Registration Statement
has been declared effective; and provided, further, however, that in the event
described above, the Initiating Holders requesting such Demand Registration
shall be entitled to withdraw such request and, if such request is withdrawn,
such Demand Registration shall not count as one of the permitted Demand
Registrations. The Company shall provide written notice to the Initiating
Holders requesting such Demand Registration of (x) any postponement or
withdrawal of the filing or effectiveness of a Registration Statement pursuant
to this Section 2(d), (y) the Company's decision to file or seek effectiveness
of such Registration Statement following such withdrawal or postponement and (z)
the effectiveness of such Registration Statement. The Company may defer the
filing of a particular Registration Statement pursuant to this Section 2(d) only
once during any twelve-month period.
(e) Selection of Underwriters. If any of the Registrable Common Shares
covered by a Demand Registration are to be sold in an underwritten offering, the
Initiating Holders shall have the right to select the managing underwriter(s) to
administer the offering subject to the approval of the Company, which will not
be unreasonably withheld.
(f) Other Registration Rights. The Company shall not grant to any Person
the right, other than as set forth herein, to request the Company to register
any securities of the Company except such rights as are not more favorable than
or inconsistent with the rights granted to the Holders herein. In the event the
Company grants rights which are more favorable, the Company will make such
provisions available to the Holders and will enter into any amendments necessary
to confer such rights on the Holders.
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(g) Effective Period of Demand Registrations. After any Demand Registration
filed pursuant to this Agreement has become effective, the Company shall use its
best efforts to keep such Demand Registration effective for a period equal to
180 days from the date on which the SEC declares such Demand Registration
effective (or if such Demand Registration is not effective during any period
within such 180 days, such 180-day period shall be extended by the number of
days during such period when such Demand Registration is not effective), or such
shorter period which shall terminate when all of the Registrable Common Shares
covered by such Demand Registration have been sold pursuant to such Demand
Registration. If the Company shall withdraw any Demand Registration pursuant to
Section 2(d) (a "Withdrawn Demand Registration"), the Initiating Holders of the
Registrable Common Shares remaining unsold and originally covered by such
Withdrawn Demand Registration shall be entitled to a replacement Demand
Registration which (subject to the provisions of this Section 2) the Company
shall use its best efforts to keep effective for a period commencing on the
effective date of such Demand Registration and ending on the earlier to occur of
the date (i) which is 180 days from the effective date of such Demand
Registration and (ii) on which all of the Registrable Common Shares covered by
such Demand Registration have been sold. Such additional Demand Registration
otherwise shall be subject to all of the provisions of this Agreement.
3. PIGGYBACK REGISTRATIONS.
(a) Right to Piggyback. If at any time following the IPO the Company
proposes to register any of its common equity securities under the Securities
Act (other than a registration statement on Form S-8 or on Form F-4 or any
similar successor forms thereto), whether for its own account or for the account
of one or more shareholders of the Company, and the registration form to be used
may be used for any registration of Registrable Common Shares (a "Piggyback
Registration"), the Company shall give prompt written notice (in any event
within 10 days after its receipt of notice of any exercise of other demand
registration rights) to all Holders of its intention to effect such a
registration and, subject to Sections 3(b) and 3(c), shall include in such
registration all Registrable Common Shares with respect to which the Company has
received written requests for inclusion therein within 15 days after the receipt
of the Company's notice. The Company may postpone or withdraw the filing or the
effectiveness of a Piggyback Registration at any time in its sole discretion.
(b) Priority on Primary Registrations. If a Piggyback Registration is an
underwritten primary registration on behalf of the Company, and the managing
underwriters advise the Company in writing that in their opinion the number of
securities requested to be included in such registration exceeds the number
which can be sold in such offering and/or that the number of shares of
Registrable Common Shares proposed to be included in any such registration would
adversely affect the price per share of the Company's equity securities to be
sold in such offering, the Company shall include in such registration (i) first,
the securities the Company proposes to sell, (ii) second, the Registrable Common
Shares requested to be included therein by the Holders, pro rata among the
Holders of such Registrable Common Shares on the basis of the number of shares
requested to be registered by such Holders, and (iii) third, other securities
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requested to be included in such registration pro rata among the holders of such
securities on the basis of the number of shares requested to be registered by
such holders or as such holders may otherwise agree.
(c) Priority on Secondary Registrations. If a Piggyback Registration is an
underwritten secondary registration on behalf of a holder of the Company's
securities other than Registrable Common Shares, and the managing underwriters
advise the Company in writing that in their opinion the number of securities
requested to be included in such registration exceeds the number which can be
sold in such offering and/or that the number of shares of Registrable Common
Shares proposed to be included in any such registration would adversely affect
the price per share of the Company's equity securities to be sold in such
offering, the Company shall include in such registration (i) first the
securities requested to be included therein by the holders requesting such
registration and the Registrable Common Shares requested to be included in such
registration, pro rata among the holders of such securities on the basis of the
number of shares requested to be registered by such holders, and (ii) second,
other securities requested to be included in such registration pro rata among
the holders of such securities on the basis of the number of shares requested to
be registered by such holders or as such holders may otherwise agree.
(d) Selection of Underwriters. If any Piggyback Registration is an
underwritten primary offering, the Company shall have the right to select the
managing underwriter or underwriters to administer any such offering.
(e) Other Registrations. If the Company has previously filed a Registration
Statement with respect to Registrable Common Shares, and if such previous
registration has not been withdrawn or abandoned, the Company shall not be
obligated to cause to become effective any other registration of any of its
securities under the Securities Act, whether on its own behalf or at the request
of any holder or holders of such securities, until a period of at least three
months has elapsed from the effective date of such previous registration.
4. HOLDBACK AGREEMENTS.
(a) The Company agrees not to effect any sale or distribution of any of its
equity securities during the 10 days prior to and during the 180 days beginning
on the effective date of any underwritten Demand Registration or any
underwritten Piggyback Registration (except as part of such underwritten
registration or pursuant to registrations on Form S-8 or F-4 or any successor
forms thereto) unless the underwriters managing the offering otherwise agree to
a shorter period.
5. REGISTRATION PROCEDURES.
(a) Whenever the Holders request that any Registrable Common Shares be
registered pursuant to this Agreement, the Company shall use its best efforts to
effect the registration and the sale of such Registrable Common Shares in
accordance with the
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intended methods of disposition thereof, and pursuant
thereto the Company shall as expeditiously as possible:
(i) prepare and file with the SEC a Registration Statement with
respect to such Registrable Common Shares and use its best efforts to
cause such Registration Statement to become effective as soon as
practicable thereafter; and before filing a Registration Statement or
Prospectus or any amendments or supplements thereto, furnish to the
Holders of Registrable Common Shares covered by such Registration
Statement and the underwriter or underwriters, if any, copies of all
such documents proposed to be filed, including documents incorporated
by reference in the Prospectus and, if requested by such Holders, the
exhibits incorporated by reference, and such Holders shall have the
opportunity to object to any information pertaining to such Holders
that is contained therein and the Company will make the corrections
reasonably requested by such Holders with respect to such information
prior to filing any Registration Statement or amendment thereto or any
Prospectus or any supplement thereto;
(ii) prepare and file with the SEC such amendments and
supplements to such Registration Statement and the Prospectus used in
connection therewith as may be necessary to keep such Registration
Statement effective for a period of not less than 180 days, in the
case of a Demand Registration or such shorter period as is necessary
to complete the distribution of the securities covered by such
Registration Statement and comply with the provisions of the
Securities Act with respect to the disposition of all securities
covered by such Registration Statement during such period in
accordance with the intended methods of disposition by the sellers
thereof set forth in such Registration Statement;
(iii) furnish to each seller of Registrable Common Shares such
number of copies of such Registration Statement, each amendment and
supplement thereto, the Prospectus included in such Registration
Statement (including each preliminary Prospectus) and such other
documents as such seller may reasonably request in order to facilitate
the disposition of the Registrable Common Shares owned by such seller;
(iv) use its best efforts to register or qualify such Registrable
Common Shares under such other securities or blue sky laws of such
jurisdictions as any seller reasonably requests and do any and all
other acts and things which may be reasonably necessary or advisable
to enable such seller to consummate the disposition in such
jurisdictions of the Registrable Common Shares owned by such seller
(provided, that the Company will not be required to (i) qualify
generally to do business in any jurisdiction where it would not
otherwise be required to qualify but for this subparagraph (d), (ii)
subject itself to taxation in any such jurisdiction or (iii) consent
to general service of process in any such jurisdiction);
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(v) notify each seller of such Registrable Common Shares, at any
time when a Prospectus relating thereto is required to be delivered
under the Securities Act, of the occurrence of any event as a result
of which the Prospectus included in such Registration Statement
contains an untrue statement of a material fact or omits any fact
necessary to make the statements therein not misleading, and, at the
request of any such seller, the Company shall prepare a supplement or
amendment to such Prospectus so that, as thereafter delivered to the
purchasers of such Registrable Common Shares, such Prospectus shall
not contain an untrue statement of a material fact or omit to state
any material fact necessary to make the statements therein not
misleading;
(vi) in the case of an underwritten offering, enter into such
customary agreements (including underwriting agreements in customary
form with customary indemnification provisions) and take all such
other actions as the Holders of a majority of the Registrable Common
Shares being sold or the underwriters reasonably request in order to
expedite or facilitate the disposition of such Registrable Common
Shares (including, without limitation, making members of senior
management of the Company available to participate in, and cause them
to cooperate with the underwriters in connection with, "road-show" and
other customary marketing activities (including one-on-one meetings
with prospective purchasers of the Registrable Common Shares)) and
cause to be delivered to the underwriters and the sellers, if any,
opinions of counsel to the Company in customary form, covering such
matters as are customarily covered by opinions for an underwritten
public offering as the underwriters may request and addressed to the
underwriters and the sellers;
(vii) make available, for inspection by any seller of Registrable
Common Shares, any underwriter participating in any disposition
pursuant to such Registration Statement, and any attorney, accountant
or other agent retained by any such seller or underwriter, all
financial and other records, pertinent corporate documents and
properties of the Company, and cause the Company's officers,
directors, employees and independent accountants to supply all
information reasonably requested by any such seller, underwriter,
attorney, accountant or agent in connection with such Registration
Statement;
(viii) use its best efforts to cause all such Registrable Common
Shares to be listed on each securities exchange on which securities of
the same class issued by the Company are then listed;
(ix) if requested, cause to be delivered, immediately prior to
the effectiveness of the Registration Statement (and, in the case of
an underwritten offering, at the time of delivery of any Registrable
Common Shares sold pursuant thereto), letters from the Company's
independent
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certified public accountants addressed to each selling Holder (unless
such selling Holder does not provide to such accountants the
appropriate representation letter required by rules governing the
accounting profession) and each underwriter, if any, stating that such
accountants are independent public accountants within the meaning of
the Securities Act and the applicable rules and regulations adopted by
the SEC thereunder, and otherwise in customary form and covering such
financial and accounting matters as are customarily covered by letters
of the independent certified public accountants delivered in
connection with primary or secondary underwritten public offerings, as
the case may be;
(x) make generally available to its shareholders a consolidated
earnings statement (which need not be audited) for the 12 months
beginning after the effective date of a Registration Statement as soon
as reasonably practicable after the end of such period, which earnings
statement shall satisfy the requirements of an earning statement under
Section 11(a) of the Securities Act; and
(xi) promptly notify each seller of Registrable Common Shares and
the underwriter or underwriters, if any:
(1) when the Registration Statement, any pre-effective
amendment, the Prospectus or any Prospectus supplement or
post-effective amendment to the Registration Statement has
been filed and, with respect to the Registration Statement
or any post-effective amendment, when the same has become
effective;
(2) of any comments of the SEC or of any written request by
the SEC for amendments or supplements to the Registration
Statement or Prospectus;
(3) of the notification to the Company by the SEC of its
initiation of any proceeding with respect to the issuance by
the SEC of any stop order suspending the effectiveness of
the Registration Statement; and
(4) of the receipt by the Company of any notification with
respect to the suspension of the qualification of any
Registrable Common Shares for sale under the applicable
securities or blue sky laws of any jurisdiction.
(b) The Company shall ensure that no Registration Statement (including any
amendments or supplements thereto and Prospectuses contained therein) shall
contain any 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 (except, with respect to any Holder, for an untrue statement or
alleged untrue statement of a material
9
fact or omission or alleged omission of a material fact made in reliance on and
in conformity with written information furnished to the Company by or on behalf
of such Holder specifically for use therein).
(c) The Company shall make available to each Holder whose Registrable
Common Shares are included in a Registration Statement (i) promptly after the
same is prepared and publicly distributed, filed with the SEC, or received by
the Company, one copy of each Registration Statement and any amendment thereto,
each preliminary Prospectus and Prospectus and each amendment or supplement
thereto, each letter written by or on behalf of the Company to the SEC or the
staff of the SEC (or other governmental agency or self-regulatory body or other
body having jurisdiction, including any domestic or foreign securities
exchange), and each item of correspondence from the SEC or the staff of the SEC
(or other governmental agency or self-regulatory body or other body having
jurisdiction, including any domestic or foreign securities exchange), in each
case relating to such Registration Statement (other than any portion thereof
which contains information for which the Company has sought confidential
treatment), and (ii) such number of copies of a Prospectus, including a
preliminary Prospectus, and all amendments and supplements thereto and such
other documents as such Holder may reasonably request in order to facilitate the
disposition of the Registrable Common Shares owned by such Holder. The Company
will promptly notify each Holder by facsimile of the effectiveness of each
Registration Statement or any post-effective amendment. The Company will
promptly respond to any and all comments received from the SEC, with a view
towards causing each Registration Statement or any amendment thereto to be
declared effective by the SEC as soon as practicable and shall file an
acceleration request as soon as practicable following the resolution or
clearance of all SEC comments or, if applicable, following notification by the
SEC that any such Registration Statement or any amendment thereto will not be
subject to review.
(d) At all times after the Company has filed a registration statement with
the SEC pursuant to the requirements of either the Securities Act or the
Exchange Act, the Company shall file all reports required to be filed by it
under the Securities Act and the Exchange Act and the rules and regulations
adopted by the SEC thereunder, and take such further action as any Holders may
reasonably request, all to the extent required to enable such Holders to be
eligible to sell Registrable Common Shares pursuant to Rule 144 (or any similar
rule then in effect).
(e) The Company may require each seller of Registrable Common Shares as to
which any registration is being effected to furnish to the Company any other
information regarding such seller and the distribution of such securities as the
Company may from time to time reasonably request in writing.
(f) Each seller of Registrable Common Shares agrees by having its shares
treated as Registrable Common Shares hereunder that, upon notice of the
happening of any event as a result of which the Prospectus included in such
Registration Statement contains an untrue statement of a material fact or omits
any material fact necessary to make the statements therein not misleading (a
"Suspension Notice"), such seller will forthwith discontinue disposition of
Registrable Common Shares for a reasonable length
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of time not to exceed 60 days until such seller is advised in writing by the
Company that the use of the Prospectus may be resumed and is furnished with a
supplemented or amended Prospectus as contemplated by Section 5(e) hereof, and,
if so directed by the Company, such seller will deliver to the Company (at the
Company's expense) all copies, other than permanent file copies then in such
seller's possession, of the Prospectus covering such Registrable Common Shares
current at the time of receipt of such notice; provided, however, that such
postponement of sales of Registrable Common Shares by the Holders shall not
exceed ninety (90) days in the aggregate in any one year. If the Company shall
give any notice to suspend the disposition of Registrable Common Shares pursuant
to a Prospectus, the Company shall extend the period of time during which the
Company is required to maintain the Registration Statement effective pursuant to
this Agreement by the number of days during the period from and including the
date of the giving of such notice to and including the date such seller either
is advised by the Company that the use of the Prospectus may be resumed or
receives the copies of the supplemented or amended Prospectus contemplated by
Section 5(e). In any event, the Company shall not be entitled to deliver more
than three (3) Suspension Notices in any one year.
6. REGISTRATION EXPENSES.
(a) All expenses incident to the Company's performance of or compliance
with this Agreement, including, without limitation, all registration and filing
fees, fees and expenses of compliance with securities or blue sky laws, listing
application fees, printing expenses, transfer agent's and registrar's fees, cost
of distributing Prospectuses in preliminary and final form as well as any
supplements thereto, and fees and disbursements of counsel for the Company and
all independent certified public accountants and other Persons retained by the
Company (but not including any underwriting discounts or commissions
attributable to the sale of Registrable Common Shares or fees and expenses of
counsel representing the Holders of Registrable Common Shares) (all such
expenses being herein called "Registration Expenses"), relating to Demand
Registrations shall be borne by the Company to the extent the Registration
Expenses for all Demand Registrations do not exceed USD500,000 in the aggregate.
In the event the Registration Expenses relating to Demand Registrations exceed
USD500,000, such excess shall be borne equally by the Company on the one hand,
and the Holders participating in the Demand Registration in which such excess
Registration Expenses are incurred, on the other hand, with such Holders paying
their portion of such excess Registration Expenses on a pro rata basis. All
Registration Expenses relating to Piggyback Registrations shall be borne solely
by the Company. In addition, the Company shall pay its internal expenses
(including, without limitation, all salaries and expenses of its officers and
employees performing legal or accounting duties), the expense of any annual
audit or quarterly review, the expense of any liability insurance and the
expenses and fees for listing the securities to be registered on each securities
exchange on which they are to be listed.
(b) The obligation of the Company to bear the expenses described in Section
6(a) shall apply irrespective of whether a registration, once properly demanded,
if applicable, becomes effective, is withdrawn or suspended, is converted to
another form of
11
registration and irrespective of when any of the foregoing shall
occur; provided, however, that Registration Expenses for any Registration
Statement withdrawn solely at the request of a Holder of Registrable Common
Shares (unless withdrawn following postponement of filing by the Company in
accordance with Section 2(d)(i) or (ii)) or any supplements or amendments to a
Registration Statement or Prospectus resulting from a misstatement furnished to
the Company by a Holder shall be borne by such Holder.
7. INDEMNIFICATION.
(a) The Company shall indemnify, to the fullest extent permitted by law,
each Holder, its officers, directors and Affiliates and each Person who controls
such Holder (within the meaning of the Securities Act) against all losses,
claims, damages, liabilities and expenses arising out of or based upon any
untrue or alleged untrue statement of material fact contained in any
Registration Statement, Prospectus or preliminary Prospectus or any amendment
thereof or supplement thereto or any omission or alleged omission of a material
fact required to be stated therein or necessary to make the statements therein
not misleading or any violation or alleged violation by the Company of the
Securities Act, the Exchange Act or applicable "blue sky" laws, except insofar
as the same are made in reliance and in conformity with information relating to
such Holder furnished in writing to the Company by such Holder expressly for use
therein or caused by such Holder's failure to deliver to such Holder's immediate
purchaser a copy of the Registration Statement or Prospectus or any amendments
or supplements thereto (if the same was required by applicable law to be so
delivered) after the Company has furnished such Holder with a sufficient number
of copies of the same. In connection with an underwritten offering, the Company
shall indemnify such underwriters, their officers and directors and each Person
who controls such underwriters (within the meaning of the Securities Act) to the
same extent as provided above with respect to the indemnification of the
Holders.
(b) In connection with any Registration Statement in which a Holder of
Registrable Common Shares is participating, each such Holder shall furnish to
the Company in writing such information and affidavits as the Company reasonably
requests for use in connection with any such Registration Statement or
Prospectus and, shall indemnify, to the fullest extent permitted by law, the
Company, its officers, directors Affiliates, and each Person who controls the
Company (within the meaning of the Securities Act) against all losses, claims,
damages, liabilities and expenses arising out of or based upon any untrue or
alleged untrue statement of material fact contained in the Registration
Statement, Prospectus or preliminary Prospectus or any amendment thereof or
supplement thereto or any omission or alleged omission of a material fact
required to be stated therein or necessary to make the statements therein not
misleading, but only to the extent that the same are made in reliance and in
conformity with information relating to such Holder furnished in writing to the
Company by such Holder expressly for use therein or caused by such Holder's
failure to deliver to such Holder's immediate purchaser a copy of the
Registration Statement or Prospectus or any amendments or supplements thereto
(if the same was required by applicable law to be so delivered) after the
Company has furnished such Holder with a sufficient number of copies of the
same; provided, however, that the obligation to indemnify shall be several, not
joint and several, among
12
such Holders and the liability of each such Holder shall be in proportion to and
limited to the net amount received by such Holder from the sale of Registrable
Common Shares pursuant to such Registration Statement.
(c) Any Person entitled to indemnification hereunder shall (i) give prompt
written notice to the indemnifying party of any claim with respect to which it
seeks indemnification, provided that the failure to notify the indemnifying
party shall not relieve the indemnifying party from any liability that it may
have under this Section 7 except to the extent that it has been materially
prejudiced (through the forfeiture of substantive rights or defenses) by such
failure; and provided, further, that the failure to notify the indemnifying
party shall not relieve the indemnifying party from any liability that it may
have to an indemnified party otherwise than under this Section 7 and (ii) unless
in such indemnified party's reasonable judgment a conflict of interest between
such indemnified and indemnifying parties may exist with respect to such claim,
permit such indemnifying party to assume the defense of such claim with counsel
reasonably satisfactory to the indemnified party. If such defense is assumed,
the indemnifying party shall not be subject to any liability for any settlement
made by the indemnified party without its consent (but such consent will not be
unreasonably withheld). An indemnifying party who is not entitled to, or elects
not to, assume the defense of a claim shall not be obligated to pay the fees and
expenses of more than one counsel for all parties indemnified by such
indemnifying party with respect to such claim, unless in the reasonable judgment
of any indemnified party there may be one or more legal or equitable defenses
available to such indemnified party which are in addition to or may conflict
with those available to another indemnified party with respect to such claim.
Failure to give prompt written notice shall not release the indemnifying party
from its obligations hereunder.
(d) The indemnification provided for under this Agreement shall remain in
full force and effect regardless of any investigation made by or on behalf of
the indemnified party or any officer, director or controlling Person of such
indemnified party and shall survive the transfer of securities.
(e) If the indemnification provided for in or pursuant to this Section 7 is
due in accordance with the terms hereof, but is held by a court to be
unavailable or unenforceable in respect of any losses, claims, damages,
liabilities or expenses referred to herein, then each applicable indemnifying
party, in lieu of indemnifying such indemnified party, shall contribute to the
amount paid or payable by such indemnified Person as a result of such losses,
claims, damages, liabilities or expenses in such proportion as is appropriate to
reflect the relative fault of the indemnifying party on the one hand and of the
indemnified party on the other in connection with the statements or omissions
which result in such losses, claims, damages, liabilities or expenses as well as
any other relevant equitable considerations. The relative fault of the
indemnifying party on the one hand and of the indemnified Person on the other
shall be determined by reference to, among other things, whether the untrue or
alleged untrue statement of a material fact or the omission or alleged omission
to state a material fact relates to information supplied by the indemnifying
party or by the indemnified party, and by such party's relative intent,
knowledge, access to information and opportunity to correct or
13
prevent such statement or omission. In no event shall the liability of any
selling Holder be greater in amount than the amount of net proceeds received by
such Holder upon such sale or the amount for which such indemnifying party would
have been obligated to pay by way of indemnification if the indemnification
provided for under Section 7(a) or 7(b) hereof had been available under the
circumstances.
8. PARTICIPATION IN UNDERWRITTEN REGISTRATIONS.
No Person may participate in any registration hereunder which is
underwritten unless such Person (a) agrees to sell such Person's securities on
the basis provided in any underwriting arrangements approved by the Person or
Persons entitled hereunder to approve such arrangements and (b) completes and
executes all questionnaires, powers of attorney, indemnities, underwriting
agreements and other documents required under the terms of such underwriting
arrangements.
9. RULE 144.
The Company covenants that it will file the reports required to be filed by
it under the Securities Act and the Exchange Act and the rules and regulations
adopted by the SEC thereunder, and it will take such further action as any
Holder may reasonably request to make available adequate current public
information with respect to the Company meeting the current public information
requirements of Rule 144(c) under the Securities Act, to the extent required to
enable such Holder to sell Registrable Common Shares without registration under
the Securities Act within the limitation of the exemptions provided by (i) Rule
144 under the Securities Act, as such Rule may be amended from time to time, or
(ii) any similar rule or regulation hereafter adopted by the SEC. Upon the
request of any Holder, the Company will deliver to such Holder a written
statement as to whether it has complied with such information and requirements.
10. MISCELLANEOUS.
(a) Notices. All notices, requests, consents and other communications
required or permitted hereunder shall be in writing and shall be hand delivered
or mailed postage prepaid by registered or certified mail or by facsimile
transmission (with immediate telephone confirmation thereafter),
If to the Company:
Arlington Tankers Ltd.
First Floor, The Hayward Xxxxxxxx
00 Xxxxxxxxxx Xxxx
Xxxxxxxx, XX 00
Xxxxxxx
Xxxxxxxxx No.: (000) 000-0000
If to CM V-MAX I or CM V-XXX XX:
x/x Xxxxxxxxx Xxxxxxxx XX
00
Xxxxxxxxxxxx
XX-0000 Xxx
Xxxxxxxxxxx
Attention: Xxxxxxxxx Aasa Carlsson
Facsimile No.: x00 00 000 0000
If to Panocean, Panisland, Oceanspirit or Oceansong:
x/x Xxxxx Xxxx XX
XX-000 00 Xxxxxxxxxx
Xxxxxx
Attention: Xxx Xxxxxxxx
Facsimile No.: x00 00 00 00 00
If to a transferee Holder, to the address of such Holder set forth in the
transfer documentation provided to the Company;
in each case with copies to (which shall not constitute notice):
Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP
Xxxx Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Attention: Xxxxxxx X. Xxxxxx, Esq.
Facsimile No.: (000) 000-0000
or at such other address as such party each may specify by written notice to the
others, and each such notice, request, consent and other communication shall for
all purposes of the Agreement be treated as being effective or having been given
when delivered personally, upon receipt of facsimile confirmation if transmitted
by facsimile, or, if sent by mail, at the earlier of its receipt or 72 hours
after the same has been deposited in a regularly maintained receptacle for the
deposit of United States mail, addressed and postage prepaid as aforesaid.
(b) No Waivers. No failure or delay by any party in exercising any right,
power or privilege hereunder shall operate as a waiver thereof nor shall any
single or partial exercise thereof preclude any other or further exercise
thereof or the exercise of any other right, power or privilege. The rights and
remedies herein provided shall be cumulative and not exclusive of any rights or
remedies provided by law.
(c) Expenses. Except as otherwise provided for herein or otherwise agreed
to in writing by the parties, all costs and expenses incurred in connection with
the preparation of this Agreement shall be paid by the Company.
(d) Successors and Assigns. The provisions of this Agreement shall be
binding upon and inure to the benefit of the parties hereto and their respective
successors
15
and assigns, it being understood that subsequent Holders of the Registrable
Common Shares are intended third party beneficiaries of this Agreement.
(e) Governing Law. The internal laws, and not the laws of conflicts (other
than Section 5-1401 of the General Obligations Law of the State of New York), of
New York shall govern the enforceability and validity of this Agreement, the
construction of its terms and the interpretation of the rights and duties of the
parties.
(f) Jurisdiction. Any suit, action or proceeding seeking to enforce any
provision of, or based on any matter arising out of or in connection with, this
Agreement or the transactions contemplated hereby may be brought in any federal
or state court located in the County and State of New York, and each of the
parties hereby consents to the jurisdiction of such courts (and of the
appropriate appellate courts therefrom) in any such suit, action or proceeding
and irrevocably waives, to the fullest extent permitted by law, any objection
which it may now or hereafter have to the laying of the venue of any such suit,
action or proceeding in any such court or that any such suit, action or
proceeding which is brought in any such court has been brought in an
inconvenient forum. Process in any such suit, action or proceeding may be served
on any party anywhere in the world, whether within or without the jurisdiction
of any such court. Without limiting the foregoing, each party agrees that
service of process on such party as provided in Section 10(a) shall be deemed
effective service of process on such party.
(g) Waiver of Jury Trial. EACH OF THE PARTIES HERETO HEREBY IRREVOCABLY
WAIVES ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF
OR RELATED TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY.
(h) Counterparts; Effectiveness. This Agreement may be executed in any
number of counterparts (including by facsimile) and by different parties hereto
in separate counterparts, with the same effect as if all parties had signed the
same document. All such counterparts shall be deemed an original, shall be
construed together and shall constitute one and the same instrument. This
Agreement shall become effective when each party hereto shall have received
counterparts hereof signed by all of the other parties hereto.
(i) Entire Agreement. This Agreement contains the entire agreement among
the parties hereto with respect to the subject matter hereof and supersedes and
replaces all other prior agreements, written or oral, among the parties hereto
with respect to the subject matter hereof.
(j) Captions. The headings and other captions in this Agreement are for
convenience and reference only and shall not be used in interpreting, construing
or enforcing any provision of this Agreement.
(k) Severability. If any term, provision, covenant or restriction of this
Agreement is held by a court of competent jurisdiction or other authority to be
invalid, void or unenforceable, the remainder of the terms, provisions,
covenants and restrictions
16
of this Agreement shall remain in full force and effect and shall in no way be
affected, impaired or invalidated so long as the economic or legal substance of
the transactions contemplated hereby is not affected in any manner materially
adverse to any party. Upon such a determination, the parties shall negotiate in
good faith to modify this Agreement so as to effect the original intent of the
parties as closely as possible in an acceptable manner in order that the
transactions contemplated hereby be consummated as originally contemplated to
the fullest extent possible.
(l) Amendments. The provisions of this Agreement, including the provisions
of this sentence, may not be amended, modified or supplemented, and waivers or
consents to departures from the provisions hereof may not be given without the
prior written consent of the holders of a majority of the Registrable Common
Shares (as constituted on the date hereof); provided, however, that without a
Holder's written consent no such amendment, modification, supplement or waiver
shall affect adversely such Holder's rights hereunder in a discriminatory manner
inconsistent with its adverse effects on rights of other Holders hereunder
(other than as reflected by the different number of shares held by such Holder);
provided, further, that the consent or agreement of the Company shall be
required with regard to any termination, amendment, modification or supplement
of, or waivers or consents to departures from, the terms hereof, which affect
the Company's obligations hereunder. This Agreement cannot be changed, modified,
discharged or terminated by oral agreement.
(m) Aggregation of Shares. All Registrable Common Shares held by or
acquired by any Affiliated Persons will be aggregated together for the purpose
of determining the availability of any rights under this Agreement.
(n) Equitable Relief. Without limiting the remedies available, the parties
hereto acknowledge that any failure by the Company to comply with its
obligations under this Agreement will result in material irreparable injury to
the Holders for which there is no adequate remedy at law, that it will not be
possible to measure damages for such injuries precisely and that, in the event
of any such failure, any Holder shall have the right to obtain such relief as
may be required to specifically enforce the Company's obligations under this
Agreement.
[Execution Page Follows]
17
IN WITNESS WHEREOF, this Registration Rights Agreement has been duly
executed by each of the parties hereto as of the date first written above.
ARLINGTON TANKERS, LTD.
By:
--------------------------------
Name:
Title:
CM V-MAX I LIMITED
By:
--------------------------------
Name:
Title:
CM V-XXX XX LIMITED
By:
--------------------------------
Name:
Title:
OCEANSPIRIT LTD.
By:
--------------------------------
Name:
Title:
OCEANSONG LTD.
By:
--------------------------------
Name:
Title:
18
PANISLAND LTD.
By:
--------------------------------
Name:
Title:
PANOCEAN LTD.
By:
--------------------------------
Name:
Title:
19
