EXHIBIT 10(i)
REGISTRATION RIGHTS AGREEMENT
This REGISTRATION RIGHTS AGREEMENT (this "Agreement"), dated as of November
17, 1998, by and among Offshore Tool & Energy Corporation, a Delaware
corporation (the "Company"), and Xxxxxxxxx & Company, Inc. ("Jefferies").
W I T N E S S E T H:
WHEREAS, in connection with that certain Agreement and Share Exchange dated
as of October 1, 1998, as amended as of November 6, 1998, by and among the
Company and certain other parties, the Company has granted to Jefferies a
warrant to purchase 3,000,000 shares of Common Stock (the "Warrant Shares") at
an exercise price of $1.26 per share; and
WHEREAS, the Company has agreed to grant certain registration rights to
Jefferies with respect to the Warrant Shares;
NOW, THEREFORE, in consideration of the foregoing and other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto hereby agree as follows:
1. Definitions.
As used herein, the following terms have the indicated meanings, unless the
context otherwise requires:
"Act" means the Securities Act of 1933, as amended.
"Commission" means the Securities and Exchange Commission.
"Common Stock" means the Common Stock, $0.01 par value, of the Company.
"Exchange Act" means the Securities Exchange Act of 1934, as amended.
"Holder" means a holder of Registrable Securities or any permitted
transferee thereof who owns Registrable Securities.
"Registrable Securities" means the Warrant Shares and any Common Stock or
other securities issued or issuable by the Company with respect to the Warrant
Shares by way of a stock dividend or other distribution or stock split or in
connection with a combination of shares, recapitalization, merger, consolidation
or reorganization. Any Registrable Securities will cease to be such when (i) a
registration statement covering such Registrable Securities has been declared
effective by the Securities and Exchange Commission and such Registrable
Securities have been disposed of pursuant to such effective registration
statement, (ii) such Registrable Securities may be distributed to the public
pursuant to Rule 144 (or any similar provision then in force) under the Act or
(iii) the Company has delivered a new certificate or other evidence of ownership
for such
Registrable Securities not bearing the legend required pursuant to the Series B
Warrant Certificate regarding the Warrant Shares and such Registrable Securities
may be resold to the public without restriction under the Act in accordance with
Rule 144(k).
"Selling Holder" means a Holder who is selling Registrable Securities
pursuant to a registration statement.
2. Piggy-Back Registration.
(a) If the Company proposes to file a registration statement under the Act
with respect to an underwritten offering by the Company of Common Stock for cash
(other than (i) a registration statement on Form S-4 or S-8 (or any substitute
form for comparable purposes that may be adopted by the Commission), (ii) a
registration statement filed in connection with an exchange offer or an offering
of securities solely to the Company's existing security holders, (iii) in
connection with the registration statement that is on a form pursuant to which
an offering of the Registrable Securities cannot be registered or (iv) pursuant
to Article 3 hereof), then the Company shall in each case give written notice of
such proposed filing to the Holders at least 30 days before the anticipated
filing date, and such notice shall offer the Holders the opportunity to register
such number of Registrable Securities as each such Holder may request. Upon the
written request of any Holder received by the Company within 15 business days
after the date of the Company's delivery of its notice to the Holders of its
intention to file such a registration statement, the Company shall, subject to
the conditions and in accordance with the procedures set forth herein, use its
reasonable best efforts to cause the managing underwriter or underwriters of a
proposed underwritten offering to permit the Registrable Securities requested by
the Holder to be included in the registration statement for such offering on the
same terms and conditions as any similar securities of the Company included
therein (a "Piggy-Back Registration"). Notwithstanding the foregoing, if the
managing underwriter or underwriters of such offering indicates in writing to
the Holders who have requested that their Registrable Shares be included in such
offering, its reasonable belief that because of the size of the offering
intended to be made, the inclusion of the Registrable Securities requested to be
included might reasonably be expected to jeopardize the success of the offering
of the securities of the Company to be offered and sold by the Company for its
own account, then the amount of securities to be offered for the account of the
Holders shall be reduced on a pro rata basis with all sellers (whether or not
such sellers are Holders) other than the Company to the extent necessary to
reduce the total amount of securities to be included in such offering to the
amount recommended by such managing underwriter or underwriters. The Company
will bear all Registration Expenses (as hereinafter defined) in connection with
a Piggy-Back Registration.
(b) The Company may, without the consent of any Selling Holder, withdraw
any registration statement prior to the effectiveness thereof and abandon any
proposed offering initiated by the Company, notwithstanding the request of a
Holder to participate therein in accordance with this Section 2, if the Company
determines that such action is in the best interests of the Company.
(c) Notwithstanding anything contained herein to the contrary, the Company
will have no obligation under this Section 2 to register any Registrable
Securities unless at least 100,000 shares (as adjusted for stock splits, stock
dividends or similar transaction) of Registrable Securities in the aggregate are
requested to be included in such offering.
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(d) The right of a Holder to register shares under this Section 2 shall be
conditioned on such Holder's participation as a seller in the underwritten
offering and its execution of an underwriting agreement with the managing
underwriter or underwriters selected by the Company.
3. Demand Registration Rights.
(a) Upon the Company being eligible for filing on Form S-3 or any successor
form, to reflect a sale of Registrable Securities, and if the Holders of at
least 500,000 shares (as adjusted for stock splits, stock dividends or similar
transaction) of the Registrable Securities make a written request to the Company
that the Company effect the registration of such Registrable Securities under
the Act, then the Company shall, within 15 days of the receipt of such request,
give written notice of such request to all other Holders, and such notice shall
offer the Holders the opportunity to register such number of Registrable
Securities as each such Holder may request (a "Demand Registration").
Thereafter, the Company will, as promptly as reasonably practicable prepare and
file with the Commission a registration statement ("Demand Registration
Statement") covering such proposed sale of all such Registrable Shares requested
to be so registered. The Company will bear all Registration Expenses (as
hereinafter defined) in connection with a Demand Registration. The underwriter
or underwriters for a requested registration shall be selected by the consent of
the holders of a majority (by number of shares) of the Registrable Securities
requested to be included in such registration and shall be reasonably acceptable
to the Company.
(b) Subject to paragraph (d) below, the Company will use its reasonable
best efforts to have the Demand Registration Statement declared effective by the
Commission as soon as practicable after the filing thereof and to maintain the
effectiveness thereof for 90 days (or until all Registrable Shares covered
thereby have been sold, if such sales are completed before the end of the 90-day
period).
(c) The Company shall only be required to provide one effective Demand
Registration hereunder.
(d) The Company will be entitled to postpone the filing of the Demand
Registration Statement, and to suspend sales under the Demand Registration
Statement, for: (i) an aggregate number of days not exceeding 90 days, if the
Company determines in its sole discretion that the Demand Registration Statement
or the offering covered thereby would interfere with or require public
disclosure of any financing, acquisition, corporate reorganization or other
transaction involving the Company or any of its subsidiaries; (ii) an aggregate
number of days not exceeding 180 days, if (A) a registration statement was filed
by the Company in connection with an underwritten public offering by the Company
of any securities within the 90 days preceding the date of the request or (B)
the Commission requires such postponement or suspension; provided however, that
in computing the 90-day period for which the Company is required to maintain the
effectiveness of the Demand Registration Statement, the period of any such
suspension shall not be included. The Company shall give prompt written notice
to the Selling Holders of any such postponement or suspension and shall likewise
give prompt written notice to the Selling Holders of termination of such
postponement or suspension. The Selling Holders hereby agree to postpone the
sale of any Registrable Shares pursuant to the Demand Registration Statement
during any suspension of sales of the Common Stock thereunder by the Company.
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4. Restrictions on Public Sale by Holder of Registrable Securities.
To the extent not inconsistent with applicable law, each Holder whose
Registrable Securities are included in a registration statement pursuant to
Section 2 or 3 agrees not to effect any public sale or distribution of the
security being registered or a similar security of the Company, or any
securities convertible into or exchangeable or exercisable for such securities,
including a sale pursuant to Rule 144 under the Act, during the 90-day period
(or such shorter period as may be required by the Company or the managing
underwriter or underwriters with respect to any officer or director or
shareholder of the Company) beginning on the effective date of a registration
statement (except, in each case, as part of such registration), if and to the
extent requested by the Company in the case of a non-underwritten public
offering or if and to the extent requested by the managing underwriter or
underwriters in the case of an underwritten public offering.
5. Registration Procedures.
Whenever the Holders have requested that any Registrable Securities be
included in a registration pursuant to Section 2 or 3 hereof, the Company shall
(unless such registration statement is not filed or is withdrawn) use its
reasonable best efforts to effect the registration as soon as reasonably
practicable, and in connection with any such request, the Company shall (unless
such registration statement is not filed or is withdrawn):
(a) (i) prior to filing a registration statement or prospectus or any
amendments or supplements thereto, furnish to each Selling Holder and
counsel selected by each Selling Holder copies of all such documents
proposed to be filed, which documents will be subject to the review of such
counsel, (ii) furnish to each Selling Holder, prior to filing a
registration statement, copies of such registration statement as proposed
to be filed, and thereafter furnish to each Selling Holder such number of
copies of such registration statement, each amendment and supplement
thereto (in each case including all exhibits thereto), the prospectus
included in such registration statement (including each preliminary
prospectus) and such other documents as any Selling Holder may reasonably
require in order to facilitate the disposition of the Registrable
Securities owned by the Selling Holder, and (iii) after the filing of the
registration statement, promptly notify each Selling Holder of Registrable
Securities covered by such registration statement of any stop order issued
or threatened by the Commission and take all reasonable actions required to
prevent the entry of such stop order or to remove it if entered;
(b) use its reasonable best efforts to register or qualify such
Registrable Securities under such other securities or blue sky laws of such
jurisdictions as each Selling Holder reasonably requests and do any and all
other acts and things which may be reasonably necessary or advisable to
enable the Selling Holder to consummate the disposition in such
jurisdictions of the Registrable Securities owned by the Selling Holder;
provided, however, 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 paragraph (b), (ii) subject itself to
taxation in any such jurisdiction where it is not then so subject or (iii)
consent to general service of process in any such jurisdiction;
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(c) use its reasonable best efforts to cause such Registrable
Securities to be registered with or approved by such other governmental
agencies or authorities as may be necessary by virtue of the business and
operations of the Company to enable the Selling Holder thereof to
consummate the disposition of such Registrable Securities;
(d) notify the Selling Holder, at any time when a prospectus relating
thereto is required to be delivered under the Act, of the occurrence of an
event requiring the preparation of a supplement or amendment to such
prospectus so that, as thereafter delivered to the purchasers of such
Registrable Securities, such prospectus will not contain an untrue
statement of a material fact or omit to state any material fact required to
be stated therein or necessary to make the statements therein not
misleading and promptly make available to the Selling Holder any such
supplement or amendment;
(e) enter into or arrange for the furnishing of customary agreements
and documents (including an underwriting agreement in customary form) and
take such other actions as are reasonably required in order to facilitate
the offering of such Registrable Securities;
(f) make available for inspection by each Selling Holder, any
underwriter participating in any disposition pursuant to such registration
statement and any attorney, accountant or other professional retained by
the Selling Holder or underwriter (collectively, the "Inspectors"), all
financial and other records, pertinent corporate documents and properties
of the Company and its subsidiaries (collectively, the "Records") as shall
be reasonably necessary to enable them to exercise their due diligence
responsibility, and cause the Company's and its subsidiaries' officers,
directors and employees to supply all information reasonably requested by
any such Inspector in connection with such registration statement. Each
Selling Holder agrees that information obtained by it as a result of such
inspections that is material and non-public shall be kept confidential and
shall not be used by it as the basis for any market transactions in
securities of the Company unless and until such is made generally available
to the public. The Selling Holder further agrees that it will, upon
learning that disclosure of such Records is sought in a court of competent
jurisdiction, give notice to the Company and allow the Company, at the
Company's expense, to undertake appropriate action to prevent disclosure of
the Records deemed confidential;
(g) otherwise 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 a period of 12
months, beginning within three months after the effective date of the
registration statement, which earnings statement shall satisfy the
provisions of Section 11(a) of the Act; and
(h) use its reasonable efforts to cause all such Registrable
Securities to be quoted on the Nasdaq National Market, if the Common Stock
is then so quoted, or to be listed on any securities exchange, including
the Alternative Investment Market of the London Stock Exchange ("AIM") on
which the Common Stock is then listed.
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The Company may require the Selling Holder as to which any registration is
being effected to furnish to the Company such information regarding the Selling
Holder and the distribution of such Registrable Securities as the Company may
from time to time reasonably request in writing and such other information as
may be legally required in connection with such registration.
In no event shall the Company be required to amend any registration
statement filed pursuant to this Agreement after it has become effective or to
amend or supplement any prospectus to permit the continued disposition of shares
of Common Stock owned by a Selling Holder registered under any such registration
statement beyond the period during which the Company is required to maintain the
effectiveness thereof pursuant to the terms of this Agreement.
Each Selling Holder agrees that, upon receipt of any notice from the
Company of the happening of any event of the kind described in Section 5(d)
hereof, the Selling Holder will forthwith discontinue disposition of Registrable
Securities pursuant to the registration statement covering such Registrable
Securities until the Selling Holder's receipt of the copies of the supplemented
or amended prospectus contemplated by Section 5(d) hereof, and, if so directed
by the Company, the Selling Holder will deliver to the Company (at the Company's
expense) all copies, other than permanent file copies then in the Selling
Holder's possession, of the prospectus covering such Registrable Securities
current at the time of receipt of such notice. Each Selling Holder also agrees
to notify the Company of any event relating to the Selling Holder that occurs
that would require the preparation of a supplement or amendment to the
prospectus so that such prospectus will not contain an untrue statement of a
material fact or omit to state a material fact required to be stated therein or
necessary to make the statements therein not misleading.
6. Registration Expenses.
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 (including fees
and disbursements of counsel in connection with blue sky qualifications of the
Registrable Securities), rating agency fees, printing expenses, messenger and
delivery expenses, internal expenses (including, without limitation, all
salaries and expenses of its officers and employees performing legal or
accounting duties), the fees and expenses incurred in connection with the
listing of the securities to be registered on the Nasdaq Market System and all
securities exchanges on which similar securities issued by the Company are then
quoted or listed, and fees and disbursements of counsel for the Company and its
independent certified public accountants (including the expenses of any special
audit or comfort letters required by or incident to such performance),
securities act liability insurance (if the Company elects to obtain such
insurance), the fees and expenses of any special experts retained by the Company
in connection with such registration, and fees and expenses of other persons
retained by the Company, in connection with each registration hereunder (but not
including any underwriting discounts or commissions attributable to the sale of
Registrable Securities (which are hereinafter referred to as "Selling
Expenses")) and the reasonable fees and expenses of one counsel for the Selling
Holders, (collectively, the "Registration Expenses") will be borne by the
Company in the event of a registration of Registrable Securities pursuant to
Section 2 or 3 hereof. All Selling Expenses shall be borne solely by the
Selling Holders.
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7. Indemnification; Contribution.
(a) Indemnification by the Company. To the extent permitted by applicable
law, the Company agrees to indemnify and hold harmless each Selling Holder, its
officers, directors, partners and agents and each person, if any, who controls a
Selling Holder within the meaning of Section 15 of the Act or Section 20 of the
Exchange Act, from and against any and all losses, claims, damages (whether in
contract, tort or otherwise), liabilities and expenses (including reasonable
costs of investigation) whatsoever (as incurred or suffered) arising out of or
based upon any untrue statement or alleged untrue statement of a material fact
contained in any registration statement or prospectus relating to the
Registrable Securities or in any amendment or supplement thereto or in any
preliminary prospectus, or arising out of or based upon 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, except insofar as such
losses, claims, damages, liabilities or expenses arise out of, or are based
upon, any such untrue statement or omission or allegation thereof based upon
information furnished in writing to the Company by such Selling Holder or on
behalf of such Selling Holder expressly for use therein and provided that with
respect to any untrue statement or omission or alleged untrue statement or
omission made in any preliminary prospectus, the indemnity agreement contained
in this paragraph shall not apply to the extent that any such loss, claim,
damage, liability or expense results from the fact that a current copy of the
prospectus was not sent or given to the person asserting any such loss, claim,
damage, liability or expense at or prior to the written confirmation of the sale
of the Registrable Securities concerned to such person if it is determined that
the Company had previously provided such Selling Holder with such current copy
of the prospectus, it was the responsibility of such Selling Holder to provide
such person with such current copy of the prospectus and such current copy of
the prospectus would have cured the defect giving rise to such loss, claim,
damage, liability or expense. The Company also agrees to indemnify any
underwriters of the Registrable Securities, their officers, partners and
directors and each person who controls such underwriters on substantially the
same basis as that of the indemnification of the Selling Holder provided in this
Section 7 or such other indemnification customarily obtained by underwriters at
the time of offering.
(b) Conduct of Indemnification Proceedings. If any action or proceeding
(including any governmental investigation) shall be brought or asserted against
a Selling Holder (or its officers, directors, partners, attorneys or agents) or
any person controlling such Selling Holder in respect of which indemnity may be
sought from the Company, the Company shall assume the defense thereof, including
the employment of counsel reasonably satisfactory to such Selling Holder, and
shall assume the payment of all expenses. Each Selling Holder or any
controlling person of a Selling Holder shall have the right to employ separate
counsel in any such action and to participate in the defense thereof, but the
fees and expenses of such counsel shall be at the expense of such Selling Holder
or such controlling person unless (i) the Company has agreed to pay such fees
and expenses or (ii) the named parties to any such action or proceeding
(including any impleaded parties) include both the Selling Holder or such
controlling person and the Company, and the Selling Holder or such controlling
person shall have been advised by counsel that there may be one or more legal
defenses available to such Selling Holder or such controlling person which are
different from or additional to those available to the Company (in which case,
if such Selling Holder or such controlling person notifies the Company in
writing that it elects to employ separate counsel at the expense of the Company,
the Company shall not have the right to assume the defense of such action or
proceeding
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on behalf of such Selling Holder or such controlling person) or (iii) the use of
counsel chosen by the Company to represent the Selling Holder would present such
counsel with a conflict of interest or (iv) the Company shall not have employed
counsel reasonably satisfactory to the Selling Holder to represent the Selling
Holder within a reasonable time after notice of the institution of such action;
it being understood, however, that the Company shall not, in connection with any
one such action or proceeding or separate but substantially similar or related
actions or proceedings in the same jurisdiction arising out of the same general
allegations or circumstances, be liable for the fees and expenses of more than
one separate firm of attorneys (together with appropriate local counsel) at any
time for each Selling Holder, which firm shall be designated in writing by such
Selling Holder). The Company shall not be liable for any settlement of any such
action or proceeding effected without the Company's written consent, but if
settled with its written consent, or if there be a final judgment for the
plaintiff in any such action or proceeding, the Company agrees to indemnify and
hold harmless each Selling Holder and controlling person from and against any
loss or liability (to the extent stated above) by reason of such settlement or
judgment. The Company shall not, without the prior written consent of the
Selling Holder, settle or compromise or consent to the entry of any judgment
with respect to any pending or threatened claim, action, suit or proceeding in
respect of which indemnification or contribution may be sought hereunder
(whether or not the Selling Holders are actual or potential parties to such
claim or action) unless such settlement, compromise or consent includes an
unconditional release of each Selling Holder from all liability arising out of
such claim, action, suit or proceeding.
(c) Indemnification by Holder of Registrable Securities. Each Selling
Holder agrees to indemnify and hold harmless the Company, its directors and
officers and each person, if any, who controls the Company within the meaning of
either Section 15 of the Act or Section 20 of the Exchange Act, to the same
extent as the foregoing indemnity from the Company to the Selling Holder, but
only with respect to information furnished in writing by the Selling Holder or
on the Selling Holder's behalf expressly for use in any registration statement
or prospectus relating to the Registrable Securities, or any amendment or
supplement thereto, or any preliminary prospectus. In case any action or
proceeding shall be brought against the Company or its directors or officers, or
any such controlling person, in respect of which indemnity may be sought against
a Selling Holder, such Selling Holder shall have the rights and duties given to
the Company, and the Company or its directors or officers or such controlling
person shall have the rights and duties given to a Selling Holder, by the
preceding paragraph. The Selling Holder also agrees that it will enter into an
indemnity agreement to indemnify and hold harmless underwriters of the
Registrable Securities, their officers and directors and each person who
controls such underwriters on substantially the same basis as that of the
indemnification of the Company provided in this Section 7(c). Notwithstanding
the foregoing, the liability of a Selling Holder pursuant to this Section 7(c)
shall not exceed the amount of the aggregate proceeds of the Registrable
Securities of the Selling Holder.
(d) Contribution. If the indemnification provided for in this Section 7 is
unavailable to the Company or a Selling Holder in respect of any losses, claims,
damages, liabilities or judgments referred to herein, then each such
indemnifying party, in lieu of indemnifying such indemnified party, shall
contribute to the amount paid or payable by such indemnified party as a result
of such losses, claims, damages, liabilities and judgments (i) as between the
Company and such Selling Holder on the one hand and the underwriters on the
other, in such proportion as is appropriate to reflect the relative benefits
received by the Company and a Selling Holder on the one hand and the
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underwriters on the other from the offering of the Registrable Securities, or if
such allocation is not permitted by applicable law, in such proportion as is
appropriate to reflect not only such relative benefits but also the relative
fault of the Company and such Selling Holder on the one hand and of the
underwriters on the other in connection with the statements or omissions which
resulted in such losses, claims, damages, liabilities or judgments, as well as
any other relevant equitable considerations and (ii) as between the Company, on
the one hand, and a Selling Holder on the other, in such proportion as is
appropriate to reflect the relative fault of the Company and of such Selling
Holder in connection with such statements or omissions, as well as any other
relevant equitable considerations. The relative benefits received by the
Company and a Selling Holder on the one hand and the underwriters on the other
shall be deemed to be in the same proportion as the total proceeds from the
offering (net of underwriting discounts and commissions but before deducting
expenses) received by the Company and such Selling Holder bear to the total
underwriting discounts and commissions received by the underwriters, in each
case as set forth in the table on the cover page of the prospectus. The
relative fault of the Company and such Selling Holder on the one hand and of the
underwriters 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 Company and such Selling Holder or by the underwriters. The
relative fault of the Company on the one hand and of such Selling Holder 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 such party,
and the parties' relative intent, knowledge, access to information and
opportunity to correct or prevent such statement or omission.
The Company and each Selling Holder agree that it would not be just and
equitable if contribution pursuant to this Section 7(d) were determined by pro
rata allocation (even if the underwriters were treated as one entity for such
purpose) or by any other method of allocation which does not take account of the
equitable considerations referred to in the immediately preceding paragraph.
The amount paid or payable by an indemnified party as a result of the losses,
claims, damages, liabilities, or judgments referred to in the immediately
preceding paragraph shall be deemed to include, subject to the limitations set
forth above, any legal or other expenses reasonably incurred by such indemnified
party in connection with investigating or defending any such action or claim.
Notwithstanding the provisions of this Section 7(d), no underwriter shall be
required to contribute any amount in excess of the amount by which the total
price at which the Registrable Securities underwritten by it and distributed to
the public were offered to the public exceeds the amount of any damages which
such underwriter has otherwise been required to pay by reason of such untrue or
alleged untrue statement or omission or alleged omission, and a Selling Holder
shall not be required to contribute any amount in excess of the amount of the
total price at which the Registrable Securities of the Selling Holder were
offered to the public. No person guilty of fraudulent misrepresentation (within
the meaning of Section 11(f) of the Act) shall be entitled to contribution from
any person who was not guilty of such fraudulent misrepresentation.
(e) Indemnification Payments. The indemnification and contribution
required by this Section 7 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 are incurred.
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8. Participation in Underwritten Registrations.
No person may participate in any underwritten registration hereunder unless
such person (a) agrees to sell such person's securities on the basis provided in
any underwriting arrangements approved by the persons entitled hereunder to
approve such arrangements and (b) completes and executes all questionnaires,
powers of attorney, custody agreements, indemnities, underwriting agreements and
other documents reasonably required by the Company or managing underwriter under
the terms of such underwriting arrangements and this Agreement.
9. Rule 144 and Reports.
The Company shall timely file the reports required to be filed by it under
the Securities Act and the Exchange Act (including but not limited to the
reports under Sections 13 and 15(d) of the Exchange Act referred to in
subparagraph (c)(1) of Rule 144 adopted by the Commission under the Securities
Act) and the rules and regulations adopted by the Commission thereunder (or, if
the Company is not required to file such reports, will, upon the request of any
holder of Registrable Securities, make publicly available other information) and
will take such further action as any holder of Registrable Securities may
reasonably request, all to the extent required from time to time to enable such
holder 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 of regulation hereafter adopted by the Commission. Upon the
request of any holder of Registrable Securities, the Company will deliver to
such holder a written statement as to whether it has complied with such
requirements.
10. Miscellaneous.
(a) Binding Effect. Unless otherwise provided herein, the provisions of
this Agreement shall be binding upon and accrue to the benefit of the parties
hereto and their respective heirs and legal representatives and permitted
transferees, successors and assigns. The rights and obligations of a Holder
hereunder cannot be assigned or transferred without the prior written consent of
the Company except by will or intestacy or by operation of law.
(b) Amendment. This Agreement may be amended or terminated only by a
written instrument signed by the Company and each of the Holders.
(c) Applicable Law. The internal laws of the State of New York (without
regard to choice of law provisions thereof) shall govern the interpretation,
validity and performance of the terms of this Agreement.
(d) Notices. All notices provided for herein shall be in writing and shall
be deemed to have been duly given if delivered personally or sent by registered
or certified mail, postage prepaid:
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(i) if to the Company, to:
Offshore Tool & Energy Corporation
000 Xx. Xxxxxxx Xxxxxx
Xxxxxx, Xxxxxxx 00000
Attention: XxXxxxx X. Xxxxxxx, Xx.
with a copy to:
Xxxxx and Xxxxx, L.L.P.
0000 Xxx Xxxxx Xxxxxx
Xxx Xxxxxxx, Xxxxxxxxx 00000
Attention: Xxxxx X. Xxxxxxxxx, Xx.
(ii) if to Jefferies & Company, Inc.:
Jefferies & Company, Inc.
00000 Xxxxx Xxxxxx Xxxxxxxxx, Xxxxx 0000
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Attention: Xxxxx X. Xxxxx
with a copy to:
Xxxxxx & Xxxxxx L.L.P.
2300 First City Tower
0000 Xxxxxx Xxxxxx
Xxxxxxx, Xxxxx 00000-0000
Attention: T. Xxxx Xxxxx
(iii) if to the Holders, initially to the respective addresses set
forth on Exhibit A hereto, and thereafter at such other address of which
notice is given in accordance with the provisions of this Section 10(d).
(e) Counterparts. This Agreement may be executed in one or more
counterparts, each of which shall be deemed to be an original and all of which
together shall be deemed to be one instrument.
(f) Severability. If any term, provision, covenant or restriction of this
Agreement is held by a court of competent jurisdiction to be invalid, void or
unenforceable, the remainder of the terms, provisions, covenants, and
restrictions of this Agreement shall remain in full force and effect.
[SIGNATURES BEGIN ON THE FOLLOWING PAGE]
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed as of the date first above written.
OFFSHORE TOOL & ENERGY CORPORATION
By /s/ XxXxxxx X. Xxxxxxx, Xx.
------------------------------------
Name:
Title:
JEFFERIES & COMPANY, INC.
By /s/
------------------------------------
Name:
Title:
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