Exhibit 10.1
HVIDE CAPITAL TRUST
2,000,000
6 1/2% Trust Convertible Preferred Securities
(Liquidation Amount $50 Per Preferred Security)
June 27, 1997
REGISTRATION RIGHTS AGREEMENT
Xxxxxxxxx, Xxxxxx & Xxxxxxxx
Securities Corporation
Howard, Weil, Labouisse, Xxxxxxxxxx Incorporated
Xxxxxxx Xxxxx & Associates, Inc.
c/x Xxxxxxxxx, Lufkin & Xxxxxxxx
Securities Corporation
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
Hvide Capital Trust, a statutory business trust formed under the laws
of the State of Delaware (the "Trust"), and Hvide Marine Incorporated, a Florida
corporation, as depositor of the Trust and as guarantor (the "Company"),
proposes to issue and sell to the Purchasers (as defined herein), upon the terms
set forth in the Purchase Agreement (as defined herein) an aggregate of
2,000,000 and, at the election of the Purchasers, up to an additional 300,000 of
6 1/2% Trust Convertible Preferred Securities (liquidation amount $50 per
preferred security) (the "Preferred Securities") of the Trust. The Preferred
Securities are guaranteed on a subordinated basis by the Company as to the
payment of distributions, and as to payments on liquidation or redemption, to
the extent set forth in a guarantee agreement (the "Guarantee") between the
Company and The Bank of New York, as guarantee trustee, and may be converted or
exchanged under certain circumstances into 6 1/2% Convertible Subordinated
Debentures due 2012 of the Company (the "Debentures") held by the Trust and then
into Class A Common Stock, par value $0.001 per share ("Class A Common Stock"),
of the Company. The Preferred Securities, the Debentures, the Guarantee and the
Class A Common Stock issuable upon conversion or exchange of the Preferred
Securities and/or the Debentures are referred to collectively as the
"Securities." As an inducement to the Purchasers to enter into the Purchase
Agreement and in satisfaction of a condition to the obligations of the
Purchasers thereunder, the Trust and the Company each agree with the Purchasers
for the benefit of Holders (as defined herein) as follows:
1. DEFINITIONS. (a) Capitalized terms used herein without definition
shall have the meanings ascribed thereto in the Purchase Agreement. As used in
this Registration Rights Agreement, the following defined terms shall have the
following meanings:
"Act" or "Securities Act" means the Securities Act of 1933, as amended,
and the rules promulgated thereunder.
"Affiliate" of any specified person means any other person which,
directly or indirectly is in control of, is controlled by, or is under common
control with such specified person. For purposes of this definition, control of
a person means the power, direct or indirect, to direct or cause the direction
of the management and policies of such person whether by contract or otherwise;
and the terms "controlling" and "controlled" have meanings correlative to the
foregoing.
"Commission" means the Securities and Exchange Commission.
"Declaration" means the Amended and Restated Declaration of Trust,
dated as of June 27, 1997, among Hvide Marine Incorporated, as Depositor, The
Bank of New York, as Trustee, The Bank of New York (Delaware), as Delaware
Trustee, and the Company Trustees named therein, relating, among other things,
to the Preferred Securities, as amended and supplemented from time to time in
accordance with its terms.
"DTC" means the Depository Trust Company.
"Effectiveness Period" has the meaning assigned thereto in Section
2(b)(i).
"Effective Time" means the date on which the Commission declares the
Shelf Registration Statement effective or on which the Shelf Registration
Statement otherwise becomes effective.
"Electing Holder" has the meaning assigned thereto in Section 3(a)(3).
"Exchange Act" means the Securities Exchange Act of 1934, as amended,
and the rules promulgated thereunder.
"Holder" means, when used with respect to any Security, the holder of
such Security. For all purposes of this Agreement, the Company shall be entitled
to treat the record owner of a Security as the beneficial owner of such Security
unless the Company has been given written notice of the existence and identity
of a different beneficial owner.
"Indenture" means the Convertible Subordinated Indenture, dated as of
June 27, 1997, between the Company and The Bank of New York, as indenture
trustee, as amended and supplemented from time to time in accordance with its
terms.
"Managing Underwriters" means the investment banker or investment
bankers and manager or managers that shall administer an underwritten offering,
if any, conducted pursuant to Section 6.
"NASD Rules" means the Rules of the National Association of Securities
Dealers, Inc., as amended.
"Notice and Questionnaire" means a Notice of Registration Statement and
Selling Securityholder Questionnaire substantially in the form of Exhibit A
hereto.
"Person" means an individual, partnership, corporation, trust or
unincorporated organization, or a government or agency or political subdivision
thereof.
"Prospectus" means the prospectus (including, without limitation, any
preliminary prospectus, any final prospectus and any prospectus that discloses
information previously omitted from a prospectus filed as part of an effective
registration statement in reliance upon Rule 430A under the Act) included in the
Shelf Registration Statement, as amended or supplemented by any prospectus
supplement with respect to the terms of the offering of any portion of the
Registrable Securities covered by the Shelf Registration Statement and by all
other amendments and supplements to such prospectus, including all material
incorporated by reference in such prospectus and all documents filed after the
date of such prospectus by the Company under the Exchange Act.
"Purchase Agreement" means the purchase agreement dated June 24, 1997
among the Purchasers, the Trust and the Company.
"Purchasers" means the Purchasers named in Schedule I to the Purchase
Agreement.
"Registrable Securities" means all or any portion of the Securities
issued from time to time; provided, however, that a security ceases to be a
Registrable Security when it is no longer a Restricted Security.
"Restricted Security" means any and all of the Securities except any
such Securities which (i) have been effectively registered under the Securities
Act and sold in a manner contemplated by the Shelf Registration Statement, (ii)
have been transferred in compliance with Rule 144 under the Securities Act (or
any successor provision thereto) or are transferable pursuant to Rule 144(k) (or
any successor provision thereto), (iii) have been sold in compliance with
Regulation S under the Securities Act (or any successor thereto) and does not
constitute the unsold allotment of a distributor within the meaning of
Regulation S under the Securities Act, or (iv) have otherwise been transferred
and a new Security not subject to transfer restrictions under the Securities Act
has been delivered by or on behalf of the Company in accordance with the terms
of the Declaration or the Indenture, as the case may be.
"Rules" means the published rules of the Commission promulgated under
the Securities Act or the Exchange Act, as in effect at any relevant time.
"Securities" means the Preferred Securities, the Debentures, the
Guarantee and the Class A Common Stock issuable upon conversion or exchange of
the Preferred Securities and/or the Debentures.
"Shelf Registration" means a registration effected pursuant to Section
2.
"Shelf Registration Statement" means a "shelf" registration statement
filed under the Securities Act providing for the registration of, and the sale
on a continuous or delayed basis by the Holders of, all of the Registrable
Securities pursuant to Rule 415 under the Securities Act and/or any similar rule
that may be adopted by the Commission, filed by the Company and the Trust
pursuant to the provisions of Section 2, including the Prospectus contained
therein, any amendments and supplements to such registration
statement, including post effective amendments, and all exhibits and all
material incorporated by reference in such registration statement.
"Trust Indenture Act" means the Trust Indenture Act of 1939, or any
successor thereto, and the rules, regulations and forms promulgated thereunder,
as the same shall be amended from time to time.
"Underwriter" means any underwriter of Registrable Securities in
connection with an offering thereof under a Shelf Registration Statement.
(b) Wherever there is a reference in this Agreement to a percentage of
the "principal amount" of Registrable Securities or to a percentage of
Registrable Securities, the Preferred Securities and the Debentures issuable
upon conversion or exchange of the Preferred Securities will be treated as the
same class of Securities and Class A Common Stock shall be treated as
representing the liquidation amount of Preferred Securities or the principal
amount of Debentures which was surrendered for conversion or exchange in order
to receive such number of shares of Class A Common Stock.
2. SHELF REGISTRATION.
(a) The Company and the Trust shall, within 90 calendar days following
the first Time of Delivery (as defined in the Purchase Agreement), file with the
Commission a Shelf Registration Statement relating to the offer and sale of the
Registrable Securities and, thereafter, each of the Company and the Trust shall
use their respective best efforts to cause such Shelf Registration Statement to
be declared effective under the Act within 150 calendar days after the Time of
Delivery; provided, however, that no Holder shall be entitled to be named as a
selling securityholder in the Shelf Registration Statement or to use the
Prospectus forming a part thereof for resales of Registrable Securities unless
such Holder is an Electing Holder.
(b) Each of the Company and the Trust shall use their respective best
efforts:
(i) To keep the Shelf Registration Statement continuously
effective (subject to any Suspension Period (as defined below)) in
order to permit the Prospectus forming part thereof to be usable by
Electing Holders for resales of Registrable Securities for a period
that will terminate upon the earlier of the following: (A) when all of
the Preferred Securities covered by the Shelf Registration Statement
have been sold pursuant to the Shelf Registration Statement; (B) when
all of the Debentures issued to Holders in respect of Preferred
Securities that had not been sold pursuant to the Shelf Registration
Statement have been sold pursuant to the Shelf Registration Statement;
(C) when all of the shares of Class A Common Stock issued upon
conversion of any such Preferred Securities or any such Debentures that
have not been sold pursuant to the Shelf Registration Statement have
been sold pursuant to the Shelf Registration Statement; and (D) when,
in written opinion of counsel to the Trust and the Company, all
outstanding Registrable Securities held by persons which are not
affiliates of the Trust or the Company may be resold without
registration under the Act pursuant to Rule 144(k) under the Act or any
successor provision thereto (in any such case, such period being called
the "Effectiveness Period").
(ii) After the Effective Time of the Shelf Registration
Statement, reasonably promptly upon the request of any Holder that is
not then an Electing Holder identified as a selling securityholder in
the Prospectus at the Effective Time, to take any action reasonably
necessary to enable such Holder to use the Prospectus forming a part
thereof for resales of Registrable Securities, including, without
limitation, any action necessary to identify such Holder as a selling
securityholder in the Shelf Registration Statement; provided, however,
that nothing in this Section 2(b) shall relieve such Holder of the
obligation to return a completed and signed Notice and Questionnaire to
the Trust in accordance with Section 3(a)(2) and to provide to the
Trust and the Company, in writing, any information with respect to such
Holder or the Registrable Securities held by such Holder as is, in the
reasonable opinion of counsel to the Trust or the Company, required
under applicable law to enable such Holder to use such Prospectus for
resales of such Registrable Securities; and
(iii) If at any time prior to the end of the Effectiveness
Period, the Preferred Securities are convertible into securities other
than Class A Common Stock, the Company and the Trust shall, or shall
cause any successor under the Declaration to, cause such securities to
be included in the Shelf Registration Statement no later than the date
on which the Preferred Securities may then be convertible into such
securities.
(c) If (i) on or prior to the date 90 days after the Time of Delivery a
Shelf Registration Statement has not been filed with the Commission or (ii) on
or prior to the date 150 days after the last Time of Delivery such Shelf
Registration Statement has not been declared effective (each such event, a
"Registration Default"), additional interest ("Liquidated Damages") will accrue
on the Debentures, and, accordingly, additional distributions will accrue on the
Preferred Securities, from and including the day following such Registration
Default until such date as the Shelf Registration Statement is filed or declared
effective, as the case may be. Liquidated Damages will be paid quarterly in
arrears (subject to the Company's right to defer the payment of Liquidated
Damages during any Extension Period (as defined in the Indenture)), with the
first quarterly payment due on the first interest or distribution payment date,
as applicable, following the date on which such Liquidated Damages begin to
accrue, and will accrue at a rate per annum equal to an additional one-quarter
of one percent (0.25%) of the principal amount or liquidation amount, as
applicable, to and including the 90th day following such Registration Default
and one-half of one percent (0.50%) thereof from and after the 91st day
following such Registration Default. In the event that the Shelf Registration
Statement ceases to be effective during the Effectiveness Period for more than
90 days, whether or not consecutive, during any 12-month period, then the
interest rate borne by the Debentures and the distribution rate borne by the
Preferred Securities will each increase by an additional one-half of one percent
(0.50%) per annum from the 91st day of the applicable 12-month period such Shelf
Registration Statement ceases to be effective until such time as the earlier to
occur of the Shelf Registration Statement again becoming effective and the end
of the Effectiveness Period.
(d) Each of the Company and the Trust shall be deemed not to have used
their respective best efforts to keep the Shelf Registration Statement effective
during the Effectiveness Period if either the Trust or the Company voluntarily
takes any action that
would result in Electing Holders not being able to offer and sell any of their
Registrable Securities during such period, unless such action is required by
applicable law. Any such period during which the Company and the Trust are
permitted to suspend the effectiveness of the Shelf Registration Statement is
referred to herein as the "Suspended Period."
3. REGISTRATION PROCEDURES. In connection with the Shelf Registration
Statement, the following provisions shall apply:
(a)(1) The Company shall not be required to take any action to
name such Holder as a selling securityholder in the Shelf Registration Statement
or to enable such Holder to use the Prospectus forming a part thereof for
resales of Registrable Securities until such Holder has returned a completed and
signed Notice and Questionnaire to the Company and the Trust and provided to the
Trust and the Company such information with respect to such Holder or the
Registrable Securities held by such Holder as is, in the reasonable opinion of
counsel to the Trust or the Company, required to enable such Holder to use the
Prospectus for resales of Registrable Securities.
(2) Not less than 30 calendar days prior to the Effective Time of the Shelf
Registration Statement, the Company or the Trust shall mail the Notice and
Questionnaire to each Holder. No Holder shall be entitled to be named as a
selling securityholder in the Shelf Registration Statement as of the Effective
Time, and no Holder shall be entitled to use the Prospectus forming a part
thereof for resales of Registrable Securities at any time, unless such Holder
has returned a completed and signed Notice and Questionnaire to the Company and
the Trust and provided to the Trust and the Company such information with
respect to such Holder of the Registrable Securities held by such Holder as is,
in the reasonable opinion of counsel to the Trust or the Company, required to
enable such Holder to use the Prospectus for resales of Registrable Securities;
provided, however, only Holders who have completed and returned the Notice and
Questionnaire and any such additional information requested of such Holder to
the Company on or before the day that is ten days prior to the Effective Time
shall be entitled to be named as a selling securityholder in the Shelf
Registration Statement as of the Effective Time.
(3) The term "Electing Holder" shall mean any Holder that has returned a
completed and signed Notice and Questionnaire to the Company in accordance with
Section 3(a)(1) or 3(a)(2) and provided to the Trust and the Company such
information with respect to such Holder or the Registrable Securities held by
such Holder as is, in the reasonable opinion of counsel to the Trust or the
Company, required to enable such Holder to use the Prospective for resales of
Registrable Securities.
(b) The Company and the Trust shall furnish to each Electing
Holder, prior to the Effective Time, a copy of the Shelf Registration
Statement initially filed with the Commission, and shall reasonably
promptly furnish to such Holders, copies of each amendment thereto and
each amendment or supplement, if any, to the Prospectus included
therein and shall consider in good faith for inclusion in each such
document, at the Effective Time such comments as such Holders or their
counsel reasonably may propose; provided, however, that the Company's
obligations set forth in this Section 3(b) shall not require the
Company to delay or postpone the Effective Time or prevent the Company
from otherwise requesting the acceleration of the effectiveness of the
Shelf Registration Statement.
(c) The Company and the Trust shall promptly take such action
as may be necessary so that (i) each of the Shelf Registration
Statement and any amendment thereto and the Prospectus forming part
thereof and any amendment or supplement thereto (and each report or
other document incorporated therein by reference in each case) complies
in all material respects with the Securities Act and the rules and
regulations thereunder, (ii) each of the Shelf Registration Statement
and any amendment thereto does not, when it becomes effective, 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 and (iii) each of the Prospectus forming part of
the Shelf Registration Statement, and any amendment or supplement to
such Prospectus, does not at any time during the Effectiveness Period
include an untrue statement of a material fact or omit to state a
material fact necessary in order to make the statements therein, in the
light of the circumstances under which they were made, not misleading.
(d)(1) The Company shall promptly advise the Purchasers and,
in the case of clause (i), the Electing Holders and, if requested by
the Purchasers or any such Electing Holder, confirm such advice in
writing:
(i) when the Shelf Registration Statement and any
amendment thereto has been filed with the Commission and when
the Shelf Registration Statement or any post-effective
amendment thereto has become effective; and
(ii) of any request by the Commission for amendments or
supplements to the Shelf Registration Statement or the
Prospectus included therein or for additional information.
(2) The Company shall promptly advise each Electing Holder of:
(i) the issuance by the Commission of any stop order
suspending the effectiveness of the Shelf Registration
Statement or the initiation of any proceedings for such
purpose;
(ii) the receipt by the Company or the Trust of any
notification with respect to the suspension of the
qualification of the securities included in the Shelf
Registration Statement for sale in any jurisdiction of the
initiation of any proceeding for such purpose; and
(iii) the happening of any event that requires the making
of any changes in the Shelf Registration Statement or the
Prospectus included therein so that, as of such date, such
Shelf Registration Statement and Prospectus do not contain an
untrue statement of a material fact and do not omit to state a
material fact required to be stated therein or necessary to
make the statements therein (in the case of the Prospectus, in
the light of the circumstances under which they were made) not
misleading (which advice shall be accompanied by an
instruction to suspend the use of the Prospectus until the
requisite changes have been made).
(e)Each of the Company and the Trust shall use their
respective
best efforts to prevent the issuance, and if issued to obtain the
withdrawal, of any order suspending the effectiveness of the Shelf
Registration Statement at the earliest possible time.
(f) The Company and the Trust shall furnish to each Electing
Holder, without charge, at least one copy of the Shelf Registration
Statement and all post-effective amendments thereto, including
financial statements and schedules, and, if such Holder so requests in
writing, all reports, other documents and exhibits that are filed with
or incorporated by reference in the Shelf Registration Statement.
(g) The Company and the Trust shall, during the Effectiveness
Period, deliver to each Electing Holder, without charge, as many copies
of the Prospectus (including each preliminary Prospectus) included in
the Shelf Registration Statement and any amendment or supplement
thereto as such Electing Holder may reasonably request; and the Company
and the Trust each consents (except during the continuance of any event
described in Section 3(d) (2) (iii) or during any Suspension Period) to
the use of the Prospectus and any amendment or supplement thereto by
each of the Electing Holders in connection with the offering and sale
of the Registrable Securities covered by the Prospectus and any
amendment or supplement thereto during the Effectiveness Period.
(h) Prior to any offering of Registrable Securities pursuant
to the Shelf Registration Statement, the Company and the Trust shall
(1) register or qualify or cooperate with the Electing Holders and
their respective counsel in connection with the registration of
qualification of such Registrable Securities for offer and sale under
the securities or "blue sky" laws of such jurisdictions within the
United States as any Electing Holder may reasonably request, (2) keep
such registrations or qualifications in effect (subject to any
Suspension Period) and comply with such laws so as to permit the
continuance of offers and sales in such jurisdictions for so long as
may be necessary to enable any Electing Holder or underwriter, if any,
to complete its distribution of Registrable Securities pursuant to the
Shelf Registration Statement, and (3) take any and all other actions
necessary or advisable to enable the disposition in all other actions
necessary or advisable to enable the disposition in such jurisdiction
of such Registrable Securities; provided, however, that in no event
shall the Company or the Trust be obligated to (i) qualify generally to
do business or as a foreign corporation or as a dealer in securities in
any jurisdiction where each would not otherwise be required to so
qualify but for this Section 3(h), (ii) file any general consent to
service of process in any jurisdiction where it is not as of the date
hereof so subject or (iii) subject itself to taxation in any
jurisdiction where it is not otherwise so subject.
(i) Unless any Registrable Securities shall be in book-entry
only form, the Company and the Trust shall cooperate with the Electing
Holders to facilitate the time by preparation and delivery of
certificates representing Registrable Securities to be sold pursuant to
the Shelf Registration Statement free of any restrictive legends and in
such permitted denominations and registered in such names as Electing
Holders may request in connection with the sale of
Registrable Securities pursuant to the Shelf Registration Statement.
(j) Upon the occurrence of any event contemplated by
paragraph 3(d)(2)(iii), the Company and the Trust shall promptly
prepare a post-effective amendment or supplement to the Shelf
Registration Statement or the Prospectus, or any document incorporated
therein by reference, or file any other required document so that, as
thereafter delivered to purchasers of the Registrable Securities
included therein, the Prospectus will not include an untrue statement
of a material fact or omit to state any material fact necessary to make
the statements therein, in the light of the circumstances under which
they were made, not misleading (except, in each case, for an untrue
statement of a material fact or omission of a material fact made in
reliance on and in conformity with written information furnished to the
Trust or the Company by or on behalf of any Electing Holders). Upon
receipt of written notice from the Company or the Trust of the
occurrence of any event contemplated by Section 3(d)(2)(iii) or of any
Suspension Period, each Holder shall forthwith discontinue disposition
of Registrable Securities until such Holder has received copies of the
supplemental or amended Prospectus required by this Section 3(j), or
until such Holder is advised by the Company or the Trust that the use
of the Prospectus may be resumed and, if so directed by the Company,
such Holder shall deliver to the Company (at the Company's expense) all
copies then in such Holder's possession of the Prospectus covering such
Registrable Securities current at the time of such notice.
(k) Not later than the effective date of any Shelf
Registration Statement hereunder, the Company and the Trust shall each
provide a CUSIP number for the Preferred Securities registered under
such Shelf Registration Statement; in the event of and at the time of
any distribution of the Debentures to Holders, the Company and the
Trust shall provide a CUSIP number for the Debentures and provide the
applicable trustees with certificates for such Registration Securities,
in a form eligible for deposit with DTC.
(l) Each of the Company and the Trust shall use their
respective best efforts to comply with all applicable Rules, and to
make generally available to its securityholders as soon as practicable,
but in any event not later than 15 months after (i) the effective date
(as defined in Rule 158(c) under the Securities Act) of the Shelf
Registration Statement, (ii) the effective date of each post effective
amendment to the Shelf Registration Statement, and (iii) the date of
each filing by the Company with the Commission of an Annual Report on
Form 10-K that is incorporated by reference in the Shelf Registration
Statement, an earnings statement of the Company and its subsidiaries
complying with Section 11(a) of the Securities Act and the rules and
regulations of the Commission thereunder (including, at the option of
the Company, Rule 158).
(m) Each of the Company and the Trust shall use their
respective best efforts to cause the Indenture, the Declaration and the
Guarantee to be qualified under the Trust Indenture Act in a timely
manner.
(n) In the event of an underwritten offering conducted
pursuant to Section 6, the Company and the Trust shall, if requested,
promptly include or
incorporate in a Prospectus supplement or post-effective amendment to
the Shelf Registration Statement such information as the Managing
Underwriters reasonably agree should be included therein and to which
the Company does not reasonably object and shall make all required
filings of such Prospectus supplement or post-effective amendment as
soon as practicable after it is notified of the matters to be included
or incorporated in such Prospectus supplement or post-effective
amendment.
(o) The Company and the Trust shall enter into such customary
agreements (including an underwriting agreement in customary form in
the event of an underwritten offering conducted pursuant to Section 6)
and take all other appropriate action in order to expedite and
facilitate the registration and disposition of the Registrable
Securities, and in connection therewith, if an underwriting agreement
is entered into, causes the same to contain indemnification provisions
and procedures reasonably similar to those set forth in Section 5 with
respect to all parties to be indemnified pursuant to Section 5.
(p) Each of the Company and the Trust shall:
(i)(A) make reasonably available for
inspection by Electing Holders, any underwriter participating
in any disposition pursuant to such Shelf Registration
Statement, and any attorney, accountant, expert or other agent
retained by such Holders or any such underwriter all relevant
financial and other records, pertinent corporate or other
documents and properties of the Company, its subsidiaries and
the Trust, and (B) cause the officers, directors, employees,
trustees and agents of the Company and the Trust to supply all
information reasonably requested by such Holders or any such
underwriter, attorney, accountant, expert or agent in
connection with the Shelf Registration Statement, in each
case, as is customary for similar due diligence examinations;
provided, however, that each Electing Holder and its
representatives and agents shall execute an agreement (in form
reasonably acceptable to the Company) providing that all
records, information and documents that are designated in
writing by the Company and the Trust, in good faith, as
confidential shall be kept confidential by such Holders and
any such underwriter, attorney, accountant, expert or agent,
unless such disclosure is made in connection with a court
proceeding or required by law, or such records, information or
documents become available to the public generally or through
a third party without an accompanying obligation of
confidentiality; and provided further that, if the foregoing
inspection and information gathering would, in the Company's
reasonable judgment, disrupt the Company's conduct of its
business, such inspection and information gathering shall be
coordinated on behalf of the Electing Holders and the other
parties entitled thereto by one counsel designated by and on
behalf of Electing Holders and other parties (the fees and
expenses of such counsel to be borne by such Electing Holders
except to the extent set forth in Section 4);
(ii) in connection with any underwritten offering
conducted pursuant to Section 6, make such representations and
warranties to the
Holders participating in such underwritten offering and to the
Managing Underwriters, in form, substance and scope as are
customarily made by the Company and the Trust to underwriters
in primary underwritten offerings of equity and convertible
preferred and debt securities and covering matters including,
but not limited to, those set forth in the Purchase Agreement;
(iii) in connection with any underwritten offering
conducted pursuant to Section 6, obtain opinions of counsel to
the Company and the Trust (which counsel and opinions (in
form, scope and substance) shall be reasonably satisfactory to
the Managing Underwriters) addressed to each Holder
participating in such underwritten offering and the
underwriters, covering such matters as are customarily covered
in opinions requested in underwritten offerings and such other
matters as may be reasonably requested by such Holders and
underwriters (it being agreed that the matters to be covered
by such opinions shall include, without limitation, as of the
date of the opinion and as of the Effective Time of the Shelf
Registration Statement or most recent post-effective amendment
thereto, as the case may be, the absence from the Shelf
Registration Statement and the Prospectus, including the
documents incorporated by reference therein, of an untrue
statement of a material fact or the omission of a material
fact required to be stated therein or necessary to make the
statements therein not misleading;
(iv) in connection with any underwritten offering
conducted pursuant to Section 6, obtain "cold comfort" letters
and updates thereof from the independent public accountants of
the Company and the Trust, addressed to each Holder
participating in such underwritten offering (if such Holder
has provided such letter, representations or documentation, if
any, required for such "cold comfort" letter to be so
addressed) and the underwriters, in customary form and
covering matters of the type customarily covered in "cold
comfort" letters in connection with primary underwritten
offerings; and
(v) deliver such documents and certificates as may be
reasonably requested by any Holders participating in such
underwritten offering and the Managing Underwriters, if any,
including, without limitation, certificates to evidence
compliance with Section 3(j) and with any conditions contained
in the underwriting agreement or other agreements entered into
by the Company and the Trust.
(q) Each of the Company and the Trust will each use their
respective best efforts to cause the Class A Common Stock issuable upon
conversion of the Preferred Securities to be listed for quotation on
The Nasdaq National Market or other stock exchange or trading system on
which the Class A Common Stock primarily trades on or prior to the
Effective Time of the Shelf Registration Statement hereunder.
(r) Each of the Company and the Trust shall use their
respective best efforts to take all other steps necessary to effect the
registration, offering and
sale of the Registrable Securities covered by the Shelf Registration
Statement contemplated hereby.
(s) Upon receipt of written notice from the Company that a
Suspension Period is in effect, each Holder shall forthwith discontinue
disposition of Registrable Securities until such Holder has received
copies of the supplemental or amended Prospectus required by Section
3(j), or until such Holder is advised in writing by the Company that
the use of the Prospectus may be resumed, and, if so directed by the
Company, such Holder shall deliver to the Company (at the Company's
expense) all copies then in such Holder's possession, of the Prospectus
covering such Registrable Securities current at the time of receipt of
such notice.
4. REGISTRATION EXPENSES. The Company and the Trust shall bear all fees and
expenses customarily borne by issuers in a non-underwritten secondary offering
by selling securityholders or in an underwritten offering, as the case may be,
incurred in connection with the performance of its obligations under Section 2,
3 and 6. In addition, in the event of an underwritten offering of Registrable
Securities conducted pursuant to Section 6, or if in any other event the Company
requires that inspection and information gathering be coordinated by counsel for
the Electing Holders as provided in Section 3(p)(i), the Company shall pay the
reasonable fees and expenses of one counsel selected by the Electing Holders of
not less than 25% of the Registrable Securities to be included in such
underwritten offering (or, in any such other event, included in the Shelf
Registration Statement) to represent them.
5. INDEMNIFICATION AND CONTRIBUTION.
(a) Indemnification by the Company. Upon the registration of the
Registrable Securities pursuant to Section 2, and in consideration of the
agreements of the Electing Holders and any underwriters, selling agents or other
securities professionals contained in Section 5(b), the Company and the Trust
jointly and severally shall, and each hereby agrees to, indemnify and hold
harmless each Electing Holder and each underwriter, selling agent or other
securities professional, if any, which facilitates the disposition of
Registrable Securities, and each of their respective officers and directors and
each person who controls such Electing Holder, underwriter, selling agent or
other securities professional within the meaning of Section 15 of the Securities
Act or Section 20 of the Exchange Act (each such person being sometimes referred
to as an "Indemnified Person") against any losses, claims, damages or
liabilities, joint or several, to which such Indemnified Person may become
subject under the Securities Act or otherwise, insofar as such losses, claims,
damages or liabilities (or actions in respect thereof) arise out of or are based
upon an untrue statement or alleged untrue statement of a material fact
contained in any Shelf Registration Statement under which such Registrable
Securities are to be registered under the Securities Act, or any Prospectus
contained therein or any amendment or supplement thereto, or arise out of or are
based upon the omission or alleged omission to state therein a material fact
required to be stated therein or necessary to make the statements therein not
misleading, and the Company and the Trust hereby agree to reimburse such
Indemnified Person for any reasonable legal or other out-of-pocket expenses
reasonably incurred by them in connection with investigating or defending any
such action or claim as such expenses are incurred; provided, however, that the
Company or the Trust shall not be liable to any such Indemnified Person in any
such case to the
extent that any such loss, claim, damage or liability arises out of or is based
upon an untrue statement or alleged untrue statement or omission or alleged
omission made in such Shelf Registration Statement or Prospectus, or amendment
or supplement, in reliance upon and in conformity with written information
furnished to the Company or the Trust by such Indemnified Person expressly for
use therein. The foregoing notwithstanding, the Trust and the Company shall not
be liable to the extent that such losses, claims, damages or liabilities arise
out of or are based upon an untrue statement or alleged untrue statement or
omission or alleged omission made in any Prospectus that is a preliminary
prospectus if (i) such Indemnified Person failed to send or deliver a copy of
the Prospectus with or prior to the delivery of written confirmation of the sale
of Registrable Securities giving rise to such losses, claims, damages or
liabilities and (ii) the Prospectus would have corrected such untrue statement
or omission. In addition, the Trust and the Company shall not be liable to the
extent that any such losses, claims, damages or liabilities arise out of or are
based upon an untrue statement or alleged untrue statement or omission or
alleged omission in a Prospectus (A) if such untrue statement or omission or
alleged untrue statement or omission is corrected in an amendment or supplement
to such Prospectus and (B) having previously been furnished by or on behalf of
the Trust or the Company with copies of the Prospectus as amended or
supplemented, such Indemnified Person thereafter fails to deliver such
Prospectus as so amended or supplemented prior to or concurrently with the sale
to the person who purchased a Registrable Security from such Indemnified
Personand who is asserting such losses, claims, damages or liabilities.
(b) Indemnification by the Holders and any Agents and Underwriters.
Each Electing Holder agrees, as a consequence of the inclusion of any of such
Holder's Registrable Securities in such Shelf Registration Statement, and each
underwriter, selling agent or other securities professional, if any, which
facilitates the disposition of Registrable Securities shall agree, as a
consequence of facilitating such disposition of Registrable Securities,
severally and not jointly, to (i) indemnify and hold harmless the Company and
the Trust, its directors, trustees, agents and officers who sign any Shelf
Registration Statement and each person, if any, who controls the Company within
the meaning of either Section 15 of the Securities Act or Section 20 of the
Exchange Act (collectively referred to as the "Indemnified Party"), against any
losses, claims, damages or liabilities to which the Company or such other
persons may become subject, under the Securities Act or otherwise, insofar as
such losses, claims, damages or liabilities (or actions in respect thereof)
arise out of or are based upon an untrue statement or alleged untrue statement
of a material fact contained in such Shelf Registration Statement or Prospectus,
or any amendment or supplement, or arise out of or are based upon the omission
or alleged omission to state therein a material fact required to be stated
therein or necessary to make the statements therein not misleading, in each case
to the extent, but only to the extent, that such untrue statement or alleged
untrue statement or omission or alleged omission was made in reliance upon and
in conformity with written information furnished to the Company or the Trust by
such Holder, underwriter, selling agent or other securities professional
expressly for use therein, and (ii) reimburse the Company and the Trust for any
reasonable legal or other out-of-pocket expenses reasonably incurred by the
Company and the Trust in connection with investigating or defending any such
action or claim as such expenses are incurred.
(c) Notices of Claims, Etc. If any action or proceeding (including any
governmental investigation or inquiry) shall be brought or asserted against an
Indemnified
Person under Section 5(a) or an Indemnified Party under Section 5(b)
(collectively referred to as the "Indemnified Holder") in respect of which
indemnity may be sought, such Indemnified Holder shall promptly notify the
indemnifying Company and Trust under Section 5(a) and the indemnifying Electing
Holders under Section 5(b) (collectively the "Indemnifying Party") in writing
(provided that the failure to give such notice shall not relieve the
Indemnifying Party of its obligations pursuant to this Agreement unless and only
to the extent that such omission results in the loss or compromise of any
material rights or defenses by the Indemnifying Party, as determined by a court
of competent jurisdiction by final judgment), and the Indemnifying Party shall
assume the defense thereof, including the employment of counsel reasonably
satisfactory to such Indemnified Holder and the payment of all expenses in
connection therewith; but the omission so to notify the Indemnifying Party shall
not relieve it from any liability which it may have to any Indemnified Holder
otherwise than under this Section 5. Such Indemnified 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 separate counsel shall be the
expense of such Indemnified Holder unless (i) the Indemnifying Party has agreed
to pay such fees and expenses, (ii) the Indemnifying Party shall have failed to
promptly assume the defense of such action or proceeding or has failed to employ
counsel reasonably satisfactory to such Indemnified Holder in any such action or
proceeding or (iii) the named parties to any such action or proceeding
(including any impleaded parties) include both such Indemnified Holder and the
Indemnifying Party, and such Indemnified Holder shall have been advised by
counsel that there may be one or more legal defenses availabe to such
Indemnified Holder that are different from or additional to those available to
the Indemnifying Party or that a conflict may exist between the Indemnified
Holder and the Indemnifying Party. If such Indemnified Holder notifies the
Indemnifying Party in writing that it elects to employ separate counsel at the
expense of the Indemnifying Party as permitted by the provisions of the
preceding sentence, the Indemnifying Party shall not have the right to assume
the defense of such action or proceeding on behalf of such Indemnified Holder.
The foregoing notwithstanding, the Indemnifying Party shall not be liable for
the reasonable fees and expenses of more than one separate firm of attorneys (in
addition to any local counsel) at any time for such Indemnified Holder and any
other Indemnified Holders (which firm shall be designated in writing by such
Indemnified Holders) 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. The
Indemnifying Party shall not be liable for any settlement of any such action or
proceeding effected without the Indemnifying Party's prior written consent, and
the Indemnifying Party agrees to indemnify and hold harmless any Indemnified
Holder from and against any loss, damage, liability or expense by reason of any
settlement of any action effected with the written consent of the Indemnifying
Party. No Indemnifying Party shall, without the written consent of the
Indemnified Holder (which consent shall not be unreasonably withheld), effect
the settlement or compromise of, or consent to the entry of any judgment with
respect to, any pending or threatened action or claim in respect of which
indemnification or contribution may be sought hereunder (whether or not the
Indemnified Holder is an actual or potential party to such action or claim)
unless such settlement, compromise or judgment includes an unconditional release
of the Indemniied Holder from all liability arising out of such action or claim.
(d) Contribution. If the indemnification provided for in this Section
5 is
unavailable to an Indemnified Holder under Section 5(a) or (b) in respect of any
losses, claims, damages or liabilities (or actions in respect thereof) referred
to therein, then each Indemnifying Party shall contribute to the amount paid or
payable by such Indemnified Holder as a result of such losses, claims, damages
or liabilities (or actions in respect thereof)in such proportion as is
appropriate to reflect the relative fault of the Indemnifying Party and the
Indemnified Holder in connection with the statements or omissions which resulted
in such losses, claims, damages or liabilities (or actions in respect thereof),
as well as any other relevant equitable considerations. The relative fault of
such Indemnifying Party and Indemnified Holder shall be determined by reference
to, among other things, whether the untrue or alleged untrue statement of a
material fact or omission or alleged omission to state a material fact relates
to information supplied by such Indemnifying Party or by such Indemnified
Holder, and the parties' relative intent, knowledge, access to information and
opportunity to correct or prevent such statement or omission. The parties hereto
agree that it would not be just and equitable if contribution pursuant to this
Section 5(d) were determined by pro rata allocation (even if the Electing
Holders or any underwriters, selling agents or other securities professionals or
all of them 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 this Section 5(d). The amount paid or payable by an indemnified
party as a result of the losses, claims, damages or liabilities (or actions in
respect thereof) referred to above shall be deemed to include any legal or other
fees or expenses reasonably incurred by such Indemnified Party in connection
with investigating or defending any such action or claim. The obligations of the
Electing Holders and anyunderwriters, selling agents or other securities
professionals in this Section 5(d) to contribute shall be several in proportion
to the percentage of principal amount of Registrable Securities registered or
underwritten, as the case may be, by them and not joint. No person guilty of
fraudulent misrepresentation (within the meaning of Section 11(f) of the
Securities Act) shall be entitled to contribution from any person who was not
guilty of such fraudulent misrepresentation.
(e) Limitations on Liability. Notwithstanding any other provision of
this Section 5, in no event will any (i) Electing Holder be required to
undertake liability to any person under this Section 5 for any amounts in excess
of the dollar amount of the proceeds to be received by such Holder from the sale
of such holder's Registrable Securities (after deducting any fees, discounts and
commissions applicable thereto) pursuant to any Shelf Registration Statement
under which such Registrable Securities are to be registered under the
Securities Act and (ii) underwriter, selling agent or other securities
professional be required to undertake liability to any person hereunder for any
amounts in excess of the discount, commission or other compensation payable to
such underwriter, selling agent or other securities professional with respect to
the Registrable Securities underwritten by it and distributed to the public.
(f) Other Liabilities. The obligations of the Company and the Trust
under this Section 5 shall be in addition to any liability which the Company and
the Trust may otherwise have to any Indemnified Person and the obligations of
any Indemnified Person under this Section 5 shall be in addition to any
liability which such Indemnified Person may otherwise have and shall extend,
upon the same terms and conditions, to each officer and director of the Company,
each Company Trustee of the Trust and to each person, if any, who controls the
Trust and the Company within the meaning of the Act. The remedies provided in
this Section 5 are not exclusive and shall not limit any rights or
remedies which may otherwise be available to an indemnified party at law or in
equity.
6. UNDERWRITTEN OFFERING. Any Electing Holder of Registrable Securities who
desires to do so may sell Registrable Securities (in whole or in part) in an
underwritten offering; provided that (a) the Holders of at least a majority in
aggregate principal amount of the outstanding Registrable Securities shall
request such an offering and (b) at least such aggregate principal amount of
such Registrable Securities shall be included in such offering; and, provided
further, that the Company shall not be obligated to cooperate with more than one
underwritten offering during the Effectiveness Period. Upon receipt of such a
request, the Company and the Trust shall provide all Holders of Registrable
Securities written notice of the request, which notice shall inform such Holders
that they have the opportunity to participate in the offering. In any such
underwritten offering, the investment bank or banks and manager or managers that
will administer the offering will be selected by, and the underwriting
arrangements with respect thereto (including, subject to clause (b) above, the
size of the offering) will be approved by the Holders of a majority of the
Registrable Securities to be included in such offering; provided, however, that
such investment bankers and managers and underwriting arrangements must be
reasonably satisfactory to the Company and the Trust. No Holder may participate
in any underwritten offering contemplated hereby unless (a) such Holder agrees
to sell such Holder's Registrable Securities to be included in the underwritten
offering in accordance with any approved underwriting arrangements, (b) such
Holder completes and executes all reasonable questionnaires, powers of attorney,
indemnities, underwriting agreements, lock-up letters and other documents
required under the terms of such approved underwriting arrangements, and (c) if
such Holder is not then an Electing Holder, such Holder returns a completed and
signed Notice and Questionnaire to the Company and the Trust in accordance with
Section 3(a)(2) (but in no event later than 10 days prior to commencement of the
underwritten offering) and provides to the Trust and the Company, in writing,
any information with respect to such Holder or the Registrable Securities held
by such Holder as is, in the reasonable opinion of counsel to use such
Prospectus for resales of such Registrable Securities, each within a reasonable
amount of time before such underwritten offering. The Holders participating in
any underwritten offering shall be responsible for any underwriting discounts
and commissions and fees and, subject to Section 4, expenses of their own
counsel. The Company and the Trust shall pay all expenses customarily borne by
issuers, including but not limited to filing fees, the fees and disbursements of
its counsel and independent public accountants and any printing expenses
incurred in connection with such underwritten offering. Notwithstanding the
foregoing or the provisions of Section 3(n), upon receipt of a request from the
Managing Underwriter or a representative of Holders of a majority of the
Registrable Securities to be included in an underwritten offering to prepare and
file an amendment or supplement to the Shelf Registration Statement and
Prospectus in connection with an underwritten offering, the Company and the
Trust may delay the filing of any such amendment or supplement for up to 90 days
if the Board of Directors of the Company shall have determined in good faith
that the Company has a bona fide business reason for such delay.
7. MISCELLANEOUS.
(a) Other Registration Rights. The Company may grant
registration rights that would permit any Person that is a third party the
right to piggyback on any Shelf
Registration Statement, provided that if the Managing Underwriter of any
underwritten offering conducted pursuant to Section 6 notifies the Company and
the Electing Holders that the total amount of securities which the Electing
Holders and the holders of such piggyback rights intend to include in any Shelf
Registration Statement is so large as to materially threaten the success of such
offering (including the price at which such securities can be sold), then the
amount, number or kind of securities to be offered for the account of holders of
such piggyback rights will be reduced to the extent necessary to reduce the
total amount of securities to be included in such offering to the amount, number
and kind recommended by the Managing Underwriter prior to any reduction in the
amount of Registrable Securities to be included in such Shelf Registration
Statement; provided, however, that if the holders of piggyback registration
rights intend to include shares in any Shelf Registration Statement held by
persons granted registration rights under that certain Registration Rights
Agreement, dated as of August 14, 1996, by and between the Company and the
shareholders identified therein (the "1996 Agreement") or that certain Asset
Sale Agreement by and between Wellington Capital Limited and the Company, dated
May 14, 1997 (the "GMMOS Agreement"), the inclusion of such shares in the Shelf
Registration Statement by such persons shall be subject to the provisions of
Section 3(d) of the 1996 Agreement and the provisions of Section 3.4(b) of the
GMMOS Agreement, as applicable.
(b) Amendments and Waivers. This Agreement, including this Section
7(b), may be amended, and waivers or consents to departures from the provisions
hereof may be given, only by a written instrument duly executed by the Company
and the Holders of a majority in aggregate principal amount of Registrable
Securities then outstanding. Each Holder of Registrable Securities outstanding
at the time of any such amendment, waiver or consent or thereafter shall be
bound by any amendment, waiver or consent effected pursuant to this Section
7(b), whether or not any notice, writing or marking indicating such amendment,
waiver or consent appears on the Registrable Securities or is delivered to such
Holder.
(c) Notices. All notices and other communications provided for or
permitted hereunder shall be made in writing by hand-deliver, first-class mail,
telex, telecopier, or air courier guaranteeing overnight delivery:
(i) if to a Holder, at such address set forth on the
record books of the Company or the Trust, as the case may be;
(ii) if to the Purchasers, initially at the address set
forth in the Purchase Agreement; and
(iii) if to the Company or the Trust, initially at its address
set forth in the Purchase Agreement.
All such notices and communications shall be deemed to have duly given when
received. The Purchasers or the Company and the Trust by notice to the other may
designate additional or different addresses for subsequent actions or
communications.
(d) Parties in Interest. The parties to this Registration Rights
Agreement intend that all Holders of Registrable Securities shall be entitled to
receive the benefits
of this Registration Rights Agreement and that any Electing Holder shall be
bound by the terms and provisions of this Registration Rights Agreement by
reason of such election with respect to the Registrable Securities which are
included in a Shelf Registration Statement. All the terms and provisions of this
Registration Rights Agreement shall be binding upon, shall inure to the benefit
of and shall be enforceable by the respective successors and assigns of the
parties hereto and any Holder from time to time of the Registrable Securities to
the aforesaid extent. In the event that any transferee of any Holder of
Registrable Securities shall acquire Registrable Securities, in any manner,
whether by gift, bequest, purchase, operation of law or otherwise, such
transferee shall, without any further writing or action of any kind, be entitled
to receive the benefits of and, if an Electing Holder, be conclusively deemed to
have agreed to be bound by and to perform all of the terms and provisions of
this Registration Rights Agreement to the aforesaid extent.
(e) Counterparts. This Registration Rights agreement may be executed in
any number of counterparts and by the parties hereto in separate counterparts,
each of which when so executed shall be deemed to be an original and all of
which taken together shall constitute one and the same agreement.
(f) Headings. The headings in this Registration Rights Agreement are
for convenience of reference only and shall not limit or otherwise affect the
meaning hereof.
(g) Governing Law. This Registration Rights Agreement shall be governed
by and construed in accordance with the laws of the State of New York, without
giving effect to any provisions relating to conflicts of laws.
(h) Severability. In the event that any one or more of the provisions
contained herein, or the application thereof in any circumstances, is held
invalid, illegal or unenforceable in any respect for any reason, the validity,
legality and enforceability of any such provision in every other respect and of
the remaining provisions hereof shall not be in any way impaired or affected
thereby, it being intended that all of the rights and privileges of the parties
hereto shall be enforceable to the fullest extent permitted by law.
Please confirm that the foregoing correctly sets forth the agreement among
the Company, the Trust and you.
Very truly yours,
HVIDE CAPITAL TRUST
By:
Name:
Title:
HVIDE MARINE INCORPORATED
By:
Name:
Title:
The foregoing Registration Rights Agreement is hereby confirmed and accepted as
of the date first above written.
XXXXXXXXX, XXXXXX & XXXXXXXX
SECURITIES CORPORATION
HOWARD, WEIL, LABOUISSE, XXXXXXXXXX INCORPORATED
XXXXXXX XXXXX & ASSOCIATES, INC.
By: Xxxxxxxxx, Lufkin & Xxxxxxxx
Securities Corporation
By:
Name:
Title:
On behalf of each of the Purchasers
