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WARRANT AGREEMENT
THIS WARRANT AGREEMENT dated as of October ___, 1997, between
TRANSCOASTAL MARINE SERVICES, INC., a Delaware corporation (the "Company"), and
JOINT ENERGY DEVELOPMENT INVESTMENTS, Limited Partnership, a limited partnership
organized under the laws of the state of Delaware ("Purchaser" and, together
with any transferee of Warrants or Warrant Shares, the "Warrant Holders(s)").
WHEREAS, Company and the Purchaser have entered into a certain
Subordinated Credit Agreement (the "Credit Agreement") dated of even date
herewith; and
WHEREAS, the Company proposes to issue to Purchaser for a purchase
price of $1,750.00 common stock purchase warrants (the "Warrants") to purchase
up to 175,000 shares (the "Warrant Shares"), of the Company's common stock, par
value $.001 per share (the "Common Stock"), each Warrant entitling the holder
thereof to purchase one Ordinary Share.
NOW, THEREFORE, in consideration of the premises and the mutual
agreements herein set forth and for other good and valuable consideration, the
parties hereto agree as follows:
1. ISSUANCE OF WARRANTS; FORM OF WARRANT. The Company will issue and
deliver the Warrants to Purchaser, or to an affiliate thereof designated by
Purchaser, on the Closing Date referred to in the Credit Agreement (the "Closing
Date") for an aggregate purchase price of $1,750.00. The aggregate number of
Warrants to be issued and delivered shall be 175,000. The Warrants shall be
exercisable in full or from time to time in part on or after the Closing Date.
The text of each Warrant, the purchase form and each assignment form to be
printed on the reverse thereof shall be substantially as set forth in the
Warrant Certificate attached as Exhibit A hereto. The Warrants shall be executed
on behalf of the Company by the manual or facsimile signature of the present or
any future Chairman of the Board, President or Chief Financial Officer of the
Company, attested by the manual or facsimile signature of the present or future
Secretary or an Assistant Secretary of the Company. A Warrant bearing the manual
or facsimile signature of individuals who were at any time the proper officers
of the Company shall bind the Company notwithstanding that such individuals or
any of them shall have ceased to hold such offices prior to the delivery of such
Warrant or did not hold such offices on the date of this Warrant Agreement.
Warrants shall be dated as of the date of execution thereof by the
Company either upon initial issuance or upon division, exchange, substitution or
transfer.
2. REPRESENTATIONS AND WARRANTIES OF THE COMPANY. The Company hereby
represents and warrants as follows:
(A) POWER AND AUTHORITY. The Company has all requisite
corporate power and authority, and has taken all corporate action
necessary, to execute, deliver and perform this Warrant Agreement, to
grant, issue and deliver the Warrants and to authorize and reserve for
Exhibit B-1
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issuance and, upon payment from time to time of the Exercise Price, to
issue and deliver the shares of Common Stock or other securities
issuable upon exercise of the Warrants. This Warrant Agreement has been
duly executed and delivered by the Company.
(B) RESERVATION, ISSUANCE AND DELIVERY OF COMMON STOCK. There
have been reserved for issuance, and the Company shall at all times
keep reserved, out of the authorized and unissued shares of Common
Stock, a number of shares sufficient to provide for the exercise of the
rights of purchase represented by the Warrants, and such shares, when
issued upon receipt of payment therefor or upon a net exercise in
accordance with the terms of the Warrants and of this Warrant
Agreement, will be legally and validly issued, fully paid and
non-assessable and will be free of any preemptive rights of
shareholders or any restrictions.
3. CONDITIONS TO PURCHASE. Purchaser's obligations hereunder shall be
subject to satisfaction of the following conditions on the Closing Date referred
to in the Credit Agreement:
(a) All corporate proceedings and other legal matters incident
to the authorization, form and validity of this Warrant Agreement and
the Warrants and all other legal matters relating to this Warrant
Agreement, the Warrants and the transactions contemplated hereby shall
be satisfactory in all respects to Xxxxxx & Xxxxxx L.L.P., counsel for
Purchaser, in their reasonable judgment, and the Company shall have
furnished to such counsel all documents and information that they may
reasonably request to enable them to pass judgment upon such matters.
(b) There shall have been duly tendered to Purchaser or upon
the order of Purchaser a certificate or certificates representing the
Warrants.
(c) Each of the "Conditions Precedent" set forth in Article VI
of the Credit Agreement shall have been satisfied.
4. REGISTRATION. The Warrants shall be numbered and shall be registered
on the books of the Company (the "Warrant Register") as they are issued. The
Warrants shall be registered initially in such names and such denominations as
Purchaser has specified to the Company.
5. EXCHANGE OF WARRANT CERTIFICATES. Subject to any restriction upon
transfer set forth in this Warrant Agreement, each Warrant certificate may be
exchanged at the option of the Warrant Holder thereof for another certificate or
certificates of different denominations entitling the Warrant Holder thereof to
purchase upon surrender to the Company or its duly authorized agent a like
aggregate number of Warrant Shares as the certificate or certificates
surrendered then entitle such Warrant Holder to purchase. Any Warrant Holder
desiring to exchange a Warrant certificate or certificates shall make such
request in writing delivered to the Company, and shall surrender, properly
endorsed, the certificate or certificates to be so exchanged. Thereupon, the
Company shall execute and deliver to the person entitled thereto a new Warrant
certificate or certificates, as the case may be, as so requested. Any Warrant
issued upon exchange, transfer or partial exercise of the
Exhibit B-2
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Warrants shall be the valid obligation of the Company, evidencing the same
generic rights and entitled to the same generic benefits under this Warrant
Agreement as the Warrants surrendered for such exchange, transfer or exercise.
6. TRANSFER OF WARRANTS.
Subject to the provisions of Section 14 hereof, the Warrants shall be
transferrable only on the Warrant Register upon delivery to the Company of the
Warrant certificate or certificates duly endorsed by the Warrant Holder or by
his duly authorized attorney-in-fact or legal representative, or accompanied by
proper evidence of succession, assignment or authority to transfer. In all cases
of transfer by an attorney-in-fact, the original power of attorney, duly
approved, or an official copy thereof, duly certified, shall be deposited with
the Company. In case of transfer by executors, administrators, guardians or
other legal representatives, duly authenticated evidence of their authority
shall be produced, and may be required to be deposited with the Company in its
discretion. Upon any registration of transfer, the Company shall deliver a new
Warrant or Warrants to the person entitled thereto.
7. TERM OF WARRANTS; EXERCISE OF WARRANTS.
(a) Each Warrant entitles the Warrant Holder thereof to purchase one
share of Common Stock during the time period and subject to the conditions set
forth in the respective Warrant Certificates at an exercise price of $_____ per
share, subject to adjustment in accordance with Section 12 hereof (the "Exercise
Price"). Each Warrant terminates on the fifth anniversary of the Closing Date
(the "Expiration Date").
(b) The Exercise Price and the number of shares issuable upon exercise
of Warrants are subject to adjustment upon the occurrence of certain events,
pursuant to the provisions of Section 12 of this Warrant Agreement. Subject to
the provisions of this Warrant Agreement, each Warrant Holder shall have the
right, which may be exercised as expressed in such Warrants, to purchase from
the Company (and the Company shall issue and sell to such Warrant Holder) the
number of fully paid and nonassessable shares of Common Stock specified in such
Warrants, upon surrender to the Company, or its duly authorized agent, of such
Warrants, and upon payment to the Company of the Exercise Price, as adjusted in
accordance with the provisions of Section 12 of this Warrant Agreement or upon a
net exercise pursuant to this subsection of this Warrant Agreement, for the
number of shares in respect of which such Warrants are then exercised. The
Warrant Holder may (i) pay the Exercise Price in cash, by certified or official
bank check payable to the order of the Company, or by the surrender to the
Company of securities of the Company having a Market Price equal to the Exercise
Price or by the surrender to the Company of indebtedness owed by the Company
pursuant to the Credit Agreement (in which case the Company will accept such
specified unpaid principal amount in full payment, as if such payment had been
made in cash) or (ii) make an exercise of Warrants for "Net Warrant Shares." The
number of Net Warrant Shares will be determined as described by the following
formula: Net Warrant Shares = [WS x (MP-EP)]/MP. "WS" is the number of Warrant
Shares issuable upon exercise of the Warrants or portion of Warrants
Exhibit B-3
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in question. "MP" is the Market Price of the Common Stock on the last trading
day preceding the date of the request to exercise the Warrants. "Market Price"
shall mean the then current market price per share of Common Stock, as
determined in paragraph 12.1(e). "EP" shall mean the Exercise Price.
Upon such surrender of Warrants, and payment of the Exercise Price,
with cash or securities, or upon a net exercise as aforesaid, the Company at its
expense shall issue and cause to be delivered with all reasonable dispatch to or
upon the written order of the Warrant Holder and in such name or names as the
Warrant Holder may designate, a certificate or certificates for the number of
full shares of Common Stock so purchased upon the exercise of such Warrants,
together with cash, as provided in Section 12 of this Warrant Agreement, in
respect of any fraction of a share of such stock otherwise issuable upon such
surrender. Such certificate or certificates shall be deemed to have been issued,
and any person so designated to be named therein shall be deemed to have become
a holder of record of such shares, as of the date of the surrender of such
Warrants and payment of the Exercise Price or receipt of shares by net exercise
as aforesaid. The rights of purchase represented by the Warrants shall be
exercisable, at the election of the Warrant Holders thereof, either in full or
from time to time in part and, in the event that any Warrant is exercised in
respect of less than all of the shares purchasable on such exercise at any time
prior to the Expiration Date, a new certificate evidencing the remaining Warrant
or Warrants will be issued.
8. COMPLIANCE WITH GOVERNMENT REGULATIONS. The Company covenants that
if any share of Common Stock required to be reserved for purposes of exercise or
conversion of Warrants require, under any U.S. federal or state or other law or
applicable governing rule or regulation of any securities exchange, registration
with or approval of any governmental authority, or listing on any such
securities exchange, before such shares may be issued upon exercise, the Company
will use its best efforts to cause such shares to be duly registered, approved
or listed on the relevant national securities exchange, as the case may be.
9. PAYMENT OF TAXES. The Company will pay all documentary stamp taxes,
if any, attributable to the initial issuance of Warrant Shares upon the exercise
of Warrants and any securities issued pursuant to Section 12 hereof; provided,
however, that the Company shall not be required to pay any tax or taxes which
may be payable in respect of any transfer involved in the issue or delivery of
any Warrants or certificates for Warrant Shares and any securities issued
pursuant to Section 12 hereof in a name other than that of the Warrant Holder of
such Warrants.
10. MUTILATED OR MISSING WARRANTS. In case any of the Warrants shall be
mutilated, lost, stolen or destroyed, the Company shall issue and deliver in
exchange and substitution for and upon cancellation of the mutilated Warrant, or
in lieu of and in substitution for the Warrant lost, stolen or destroyed, a new
Warrant of like tenor and representing an equivalent right or interest.
11. RESERVATION OF WARRANT SHARES; PURCHASE AND CANCELLATION OF
WARRANTS. The Company shall at all times reserve, out of the authorized and
unissued shares of Common Stock, a number of shares sufficient to provide for
the exercise of the rights of purchase represented by the
Exhibit B-4
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Warrants, and the transfer agent for the Common Stock ("Transfer Agent") and
every subsequent transfer agent for any shares of the Company's capital stock
issuable upon the exercise of any of the rights of purchase aforesaid are hereby
irrevocably authorized and directed at all times until the Expiration Date to
reserve such number of authorized and unissued shares as shall be requisite for
such purpose. The Company will keep a copy of this Warrant Agreement on file
with the Transfer Agent and with every subsequent transfer agent for any shares
of the Company's capital stock issuable upon the exercise of the rights of
purchase represented by the Warrants. The Company will supply the Transfer Agent
and any such subsequent transfer agent with duly executed stock certificates for
such purpose and will itself provide or otherwise make available any cash which
may be issuable as provided by Section 13 of this Warrant Agreement. The Company
will furnish to the Transfer Agent and any such subsequent transfer agent a copy
of all notices of adjustments, and certificates related thereto, transmitted to
each Warrant Holder pursuant to Section 12.3 hereof. All warrants surrendered in
the exercise of the rights thereby evidenced shall be canceled, and such
canceled Warrants shall constitute sufficient evidence of the number of shares
of stock which have been issued upon the exercise of such Warrants (subject to
adjustment as herein provided). No shares of stock shall be subject to
reservation in respect of the Warrants subsequent to the Expiration Date except
to the extent necessary to comply with the terms of this Warrant Agreement.
12. ADJUSTMENT OF EXERCISE PRICE AND NUMBER OF WARRANT SHARES. The
number and kind of securities purchasable upon the exercise of each Warrant and
the Exercise Price shall be subject to adjustment from time to time upon the
occurrence of certain events, as hereafter defined.
12.1. MECHANICAL ADJUSTMENTS. The number of Warrant Shares
purchasable upon the exercise of each Warrant and the Warrant Price
shall be subject to adjustment as follows:
(a) In case the Company shall (i) pay a dividend to
holders of Common Stock in shares of Common Stock or make a
distribution to holders of Common Stock in shares of Common
Stock, (ii) subdivide its outstanding shares of Common Stock
into a larger number of shares of Common Stock, (iii) combine
its outstanding shares of Common Stock into a smaller number
of shares of Common Stock or (iv) issue by reclassification of
its shares of Common Stock other securities of the Company
(including any such reclassification in connection with a
consolidation or merger in which the Company is the surviving
corporation), the number of Warrant Shares purchasable upon
exercise of each Warrant immediately prior thereto shall be
adjusted so that the Warrant Holder shall be entitled to
receive the kind and number of Warrant Shares or other
securities of the Company which he would have owned or have
been entitled to receive after the happening of any of the
events described above, had such Warrant been exercised
immediately prior to the happening of such event or any record
date with respect thereto. An adjustment made pursuant to this
paragraph (a) shall become effective immediately after the
effective date of such event retroactive to the record date,
if any, for such event.
Exhibit B-5
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(b) In case the Company shall issue rights, options
or warrants to holders of its outstanding Common Stock,
without any charge to such holders, entitling them to
subscribe for or purchase shares of Common Stock at a price
per share which is lower at the record date mentioned below
than the greater of (a) the Exercise Price or (b) the then
current market price per share of Common Stock (as determined
in accordance with paragraph (e) below) (the "Greater Price"),
then in each such case the number of Warrant Shares thereafter
purchasable upon the exercise of each Warrant shall be
determined by multiplying the number of Warrant Shares
theretofore purchasable upon exercise of each Warrant by a
fraction, of which the numerator shall be the number of shares
of Common Stock outstanding on the date of issuance of such
rights, options or warrants plus the number of additional
shares of Common Stock offered for subscription or purchase,
and of which the denominator shall be the number of shares of
Common Stock outstanding on the date of issuance of such
rights, options or warrants plus the number of shares which
the aggregate offering price of the total number of shares of
common stock so offered would purchase at the Greater Price.
Such adjustment shall be made whenever such rights, options or
warrants are issued, and shall become effective immediately
after the record date for the determination of stockholders
entitled to receive such rights, options or warrants.
(c) In case the Company shall distribute to holders
of its shares of Common Stock evidences of its indebtedness or
assets (including cash dividends or other cash distributions)
or rights, options or warrants, or convertible or exchangeable
securities containing the right to subscribe for or purchase
shares of Common Stock (excluding those referred to in
paragraph (b) above), then in each case the number of Warrant
Shares thereafter purchasable upon the exercise of each
Warrant shall be determined by multiplying the number of
Warrant Shares theretofore purchasable upon the exercise of
each Warrant by a fraction, of which the numerator shall be
the then current market price per share of Common Stock (as
determined in accordance with paragraph (e) below) on the date
of such distribution, and of which the denominator shall be
the then current market price per share of Common Stock, less
the then fair value (as determined in good faith by the Board
of Directors of the Company) of the portion of the assets or
evidences of indebtedness so distributed or of such
subscription rights, options or warrants, or of such
convertible or exchangeable securities applicable to one share
of Common Stock. Such adjustment shall be made whenever any
such distribution is made, and shall become effective on the
date of distribution retroactive to the record date for the
determination of stockholders entitled to receive such
distribution.
In the event of distribution by the Company to
holders of its shares of Common Stock of stock of a subsidiary
or securities convertible into or exercisable for such stock,
then in lieu of an adjustment in the number of Warrant Shares
purchasable upon the exercise of each Warrant, the Warrant
Holder, upon the
Exhibit B-6
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exercise thereof at any time after such distribution, shall be
entitled to receive from the Company, such subsidiary or both,
as the Company shall determine, the stock or other securities
to which such Warrant Holder would have been entitled if such
Warrant Holder had exercised such Warrant immediately prior
thereto, all subject to further adjustment as provided in this
subsection 12.1; provided, however, that no adjustment in
respect of dividends or interest on such stock or other
securities shall be made during the term of a Warrant or upon
the exercise of a Warrant.
(d) In case the Company shall sell and issue shares
of Common Stock (other than pursuant to rights, options,
warrants, or convertible securities initially issued before
the date of this Agreement) or rights, options, warrants or
convertible securities containing the right to subscribe for
or purchase shares of Common Stock (excluding shares, rights,
options, warrants or convertible securities issued in any of
the transactions described in paragraphs (a), (b) or (c)
above) at a price per share of Common Stock (determined, in
the case of such rights, options, warrants, or convertible
securities, by dividing (w) the total of the amount received
or receivable by the Company (determined as provided below) in
consideration of the sale and issuance of such rights,
options, warrants or convertible securities, by (x) the total
number of shares of Common Stock covered by such rights,
options, warrants or convertible securities) lower than the
Greater Price in effect immediately prior to such sale and
issuance, then the number of Warrant Shares thereafter
purchasable upon the exercise of the Warrants shall be
determined by multiplying the number of Warrant Shares
theretofore purchasable upon exercise by a fraction, of which
the numerator shall be the number of shares of Common Stock
outstanding on the date of issuance of such shares, rights,
options, warrants or convertible securities plus the number of
additional shares of Common Stock sold or subject to issuance
pursuant to such rights, options, warrants or convertible
securities, and of which the denominator shall be the number
of shares of Common Stock outstanding on the date of issuance
of such shares, rights, options, warrants or convertible
securities plus the number of shares of Common Stock which the
aggregate consideration received or receivable (determined as
provided below) for such sale or issuance would purchase at
the Greater Price. Such adjustment shall be made successively
whenever such an issuance is made. For the purposes of such
adjustments, the consideration received or receivable by the
Company for rights, options, warrants or convertible
securities shall be deemed to be the consideration received by
the Company for such rights, options, warrants or convertible
securities, plus the minimum consideration or premiums stated
in such rights, options, warrants or convertible securities to
be paid for the shares of Common Stock covered thereby. In
case the Company shall sell and issue shares of Common Stock,
or rights, options, warrants or convertible securities
containing the right to subscribe for or purchase shares of
Common Stock, for a consideration consisting, in whole or in
part, of property other than cash or its equivalent, then in
determining the "price per share of Common Stock" and the
"consideration received or receivable by the Company" for
purposes of the first
Exhibit B-7
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sentence of this paragraph (d), the Board of Directors shall
determine, in good faith, the fair value of said property.
(e) For the purpose of any computation under
paragraphs (b), (c) and (d) of this Section, the current
market price per share of Common Stock at any date shall be
the average of the daily closing prices of the Company's
Common Stock, for [the 20 consecutive trading days ending on
the trading day prior to the date of such computation]. The
closing price for each day shall be the last such reported
sales price regular way or, in case no such reported sale
takes place on such day, the average of the closing bid and
asked prices regular way for such day, in each case on the
principal national securities exchange on which the shares of
Common Stock are listed or admitted to trading or, if not
listed or admitted to trading, the average of the closing bid
and asked prices of the Common Stock in the over-the-counter
market as reported by NASDAQ or any comparable system. In the
absence of one or more such quotations, the Board of Directors
of the Company shall determine the current market price, in
good faith, on the basis of such quotations as it considers
appropriate. Notwithstanding the foregoing, for the purpose of
any calculation under paragraph (d) above with respect to any
issuance of options under the Company's employee or director
compensation stock option plans as in effect or as adopted by
the Board of Directors of the Company on the date hereof, the
term "current market price", in such instances, shall mean the
fair market price on the date of the issuance of any such
option determined in accordance with the Company's employee
compensation stock option plans as in effect or adopted by the
Board of Directors of the Company on the date hereof.
(f) In any case in which this Section 12.1 shall
require that any adjustment in the number of Warrant Shares be
made effective as of immediately after a record date for a
specified event, the Company may elect to defer until the
occurrence of the event the issuing to the holder of any
Warrant exercised after that record date the shares of Common
Stock and other securities of the Company, if any, issuable
upon the exercise of any Warrant over and above the shares of
Common Stock and other securities of the Company, if any,
issuable upon the exercise of any Warrant prior to such
adjustment; provided, however, that the Company shall deliver
to such Warrant Holder a due xxxx or other appropriate
instrument evidencing the holder's right to receive such
additional shares or securities upon the occurrence of the
event requiring such adjustment.
(g) No adjustment in the number of Warrant Shares
purchasable hereunder shall be required unless such adjustment
would require an increase or decrease of at least one percent
(1%) in the number of Warrant Shares purchasable upon the
exercise of each Warrant; provided, however, that any
adjustments which by reason of this paragraph (g) are not
required to be made shall be carried forward
Exhibit B-8
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and taken into account in any subsequent adjustment. All
calculations shall be made to the nearest one-thousandth of
a share.
(h) Whenever the number of Warrant Shares purchasable
upon the exercise of each Warrant is adjusted, as herein
provided, the Warrant Price payable upon the exercise of each
Warrant shall be adjusted by multiplying such Warrant Price
immediately prior to such adjustment by a fraction, of which
the numerator shall be the number of Warrant Shares
purchasable upon the exercise of such Warrant immediately
prior to such adjustment, and of which the denominator shall
be the number of Warrant Shares purchasable immediately after
such adjustment.
(i) No adjustment in the number of Warrant Shares
purchasable upon the exercise of each Warrant need be made
under paragraphs (b), (c) and (d) if the Company issues or
distributes to each Warrant Holder the rights, options,
warrants, or convertible or exchangeable securities, or
evidences of indebtedness or assets referred to in those
paragraphs which each Warrant Holder would have been entitled
to receive had the Warrants been exercised prior to the
happening of such event or the record date with respect
thereto.
(j) For the purpose of this Section 12.1, the terms
"shares of Common Stock" shall mean (i) the class of stock
designated as the Common Stock of the Company at the date of
this Agreement, or (ii) any other class of stock resulting
from successive changes or reclassifications of such shares
consisting solely of changes in par value, or from par value
to no par value, or from no par value to par value. In the
event that at any time, as a result of an adjustment made
pursuant to paragraph (a) above, the Warrant Holders shall
become entitled to purchase any securities of the Company
other than shares of Common Stock, thereafter the number of
such other securities so purchasable upon exercise of each
Warrant and the Exercise Price of such securities shall be
subject to adjustment from time to time in a manner and on
terms as nearly equivalent as practicable to the provisions
with respect to the Warrant Shares contained in paragraphs (a)
through (i), inclusive, above, and the provisions of Section 7
and Section 12.2 through 12.5, inclusive, with respect to the
Warrant Shares, shall apply on like terms to any such other
securities.
(k) Upon the expiration of any rights, options,
warrants or conversion or exchange privileges, if any thereof
shall not have been exercised, the Warrant Price and the
number of shares of Common Stock purchasable upon the exercise
of each warrant shall, upon such expiration, be readjusted and
shall thereafter be such as it would have been had it been
originally adjusted (or had the original adjustment not been
required, as the case may be) as if (A) the only shares of
Common Stock so issued were the shares of Common Stock, if
any, actually issued or sold upon the exercise of such rights,
options, warrants or conversion or exchange rights and (B)
such shares of Common Stock, if any, were issued or sold for
the consideration
Exhibit B-9
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actually received by the Company upon such exercise plus the
aggregate consideration, if any, actually received by the
Company for the issuance, sale or grant of all such rights,
options, warrants or conversion or exchange rights whether or
not exercised; provided, however, that no such readjustment
shall have the effect of increasing the Warrant Price or
decreasing the number of Warrant Shares by an amount in excess
of the amount of the adjustment initially made with respect to
the issuance, sale or grant of such rights, options, warrants
or conversion or exchange rights.
12.2. VOLUNTARY ADJUSTMENT BY THE COMPANY. The Company may, at
its option, at any time during the term of the Warrants, reduce the
then current Exercise Price to any amount determined appropriate by the
Board of Directors of the Company.
12.3. NOTICE OF ADJUSTMENT. When the number of Warrant Shares
purchasable upon the exercise of each Warrant or the Exercise Price of
such Warrant Shares is adjusted, as herein provided, the Company shall
promptly mail by first class, postage prepaid, to each Warrant Holder
notice of such adjustment or adjustments and a certificate of a firm of
independent public accountants selected by the Board of Directors of
the Company (who may be the regular accountants employed by the
Company) setting forth the number of Warrant Shares purchasable upon
the exercise of each Warrant and the Exercise Price of such Warrant
Shares after such adjustment and setting forth a brief statement of the
facts requiring such adjustment and setting forth the computation by
which such adjustment was made. Such certificate, absent manifest
error, shall be conclusive evidence of the correctness of such
adjustment.
12.4. PRESERVATION OF PURCHASE RIGHTS UPON MERGER,
CONSOLIDATION, ETC. In case of any consolidation of the Company with or
merger of the Company into another person or in case of any sale,
transfer or lease to another person of all of or substantially all the
assets of the Company, the Company or such successor or purchaser, as
the case may be, shall execute with each Warrant Holder an agreement
that each Warrant Holder shall have the right thereafter upon payment
of the Exercise Price in effect immediately prior to such action to
purchase upon exercise of each Warrant the kind and amount of shares
and other securities and property which the Warrant Holder would have
owned or have been entitled to receive after the happening of such
consolidation, merger, sale, transfer or lease had such Warrant been
exercised immediately prior to such action. Such agreement shall
provide for adjustments, which shall be as nearly equivalent as may be
practicable to the adjustments provided for in this Section 12. The
provisions of this Section 12.4 shall similarly apply to successive
consolidations, mergers, sales, transfers or leases.
12.5. STATEMENT ON WARRANTS. Even though Warrants heretofore
or hereafter issued may continue to express the same price and number
and kind of shares as are stated in the Warrants initially issuable
pursuant to this Warrant Agreement; the parties understand and agree
that such Warrants will represent rights consistent with any
adjustments in the
Exhibit B-10
11
Exercise Price or the number or kind of shares purchasable upon the
exercise of the Warrants.
13. FRACTIONAL INTERESTS. The Company shall not be required to issue
fractional Warrant Shares on the exercise of Warrants. If more than one Warrant
shall be presented for exercise in full at the same time by the same Warrant
Holder, the number of full Warrant Shares which shall be issuable upon the
exercise thereof shall be computed on the basis of the aggregate number of
Warrant Shares purchasable on exercise of the Warrants so presented. If any
fraction of a Warrant Share would, except for the provisions of this Section 13,
be issuable on the exercise of any Warrant (or specified portion, thereof), the
Company shall pay an amount in cash equal to the closing price for one share of
the Common Stock on the trading day immediately preceding the date the Warrant
is presented for exercise, multiplied by such fraction.
14. REGISTRATION UNDER THE SECURITIES ACT OF 1933. Purchaser represents
and warrants to the Company that it will not dispose of the Warrant or Warrant
Shares except pursuant to (i) an effective registration statement, or (ii) an
applicable exemption from registration under the Securities Act of 1933 (the
"Act"). In connection with any sale by Purchaser pursuant to clause (ii) of the
preceding sentence, it shall furnish to the Company an opinion of counsel
reasonably satisfactory to the Company to the effect that such exemption from
registration is available in connection with such sale.
15. CERTIFICATE TO BEAR LEGENDS. The Warrants shall be subject to a
stop-transfer order and the certificate or certificates therefor shall bear the
following legend by which each Warrant Holder shall be bound:
"THE WARRANTS REPRESENTED BY THIS CERTIFICATE AND THE SHARES OF COMMON
STOCK OR OTHER SECURITIES ISSUABLE UPON EXERCISE THEREOF MAY NOT BE
OFFERED OR SOLD EXCEPT PURSUANT TO (I) AN EFFECTIVE REGISTRATION
STATEMENT, OR (II) AN APPLICABLE EXEMPTION FROM REGISTRATION UNDER THE
SECURITIES ACT OF 1933. ANY SALE PURSUANT TO CLAUSE (II) OF THE
PRECEDING SENTENCE MUST BE ACCOMPANIED BY AN OPINION OF COUNSEL
REASONABLY SATISFACTORY TO THE COMPANY TO THE EFFECT THAT SUCH
EXEMPTION FROM REGISTRATION IS AVAILABLE IN CONNECTION WITH SUCH SALE."
The Warrant Shares or other securities issued upon exercise of the
Warrants shall, unless issued pursuant to an effective registration statement,
be subject to a stop-transfer order and the certificate or certificates
evidencing any such Warrant Shares or securities shall bear the following legend
by which the Warrant Holder thereof shall be bound:
"THE SHARES OR OTHER SECURITIES REPRESENTED BY THIS
CERTIFICATE MAY NOT BE OFFERED OR SOLD EXCEPT PURSUANT
Exhibit B-11
12
TO (I) AN EFFECTIVE REGISTRATION STATEMENT, OR (II) AN APPLICABLE
EXEMPTION FROM REGISTRATION UNDER THE SECURITIES ACT OF 1933. ANY SALE
PURSUANT TO CLAUSE (II) OF THE PRECEDING SENTENCE MUST BE ACCOMPANIED
BY AN OPINION OF COUNSEL TO THE EFFECT THAT SUCH EXEMPTION FROM
REGISTRATION IS AVAILABLE IN CONNECTION WITH SUCH SALE."
16. REGISTRATION. The following provisions govern the registration of
the Company's securities:
(a) Definitions. As used herein, the following terms have the
following meanings:
"HOLDERS" means all of the holders of Registrable Shares.
"REGISTER", "REGISTERED" and "REGISTRATION" refer to a
registration effected by filing a registration statement in
compliance with the Securities Act and the declaration or
ordering by the SEC of effectiveness of such registration
statement, or the equivalent actions under the laws of another
jurisdiction.
"REGISTRABLE SHARES" means all Common Stock issuable or issued
upon the exercise of warrants issued by the Company on October
___, 1997, for the purchase of 175,000 shares of Common Stock
, (including, without limitation, the Warrant Shares), and all
Common Stock issued by the Company in respect of all of the
foregoing shares.
(b) Incidental Registration. If the Company at any time
proposes to register any of its securities for sale by the Company or
any other person or entity, other than in a registration on Form S-4 or
Form S-8, it shall give notice to the Holders of such intention. Upon
the written request of any Holder given within twenty (20) days after
receipt of any such notice, the Company shall include in such
registration all of the Registrable Shares indicated in such request,
so as to permit the disposition of the shares so registered.
Notwithstanding any other provision of this Section 16, if the managing
underwriter advises the Company in writing that marketing factors
require a limitation of the number of shares to be underwritten, then
there shall be excluded from such registration and underwriting to the
extent necessary to satisfy such limitation, Registrable Shares (pro
rata to the respective number of Registrable Shares required by the
holders thereof to be included in the registration). In the event the
registration involves an underwriting, the rights of the Holders
hereunder shall be conditional upon the underwriter's determination as
to marketing factors requiring the limitations of such right, and the
underwriter may preclude from the offering any or all securities which
could have otherwise been included in the offering.
Exhibit B-12
13
(c) Expenses. All expenses incurred in connection with any
registration under Section 16(b) hereunder shall be borne by the
Company; provided, however, that each of the Holders participating in
such registration shall pay its pro rata portion of the fees, discounts
or commissions payable to any underwriter and the expenses of such
Holder's separate legal counsel.
(d) Indemnities. In the event of any registered offering of
Common Stock pursuant to this Section 16:
(1) The Company will indemnify and hold harmless, to
the fullest extent permitted by law, any Holder and any
underwriter for such Holder, and each person, if any, who
controls the Holder or such underwriter, from and against any
and all losses, damages, claims, liabilities, joint or
several, costs and expenses (including any amounts paid in any
settlement effected with the Company's consent) to which the
Holder or any such underwriter or controlling person may
become subject under applicable law or otherwise, insofar as
such losses, damages, claims, liabilities (or actions or
proceedings in respect thereof), costs or expenses arise out
of or are based upon (i) any untrue statement or alleged
untrue statement of any material fact contained in the
registration statement or included in the prospectus, as
amended or supplemented, or (ii) the omission or alleged
omission to state therein a material fact required to be
stated therein or necessary to make the statements therein, in
the light of the circumstances in which they are made, not
misleading, and the Company will reimburse the Holder, such
underwriter and each such controlling person of the Holder or
the underwriter, promptly upon demand, for any reasonable
legal or any other expenses incurred by them in connection
with investigating, preparing to defend or defending against
or appearing as a third-party witness in connection with such
loss, claim, damage, liability, action or proceeding;
provided, however, that the Company will not be liable in any
such case to the extent that any such loss, damage, liability,
cost or expense arises out of or is based upon an untrue
statement or alleged untrue statement or omission or alleged
omission so made in conformity with information furnished in
writing by a Holder, to such underwriter or such controlling
persons specifically for inclusion therein; provided, further,
that this indemnity shall not be deemed to relieve all
underwriter of any of its due diligence obligations; provided,
further, that the indemnity agreement contained in this
subsection 16(d)(1) shall not apply to amounts paid in
settlement of any such claim, loss, damage, liability or
action if such settlement is effected without the consent of
the Company, which consent shall not be unreasonably withheld.
Such indemnity shall remain in full force and effect
regardless of any investigation made by or on behalf of the
selling share Holder, the underwriter or any controlling
person of the sell share Holder or the underwriter, and
regardless of any sale in connection with such offering by the
selling share Holder. Such indemnity shall survive the
transfer of securities by a selling share Holder.
Exhibit B-13
14
(2) Each Holder participating in a registration
hereunder will indemnify and hold harmless the Company, any
underwriter for the Company, and each person, if any, who
controls the Company or such underwriter, from and against any
and all losses, damages, claims, liabilities, costs or
expenses (including any amounts paid in any settlement
effected with the selling share Holder's consent) to which the
Company or any such controlling person and/or any such
underwriter may become subject under applicable law or
otherwise, insofar as such losses, damages, claims,
liabilities (or actions or proceedings in respect thereof),
costs or expenses arise out of or are based on (i) any untrue
or alleged untrue statement of any material fact contained in
the registration statement or included in the prospectus, as
amended or supplemented, or (ii) the omission or the alleged
omission to state therein a material fact required to be
stated therein or necessary to make the statements therein, in
the light of the circumstances in which they were made, not
misleading, and each such Holder will reimburse the Company,
any underwriter and each such controlling person of the
Company or any underwriter, promptly upon demand, for any
reasonable legal or other expenses incurred by them in
connection with investigating, preparing to defend or
defending against or appearing as a third-party witness in
connection with such loss, claim, damage, liability, action or
proceeding; 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 so made in strict
conformity with written information furnished in a certificate
by such Holder specifically for inclusion therein. The
foregoing indemnity agreement is subject to the condition that
insofar as it relates to any such untrue statement (or alleged
untrue statement) or omission (or alleged omission) made in
the preliminary prospectus but eliminated or remedied in the
amended prospectus at the time the registration statement
becomes effective or in the Final Prospectus, such indemnity
agreement shall not inure to the benefit of the Company and
(ii) any underwriter, if a liability, claim or damage at or
prior to the time such furnishing is required by the
Securities Act; provided, further, that this indemnity shall
not be deemed to relieve any underwriter of any of its due
diligence obligations; provided, further, that the indemnity
agreement contained in this subsection 16(d)(2) shall not
apply to amounts paid in settlement of any such claim, loss,
damage, liability, or action if such settlement is effected
without the consent of the Holders, as the case may be, which
consent shall not be unreasonably withheld. In no event shall
the liability of Holder exceed the gross proceeds received by
such Holder from the offering.
(3) Promptly after receipt by an indemnified party
pursuant to the provisions of Sections 16(d)(1) or (2) of
notice of the commencement of any action involving the subject
matter of the foregoing indemnity provisions, such indemnified
party will, if a claim thereof is to be made against the
indemnifying party pursuant to the provisions of said Sections
16(d)(1) or (2), promptly notify the indemnifying party of the
commencement thereof; but the omission to notify the
indemnifying party will not relieve it from any liability
which it may have to any indemnified party
Exhibit B-14
15
otherwise than to the extent the party to be notified is
actually prejudiced thereby. In case such action is brought
against any indemnified party and it notifies the indemnifying
party of the commencement thereof, the indemnifying party
shall have the right to participate in, and, to the extent
that it may wish, jointly with any other indemnifying party
similarly notified, to assume the defense thereof with counsel
reasonably satisfactory to such indemnified party; provided,
however, that if the defendants in any action include both the
indemnified party and the indemnifying party and there is a
conflict of interests which would prevent counsel for the
indemnifying party from also representing the indemnified
party, the indemnified party or parties shall have the right
to select one separate counsel to participate in the defense
of such action on behalf of such indemnified party or parties.
After notice from the indemnifying party to such indemnified
party of its election to assume the defense thereof, the
indemnifying party will not be liable to such indemnified
party pursuant to the provisions of said Sections 16(d)(1) or
(2) for any legal or other expense subsequently incurred by
such indemnified party in connection with the defense thereof,
unless (i) the indemnified party shall have employed counsel
in accordance with the provision of the preceding sentence,
(ii) the indemnifying party shall not have employed counsel
reasonably satisfactory to the indemnified party to represent
the indemnified party within a reasonable time after the
notice of the commencement of the action and within 15 days
after written notice of the indemnified party's intention to
employ separate counsel pursuant to the previous sentence, or
(iii) the indemnifying party has authorized the employment of
counsel for the indemnified party at the expense of the
indemnifying party. No indemnifying party will consent to
entry of any judgment or enter into any settlement which does
not include as an unconditional term thereof the giving by the
claimant or plaintiff to such indemnified party of a release
from all liability in respect to such claim or litigation.
(4) If recovery is not available under the foregoing
indemnification provisions, for any reason other than as
specified therein, the parties entitled to indemnification by
the terms thereof shall be entitled to contribution to
liabilities and expenses as more fully set forth in an
underwriting agreement to be executed in connection with such
registration. In determining the amount of contribution to
which the respective parties are entitled, there shall be
considered the parties' relative knowledge and access to
information concerning the matter with respect to which the
claim was asserted, the opportunity to correct and prevent any
statement or omission, and any other equitable considerations
appropriate under the circumstances; provided that no party
shall be required to contribute an amount in excess of the
amount it would have been required to pay pursuant to the
foregoing indemnification provisions if they had been
available.
Exhibit B-15
16
(e) Obligations of the Company. Whenever required under this
Section 16 to effect the registration of any Registrable Shares, the
Company shall, as expeditiously as possible:
(1) prepare and file within the SEC a registration
statement with respect to such Registrable Shares and use its
best efforts to cause such registration statement to become
effective, and, upon the request of the Holders of a majority
of the Registrable Shares registered thereunder, keep such
registration statement effective for a period of up to nine
months or, if sooner, until the distribution contemplated in
the Registration Statement has been completed.
(2) prepare and file with the SEC such amendments and
supplements to such registration statement and the prospectus
used in connection with such registration statement as may be
necessary to comply with the provisions of the Securities Act
with respect to the disposition of all Registrable Shares
covered by such registration statement.
(3) furnish to the Holder such number of copies of a
prospectus, including a preliminary prospectus, in conformity
with the requirements of the Securities Act, and such other
documents as they may reasonably request in order to
facilitate the disposition of Registrable Shares owned by
them.
(4) in the event of any underwritten public offering,
enter into and perform its obligations under an underwriting
agreement, in usual and customary form, with the managing
underwriter of such offering. Each Holder participating in
such underwriting shall also enter into and perform its
obligations under such an agreement.
(5) notify each Holder of Registrable Shares covered
by such registration statement at any time when a prospectus
relating thereto is required to be delivered under the Act of
the happening of any event as a result of which the prospectus
included in such registration statement, as then in effect,
includes an untrue statement of a material act or omits to
state a material fact required to be stated therein or
necessary to make the statements therein not misleading in the
light of the circumstances then existing.
(6) cause all Registrable Shares registered pursuant
hereunder to be listed on each securities exchange on which
similar securities issued by the Company are then listed.
(7) provide a transfer agent and registrar for all
Registrable Shares registered pursuant hereunder and a CUSIP
number for all such Registrable Shares in each case not later
than the effective date of such registration.
Exhibit B-16
17
(8) furnish, at the request of any Holder requesting
registration of Registrable Shares pursuant to this Section,
on the date that such Registrable Shares are delivered to the
underwriters for sale in connection with a registration
pursuant to this Section 16, if such securities are being sold
through underwriters, or, if such securities are not being
sold through underwriters, on the date that the registration
statement with respect to such securities becomes effective,
(i) an opinion, dated such date, of the counsel representing
the Company for the purposes of such registration, in form and
substance as is customarily given to underwriters in an
underwritten public offering, addressed to the underwriters,
if any, and to the Holders requesting registration of
Registrable Shares and (ii) a letter dated such date, from the
independent certified public accountants of the Company, in
form and substance as is customarily given by independent
certified public accountants to underwriters in an
underwritten public offering, addressed to the underwriters,
if any, and to the Holders requesting registration of
Registrable Shares.
(f) Assignment of Registration Rights. Any of the Holders may
assign its rights to cause the Company to register Shares pursuant to
this Section 16 to a transferee of all or any part of its Registrable
Shares. The transferor shall, within 20 days after such transfer,
furnish the Company with written notice of the name and address of such
transferee and the securities with respect to which such registration
rights are being assigned.
17. NO RIGHTS AS STOCKHOLDERS; NOTICE TO WARRANT HOLDERS. Nothing
contained in this Warrant Agreement or in any of the Warrants shall be construed
as conferring upon the Warrant Holders or their transferees the right to vote or
to receive dividends or to consent or to receive notice as stockholders in
respect of any meeting of stockholders for the election of directors of the
Company or any other matter, or any rights whatsoever as stockholders of the
Company. If, however, at any time prior to the expiration of the Warrants and
prior to their exercise, any of the following events shall occur:
(a) the Company shall declare any dividend payable in any
securities upon its shares of Common Stock or make any distribution
(other than a cash dividend) to the holders of its shares of Common
Stock; or
(b) the Company shall offer to the holders of its shares of
Common Stock any additional shares of Common Stock or securities
convertible into or exchangeable for shares of Common Stock or any
right to subscribe to or purchase any thereof; or
(c) a dissolution, liquidation or winding up of the Company
(other than in connection with a consolidation, merger, sale, transfer
or lease or all or substantially all of its property, assets, and
business as an entirety) shall be proposed,
then in any one or more of said events the Company shall give notice in writing
of such event to the Warrant Holders as provided in Section 20 hereof, with such
notice to be completed at least 15 days
Exhibit B-17
18
prior to the date fixed as a record date or the date of closing the transfer
books for the determination of the stockholders entitled to such dividend,
distribution, or subscription rights, or for the determination of stockholders
entitled to vote on such proposed dissolution, liquidation or winding up. Such
notice shall specify such record date or the date of closing the transfer books,
as the case may be. Failure to provide or receive such notice or any defect
therein or in the mailing thereof shall not affect the validity of any action
taken in connection with such dividend, distribution or subscription rights, or
such proposed dissolution, liquidation or winding up.
18. NOTICES. Any notice pursuant to this Warrant Agreement to be given
or made by the holder of any Warrant or Warrant Shares to or on the Company
shall be sufficiently given or made if sent by first-class mail, postage
prepaid, addressed as follows:
TransCoastal Marine Services, Inc.
0000 Xxxxxxxxx, Xxxxx 000
Xxxxxxx, Xxxxx 00000
Attn: ______________________
Notices or demands authorized by this Warrant Agreement to be given or made to
or on the Warrant Holder of any Warrant or Warrant Shares shall be sufficiently
given or made (except as otherwise provided in this Warrant Agreement) if sent
by registered mail, return receipt requested, postage prepaid, addressed to such
Warrant Holder at the address of such Warrant Holder as shown on the Warrant
Register or the Company's Common Stock Transfer Register, as the case may be.
19. GOVERNING LAW; DISPUTES. THIS WARRANT AGREEMENT, THE WARRANTS AND
ALL RELATED DOCUMENTS SHALL BE DEEMED TO BE CONTRACTS MADE UNDER AND SHALL BE
CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK,
WITHOUT GIVING EFFECT TO PRINCIPLES OF CONFLICTS OF LAW. ANY DISPUTE HEREUNDER
OR UNDER THE WARRANTS OR RELATED DOCUMENTS SHALL BE DETERMINED EXCLUSIVELY IN
ACCORDANCE WITH SECTION 8.7 OF THE CREDIT AGREEMENT.
20. SUPPLEMENTS AND AMENDMENTS. The Company and the Warrant Holders may
from time to time supplement or amend this Warrant Agreement in order to cure
any ambiguity or to correct or supplement any provision contained herein which
may be defective or inconsistent with any other provision herein, or to make any
other provisions in regard to matters or questions arising hereunder which the
Company and the Warrant Holder may deem necessary or desirable and which shall
not be inconsistent with the provisions of the Warrants and which shall not
adversely affect the interests of the Warrant Holders. Any amendment to this
Warrant Agreement may be effected with the consent of Warrant Holders of at
least a majority of the total then outstanding Warrants (for this purpose
Warrant Shares shall be deemed to be Warrants in the proportion that Warrant
Shares are then issuable upon the exercise of Warrants); provided that, any
amendment which shall have the effect of materially adversely affecting the
interests of any Warrant Holder shall not be effective with respect to such
Warrant Holder if such Warrant Holder shall not have consented thereto.
Exhibit X-00
00
00. SURVIVAL OF REPRESENTATIONS, WARRANTIES AND COVENANTS. All
representations and warranties of the Company and all covenants and agreements
made herein shall survive the execution and delivery of this Warrant Agreement
and the Warrants and shall remain in force and effect until the Expiration Date
of all Warrants.
22. SUCCESSORS. All representations and warranties of the Company and
all covenants and agreements of this Warrant Agreement by or for the benefit of
the Company or the Warrant Holders shall bind and inure to the benefit of their
respective successors and assigns hereunder.
23. MERGER OR CONSOLIDATION OF THE COMPANY. So long as this Warrant
Agreement remains in effect, the Company will not merge or consolidate with or
into, or sell, transfer or lease all or substantially all of its property to,
any other corporation unless the successor or purchasing corporation, as the
case may be (if not the Company), shall expressly assume, by supplemental
agreement executed and delivered to the Warrant Holders, the due and punctual
performance and observance of each and every covenant and condition of this
Warrant Agreement to be performed and observed by the Company.
24. BENEFITS OF THIS WARRANT AGREEMENT. Nothing in this Warrant
Agreement shall be construed to give to any person or corporation other than the
Company and the Warrant Holders, any legal or equitable right, remedy or claim
under this Warrant Agreement, but this Warrant Agreement shall be for the sole
and exclusive benefit of the Company and the holders of the Warrants and Warrant
Shares.
25. CAPTIONS. The captions of the sections and subsections of this
Warrant Agreement have been inserted for convenience and shall have no
substantive effect.
26. COUNTERPARTS. This Warrant Agreement may be executed in any number
of counterparts, each of which so executed shall be deemed to be an original;
but such counterparts together shall constitute but one and the same instrument.
Exhibit B-19
20
IN WITNESS WHEREOF, the parties hereto have caused this Warrant
Agreement to be duly executed on the day, month and year first above written.
TRANSCOASTAL MARINE SERVICES,
INC.
By:
Name:
Title:
Exhibit X-00
00
XXXXXXXXX XXXXX ENERGY DEVELOPMENT
INVESTMENTS, LIMITED
PARTNERSHIP
By:
Name:
Title:
Exhibit B-21
22
EXHIBIT A
TO
WARRANT AGREEMENT
(FORM OF WARRANT CERTIFICATE)
THE WARRANTS REPRESENTED BY THIS CERTIFICATE AND THE COMMON STOCK OR OTHER
SECURITIES ISSUABLE UPON EXERCISE THEREOF MAY NOT BE OFFERED OR SOLD EXCEPT
PURSUANT TO (i) AN EFFECTIVE REGISTRATION STATEMENT, OR (ii) AN APPLICABLE
EXEMPTION FROM REGISTRATION UNDER THE SECURITIES ACT OF 1933. ANY SALE PURSUANT
TO CLAUSE (ii) OF THE PRECEDING SENTENCE MUST BE ACCOMPANIED BY AN OPINION OF
COUNSEL REASONABLY SATISFACTORY TO THE COMPANY TO THE EFFECT THAT SUCH EXEMPTION
FROM REGISTRATION IS AVAILABLE IN CONNECTION WITH SUCH SALE.
THE TRANSFER OR EXCHANGE OF THE WARRANTS AND THE COMMON STOCK UNDERLYING SUCH
WARRANTS REPRESENTED BY THIS CERTIFICATE IS RESTRICTED IN ACCORDANCE WITH THE
WARRANT AGREEMENT REFERRED TO HEREIN.
No. UD-1 Warrants _____________ Warrants
VOID AFTER 5:00 P.M. NEW YORK TIME
ON OCTOBER __, 2002
TRANSCOASTAL MARINE SERVICES, INC.
WARRANT CERTIFICATE
THIS CERTIFIES THAT for value received ______________________, the
registered holder hereof or registered assigns (the "Warrant Holder"), is the
owner of the number of Warrants set forth above, each of which entitles the
owner thereof to purchase at any time from 9:00 A.M., New York time, on [October
___, 1997, until 5:00 P.M., New York time on October ___, 2002,] one fully paid
and nonassessable share of Common Stock (subject to adjustment), par value $.001
per share (the "Common Stock"), of TRANSCOASTAL MARINE SERVICES, INC., a
Delaware corporation(the "Company"), at the exercise price of US$____ per share,
subject to adjustment as described in the Warrant Agreement referred to below
(the "Exercise Price"). The Warrant Holder may pay the Exercise Price in cash,
or by certified or official bank check or by reduction of the outstanding
principal amount under the Credit Agreement, or make a net exercise for Net
Warrant Shares as described in the Warrant Agreement.
This Warrant Certificate is subject to, and entitled to the benefits
of, all of the terms, provisions and conditions of an agreement dated October
___, 1997 (the "Warrant Agreement"), between the Company and Joint Energy
Development Investments, Limited Partnership, which Warrant Agreement is hereby
incorporated herein by reference and made a part hereof and to which
Exhibit B-22
23
Warrant Agreement reference is hereby made for a full description of the rights,
limitations of rights, obligations, duties and immunities hereunder of the
Company and the Warrant Holders of the Warrant Certificates. Copies of the
Warrant Agreement are on file at the principal office of the Company.
The Warrant Holder hereof may be treated by the Company and all other
persons dealing with this Warrant Certificate as the absolute owner hereof for
any purpose and as the person entitled to exercise the rights represented
hereby, or to the transfer hereof on the books of the Company, any notice to the
contrary notwithstanding, and until such transfer on such books, the Company may
treat the Warrant Holder hereof as the owner for all purposes.
The Warrant Certificate, with or without other Warrant Certificates,
upon surrender at the principal office of the Company, may be exchanged for
another Warrant Certificate or Warrant Certificates of like tenor and date
evidencing Warrants entitling the Warrant Holder to purchase a like aggregate
number of Common Stock as the Warrants evidenced by the Warrant Certificate or
Warrant Certificates surrendered entitled to such Warrant Holder to purchase. If
this Warrant Certificate shall be exercised in part, the Warrant Holder shall be
entitled to receive upon surrender hereof, another Warrant Certificate or
Warrant Certificates for the number of whole Warrants not exercised.
No fractional Common Stock will be issued upon the exercise of any
Warrant or Warrants evidenced hereby, but in lieu thereof a cash payment will be
made, as provided in the Warrant Agreement.
Neither the Warrants nor the Warrant Certificate entitles any Warrant
Holder hereof to any of the rights of a shareholder of the Company.
THIS WARRANT SHALL BE DEEMED TO BE A CONTRACT MADE UNDER AND SHALL BE
CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK,
WITHOUT GIVING EFFECT TO PRINCIPLES OF CONFLICTS OF LAW.
Exhibit B-23
24
IN WITNESS WHEREOF, TRANSCOASTAL MARINE SERVICES, INC. has caused
the signature of its President and Secretary to be printed hereon.
TRANSCOASTAL MARINE SERVICES, INC.
By: __________________________________
Name: ________________________________
Title: _______________________________
ATTEST:
------------------------------------
[Name: ]
[Secretary]
Exhibit B-24
