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EXHIBIT 4.5
XXXXXXXX-LEEVAC MARINE SERVICES, INC.
AND
THE GUARANTORS PARTY HERETO
$175,000,000
10 5/8% SERIES A SENIOR NOTES DUE 2008
REGISTRATION RIGHTS AGREEMENT
DATED AS OF JULY 24, 2001
RBC DOMINION SECURITIES CORPORATION
XXXXXXX LYNCH, PIERCE, XXXXXX & XXXXX INCORPORATED
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This Registration Rights Agreement (this "Agreement") is made and
entered into as of July 24, 2001 by and among XXXXXXXX-LEEVAC Marine Services,
Inc., a Delaware corporation (the "Company"), each subsidiary of the Company
named on the signature pages of this Agreement (each a "Guarantor" and,
collectively, the "Guarantors"), and RBC Dominion Securities Corporation and
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated (each an "Initial Purchaser"
and, collectively, the "Initial Purchasers"), who have agreed to purchase
$175,000,000 aggregate principal amount of the Company's 10 5/8% Series A Senior
Notes due 2008 (the "Series A Notes") pursuant to the Purchase Agreement (as
defined below).
This Agreement is made pursuant to the Purchase Agreement, dated July
19, 2001 (the "Purchase Agreement"), by and among the Company, the Guarantors
and the Initial Purchasers. In order to induce the Initial Purchasers to
purchase the Series A Notes, the Company and the Guarantors have agreed to
provide the registration rights set forth in this Agreement. The execution and
delivery of this Agreement is a condition to the obligations of the Initial
Purchasers set forth in Section 7 of the Purchase Agreement. Capitalized terms
used herein and not otherwise defined shall have the meaning assigned to them in
the Indenture (as defined below).
The parties hereby agree as follows:
SECTION 1.
DEFINITIONS
As used in this Agreement, the following capitalized terms shall have
the following meanings:
Act: The Securities Act of 1933, as amended.
Advice: As defined in Section 6(d).
Affiliate: As defined in Rule 144 promulgated under the Act.
Agreement: As defined in the preamble hereto.
Broker-Dealer: Any broker or dealer registered under the
Exchange Act.
Closing Date: The date hereof.
Commission: The Securities and Exchange Commission.
Company: As defined in the preamble hereto.
Consummate: The Exchange Offer shall be deemed "Consummated"
for purposes of this Agreement upon the occurrence of (i) the filing
and effectiveness under the Act of the Exchange Offer Registration
Statement relating to the Series B Notes to be issued in the Exchange
Offer, (ii) the maintenance of such Registration Statement
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continuously effective and the keeping of the Exchange Offer open for a
period not less than the minimum period required pursuant to Section
3(b) hereof, and (iii) the delivery by the Company to the exchange
agent for the Holders of Series B Notes in the same aggregate principal
amount as the aggregate principal amount of Series A Notes that were
validly tendered and not withdrawn by Holders thereof pursuant to the
Exchange Offer.
Damages Payment Date: With respect to the Series A Notes, each
Interest Payment Date.
Effectiveness Target Date: As defined in Section 5.
Exchange Act: The Securities Exchange Act of 1934, as amended.
Exchange Offer: The registration by the Company under the Act
of the Series B Notes pursuant to a Registration Statement pursuant to
which the Company offers the Holders of all outstanding Transfer
Restricted Securities the opportunity to exchange all such outstanding
Transfer Restricted Securities held by such Holders for Series B Notes
in an aggregate principal amount equal to the aggregate principal
amount of the Transfer Restricted Securities validly tendered and not
withdrawn in such exchange offer by such Holders.
Exchange Offer Registration Statement: The Registration
Statement relating to the Exchange Offer, including the related
Prospectus.
Exempt Resales: The transactions in which the Initial
Purchasers propose to sell the Series A Notes (i) to certain "qualified
institutional buyers," as such term is defined in Rule 144A under the
Act and (ii) outside the United States to certain non-U.S. Persons
pursuant to the requirements of Rule 903 under the Act.
Guarantor: As defined in the preamble hereto.
Holders: As defined in Section 2(b) hereof.
Indemnified Holder: As defined in Section 8(a) hereof.
Indenture: The Indenture, dated as of even date herewith,
between the Company and Xxxxx Fargo Bank Minnesota, National
Association, as trustee (the "Trustee"), pursuant to which the Notes
are to be issued, as such Indenture is amended or supplemented from
time to time in accordance with the terms thereof.
Initial Purchaser and Initial Purchasers: As defined in the
preamble hereto.
Interest Payment Date: Each February 1 and August 1, beginning
with February 1, 2002.
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XXXXXXXX-LEEVAC MARINE SERVICES, INC.
10 5/8% SERIES A SENIOR NOTES DUE 2008
REGISTRATION RIGHTS AGREEMENT
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NASD: The National Association of Securities Dealers, Inc.
Notes: The Series A Notes and the Series B Notes.
Prospectus: The prospectus included in a Registration
Statement at the time such Registration Statement is declared
effective, as amended or supplemented by any prospectus supplement and
by all other amendments thereto, including post-effective amendments,
and all material incorporated by reference into such Prospectus.
Purchase Agreement: As defined in the preamble hereto.
Record Holder: With respect to any Damages Payment Date
relating to Notes, each Person who is a Holder of Notes on the record
date with respect to the Interest Payment Date on which such Damages
Payment Date shall occur.
Registration Default: As defined in Section 5 hereof.
Registration Statement: Any registration statement of the
Company relating to (a) an offering of Series B Notes and the
Subsidiary Guarantees, if any, pursuant to an Exchange Offer or (b) the
registration for resale of Transfer Restricted Securities pursuant to
the Shelf Registration Statement, in each case, which is filed pursuant
to the provisions of this Agreement and including the related
Prospectus.
Series A Notes: As defined in the Preamble hereof.
Series B Notes: The Company's 10 5/8% Series B Senior Notes
due 2008 to be issued pursuant to the Indenture (a) in the Exchange
Offer and (b) as contemplated by Section 6(c)(xii) hereof.
Shelf Filing Deadline: As defined in Section 4(a) hereof.
Shelf Registration Statement: As defined in Section 4(a)
hereof.
Subsidiary Guarantees: The joint and several guarantees of the
Company's payment obligations under the Notes by the Guarantors to the
extent required by the terms of the Indenture.
TIA: The Trust Indenture Act of 1939 (15 U.S.C. Section
77aaa-77bbbb) as in effect on the date of the Indenture.
Transfer Restricted Securities: Each (a) Series A Note until
(i) the date on which such Series A Note has been exchanged by a Person
other than a Broker-Dealer for a Series B Note in the Exchange Offer,
(ii) the date on which such Series A Note has been effectively
registered under the Act and disposed of in accordance with the Shelf
Registration Statement and the purchasers thereof have been issued
Series B Notes or
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10 5/8% SERIES A SENIOR NOTES DUE 2008
REGISTRATION RIGHTS AGREEMENT
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(iii) the date on which such Series A Note is distributed to the public
pursuant to Rule 144 under the Act or may be distributed to the public
pursuant to Rule 144(k) under the Act and (b) Series B Note acquired by
a Broker-Dealer in the Exchange Offer in exchange for a Series A Note
that such Broker-Dealer acquired for its own account as a result of
market-making activities or other trading activities (other than Series
A Notes acquired directly from the Company or any of its Affiliates)
until the date on which such Series B Note is sold pursuant to the
"Plan of Distribution" contemplated in the Exchange Offer Registration
Statement to a purchaser who receives from such Broker-Dealer on or
prior to the date of such sale a copy of the Prospectus contained in
the Exchange Offer Registration Statement.
Underwritten Registration or Underwritten Offering: A
registration in which securities of the Company are sold to an
underwriter for reoffering to the public.
SECTION 2.
SECURITIES SUBJECT TO THIS AGREEMENT
(a) Transfer Restricted Securities. The securities entitled to the
benefits of this Agreement are the Transfer Restricted Securities.
(b) Holders of Transfer Restricted Securities. A Person is deemed to be
a holder of Transfer Restricted Securities (each, a "Holder") whenever such
Person owns Transfer Restricted Securities of record.
SECTION 3.
REGISTERED EXCHANGE OFFER
(a) Unless the Exchange Offer shall not be permissible under applicable
law or Commission policy (after the procedures set forth in Section 6(a) below
have been complied with), the Company and the Guarantors shall (i) cause to be
filed with the Commission on or before the 60th day after the Closing Date, a
Registration Statement under the Act relating to the Series B Notes, the
Subsidiary Guarantees and the Exchange Offer, (ii) use their reasonable best
efforts to cause such Registration Statement to become effective on or before
the 150th day after the Closing Date, (iii) in connection with the foregoing,
file (A) all pre-effective amendments to such Registration Statement as may be
necessary in order to cause such Registration Statement to become effective, (B)
if applicable, a post-effective amendment to such Registration Statement
pursuant to Rule 430A under the Act and (C) subject to the proviso in Section
6(c)(xi) hereof, cause all necessary filings in connection with the registration
and qualification of the Series B Notes and the Subsidiary Guarantees to be made
under the Blue Sky laws of such jurisdictions as are necessary to permit the
Exchange Offer to be Consummated, and (iv) upon the effectiveness of such
Registration Statement, commence, and within the time periods contemplated by
Section 3(b) hereof Consummate, the Exchange Offer. The Exchange Offer
Registration Statement shall be on the appropriate form under the Act permitting
registration of the Series B Notes to be offered in exchange for the Series A
Notes that are Transfer Restricted Securities and permitting resales of the
Series B Notes held by Broker-Dealers that tendered into the Exchange
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XXXXXXXX-LEEVAC MARINE SERVICES, INC.
10 5/8% SERIES A SENIOR NOTES DUE 2008
REGISTRATION RIGHTS AGREEMENT
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Offer Series A Notes that such Broker-Dealers acquired for their own account as
a result of market-making activities or other trading activities (other than
Series A Notes acquired directly from the Company or any of its Affiliates) as
contemplated by Section 3(c) below.
(b) The Company and the Guarantors shall cause the Exchange Offer
Registration Statement to be effective continuously for a period of 180 days
from the date on which the Exchange Offer Registration Statement is declared
effective and shall keep the Exchange Offer open for a period of not less than
the minimum period required under applicable federal and state securities laws
to Consummate the Exchange Offer; provided, however, that in no event shall such
period be less than 20 Business Days. The Company and the Guarantors shall cause
the Exchange Offer to comply with all applicable federal and state securities
laws. No securities other than the Series B Notes and the Subsidiary Guarantees
shall be included in the Exchange Offer Registration Statement. The Company and
the Guarantors shall use their reasonable best efforts to cause the Exchange
Offer to be Consummated on the earliest practicable date after the Exchange
Offer Registration Statement has become effective, but in any event on or prior
to the 180th day after the Closing Date.
(c) The Company and the Guarantors shall indicate in a "Plan of
Distribution" section contained in the Exchange Offer Registration Statement
that any Broker-Dealer who holds Series A Notes that are Transfer Restricted
Securities and that were acquired for its own account as a result of
market-making activities or other trading activities (other than Series A Notes
acquired directly from the Company or any of its Affiliates) may exchange such
Series A Notes pursuant to the Exchange Offer; however, such Broker-Dealer may
be deemed to be an "underwriter" within the meaning of the Act and must,
therefore, deliver a prospectus meeting the requirements of the Act in
connection with its initial sale of the Series B Notes received by such
Broker-Dealer in the Exchange Offer, which prospectus delivery requirement may
be satisfied by the delivery by such Broker-Dealer of the Prospectus contained
in the Exchange Offer Registration Statement. Such "Plan of Distribution"
section shall also contain all other information with respect to such resales by
such Broker-Dealers that the Commission may require in order to permit such
resales pursuant thereto, but such "Plan of Distribution" shall not name any
such Broker-Dealer or disclose the amount of Transfer Restricted Securities held
by any such Broker-Dealer except to the extent required by the Commission as a
result of a change in policy after the date of this Agreement.
The Company and the Guarantors shall use their reasonable best
efforts to keep the Exchange Offer Registration Statement continuously
effective, supplemented and amended as required by and subject to the provisions
of Sections 6(a) and 6(c) below to the extent necessary to ensure that the
related Prospectus is available for resales of Series B Notes that are Transfer
Restricted Securities acquired by Broker-Dealers, and to ensure that it conforms
with the requirements of this Agreement, the Act and the policies, rules and
regulations of the Commission as announced from time to time, for a period of
180 days from the date that the Exchange Offer Registration Statement is
declared effective or such shorter period as will terminate when no Transfer
Restricted Securities covered by such Registration Statement are outstanding.
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XXXXXXXX-LEEVAC MARINE SERVICES, INC.
10 5/8% SERIES A SENIOR NOTES DUE 2008
REGISTRATION RIGHTS AGREEMENT
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The Company and the Guarantors shall provide sufficient copies
of the latest version of such Prospectus to Broker-Dealers promptly upon request
at any time during such period in order to facilitate such resales.
SECTION 4.
SHELF REGISTRATION
(a) Shelf Registration. If (i) the Company and the Guarantors are not
required to file an Exchange Offer Registration Statement or permitted to
Consummate the Exchange Offer because the Exchange Offer is not permitted by
applicable law or Commission policy (after the procedures set forth in Section
6(a) below have been complied with) or (ii) any Holder of Transfer Restricted
Securities notifies the Company in writing prior to the 20th day following the
Consummation of the Exchange Offer that (A) such Holder is prohibited by
applicable law or Commission policy from participating in the Exchange Offer, or
(B) such Holder may not resell the Series B Notes acquired by it in the Exchange
Offer to the public without delivering a prospectus and the Prospectus contained
in the Exchange Offer Registration Statement is not available for such resales
by such Holder, then the Company and the Guarantors shall:
(x) cause to be filed a shelf registration statement pursuant
to Rule 415 under the Act, which may be an amendment to the Exchange
Offer Registration Statement (in either event, the "Shelf Registration
Statement") relating to all Transfer Restricted Securities in the case
of Section 4(a)(i) or the Transfer Restricted Securities specified in
any notice in the case of Section 4(a)(ii) on or prior to the earlier
to occur of (1) the 60th day after the date on which the Company
determines that it is not required to file the Exchange Offer
Registration Statement as a result of Section 4(a)(i) hereof and (2)
the 60th day after the date on which the Company receives notice from a
Holder of Transfer Restricted Securities as contemplated by Section
4(a)(ii) above (such earlier date being the "Shelf Filing Deadline"),
which Shelf Registration Statement shall provide for resales of all
Transfer Restricted Securities the Holders of which shall have provided
the information required pursuant to Section 4(b) hereof; and
(y) use their reasonable best efforts to cause such Shelf
Registration Statement to be declared effective by the Commission on or
before the 150th day after the Shelf Filing Deadline.
The Company and the Guarantors shall use their reasonable best efforts to keep
such Shelf Registration Statement continuously effective, supplemented and
amended as required by the provisions of Sections 6(b) and (c) hereof to the
extent necessary to ensure that it is available for resales of Transfer
Restricted Securities by the Holders thereof entitled to the benefit of this
Section 4(a), and to ensure that it conforms with the requirements of this
Agreement, the Act and the policies, rules and regulations of the Commission as
announced from time to time, until the earlier of (a) two years following the
Closing Date and (b) such earlier date when no Transfer Restricted Securities
covered by such Shelf Registration Statement remain outstanding.
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XXXXXXXX-LEEVAC MARINE SERVICES, INC.
10 5/8% SERIES A SENIOR NOTES DUE 2008
REGISTRATION RIGHTS AGREEMENT
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Holders of Transfer Restricted Securities that do not give the written
notice within the 20 Business Day period set forth in Section 4(a) hereof, if
required to be given, will no longer have any registration rights pursuant to
this Section 4 and will not be entitled to any Liquidated Damages pursuant to
Section 5 hereof in respect of the Company's obligations with respect to the
Shelf Registration Statement.
(b) Provision by Holders of Certain Information in Connection with the
Shelf Registration Statement. No Holder of Transfer Restricted Securities may
include any of its Transfer Restricted Securities in any Shelf Registration
Statement pursuant to this Agreement unless and until such Holder furnishes to
the Company in writing, within 10 Business Days after receipt of a request
therefor, such information as the Company may reasonably request for use in
connection with any Shelf Registration Statement or Prospectus or preliminary
Prospectus included therein. No Holder of Transfer Restricted Securities shall
be entitled to Liquidated Damages pursuant to Section 5 hereof if such Holder
shall have failed to provide all such reasonably requested information within
such period. Each Holder as to which any Shelf Registration Statement is being
effected agrees to furnish promptly to the Company all information required to
be disclosed in order to make the information previously furnished to the
Company by such Holder not materially misleading.
SECTION 5.
LIQUIDATED DAMAGES
If (i) any of the Registration Statements required by this Agreement to
be filed is not filed with the Commission on or prior to the date specified for
such filing in this Agreement, (ii) any of such Registration Statements has not
been declared effective by the Commission on or prior to the date specified for
such effectiveness in this Agreement (the "Effectiveness Target Date"), whether
or not the Company and the Guarantors have breached any obligations to use their
reasonable best efforts to cause any such Registration Statement to be declared
effective, (iii) the Exchange Offer has not been Consummated within 180 days of
the Closing Date or (iv) except as permitted by Section 6(c)(i) hereof, any
Registration Statement required by this Agreement is filed and declared
effective but shall thereafter cease to be effective or fail to be usable for
its intended purpose without being succeeded within 10 Business Days by a
post-effective amendment to such Registration Statement that cures such failure
and that is itself declared effective within 10 Business Days of the date of
filing of such post-effective amendment (each such event referred to in clauses
(i) through (iv), a "Registration Default"), the Company and the Guarantors
hereby jointly and severally agree to pay liquidated damages to each Holder of
Transfer Restricted Securities in an amount equal to $.10 per week per $1,000
principal amount of Transfer Restricted Securities held by such Holder for each
week or portion thereof that the Registration Default continues with respect to
the first 90-day period immediately following the occurrence of such
Registration Default. The amount of the liquidated damages shall increase by an
additional $.10 per week per $1,000 principal amount of Transfer Restricted
Securities with respect to each subsequent 90-day period until all Registration
Defaults have been cured, up to a maximum amount of liquidated damages of $.40
per week per $1,000 principal amount of Transfer Restricted Securities, provided
that the Company and the Guarantors shall in no event be required to pay
liquidated damages for more than one Registration Default at any given time.
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XXXXXXXX-LEEVAC MARINE SERVICES, INC.
10 5/8% SERIES A SENIOR NOTES DUE 2008
REGISTRATION RIGHTS AGREEMENT
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All accrued liquidated damages shall be paid to Record Holders on each Damages
Payment Date following the accrual thereof, in the same manner as provided in
the Indenture and the Notes for the payment of interest on the Notes. Following
the cure of all Registration Defaults relating to any particular Transfer
Restricted Securities, the accrual of liquidated damages with respect to such
Transfer Restricted Securities shall cease.
All obligations of the Company and the Guarantors set forth in the
preceding paragraph that are outstanding with respect to any Transfer Restricted
Security at the time such security ceases to be a Transfer Restricted Security
shall survive until such time as all such obligations with respect to such
security shall have been satisfied in full.
SECTION 6.
REGISTRATION PROCEDURES
(a) Exchange Offer Registration Statement. In connection with the
Exchange Offer, the Company and the Guarantors shall comply with all of the
applicable provisions of Section 6(c) below, shall use their reasonable best
efforts to effect such exchange and to permit the sale of Transfer Restricted
Securities being sold in accordance with the intended method or methods of
distribution thereof, and shall comply with all of the following provisions:
(i) If in the reasonable opinion of counsel to the Company
there is a question as to whether the Exchange Offer is permitted by
applicable law, the Company and the Guarantors hereby agree to seek a
no-action letter or other favorable decision from the Commission
allowing the Company and the Guarantors to Consummate the Exchange
Offer for such Transfer Restricted Securities and to permit the resale
of Series B Notes by Broker-Dealers that tendered in the Exchange Offer
Series A Notes that such Broker-Dealers acquired for their own account
as a result of market-making activities or other trading activities
(other than Series A Notes acquired directly from the Company or any of
its Affiliates). The Company and the Guarantors hereby agree to use
their reasonable best efforts to pursue the issuance of such a decision
to the Commission staff level but shall not be required to take
commercially unreasonable action to effect a change of Commission
policy.
(ii) As a condition to its participation in the Exchange
Offer, each Holder of Transfer Restricted Securities (including,
without limitation, any Holder who is a Broker-Dealer) shall furnish,
upon the request of the Company, prior to the Consummation of the
Exchange Offer, a written representation to the Company (which may be
contained in the letter of transmittal contemplated by the Exchange
Offer Registration Statement) to the effect that, at the time of
Consummation of the Exchange Offer, (A) any Series B Notes received by
such Holder will be acquired in the ordinary course of its business,
(B) such Holder will have no arrangement or understanding with any
person to participate in distribution of the Series A Notes or the
Series B Notes within the meaning of the Act, (C) if the Holder is not
a Broker-Dealer or is a Broker-Dealer but will not receive Series B
Notes for its own account in exchange for Series A Notes, neither the
Holder nor any such other Person is engaged in or intends to
participate in a distribution of the
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Series B Notes, and (D) that such Holder is not an Affiliate of the
Company. If the Holder is a Broker-Dealer that will receive Series B
Notes for its own account in exchange for Series A Notes, it will
represent that the Series A Notes to be exchanged for the Series B
Notes were acquired by it as a result of market-making activities or
other trading activities, and will acknowledge that it will deliver a
prospectus meeting the requirements of the Act in connection with any
resale of such Series B Notes. It is understood that, by acknowledging
that it will deliver, and by delivering, a prospectus meeting the
requirements of the Act in connection with any resale of such Series B
Notes, the Holder is not admitting that it is an "underwriter" within
the meaning of the Act.
(iii) Prior to effectiveness of the Exchange Offer
Registration Statement, the Company and the Guarantors shall provide a
supplemental letter to the Commission (A) stating that the Company and
the Guarantors are registering the Exchange Offer in reliance on the
position of the Commission enunciated in Exxon Capital Holdings
Corporation (available May 13, 1988), Xxxxxx Xxxxxxx and Co., Inc.
(available June 5, 1991) and, if applicable, any no-action letter
obtained pursuant to clause (i) above and (B) including a
representation that neither the Company nor any Guarantor has entered
into any arrangement or understanding with any Person to distribute the
Series B Notes to be received in the Exchange Offer and that, to the
best of the Company's information and belief, each Holder participating
in the Exchange Offer is acquiring the Series B Notes in its ordinary
course of business and has no arrangement or understanding with any
Person to participate in the distribution of the Series B Notes
received in the Exchange Offer.
(b) Shelf Registration Statement. In connection with the Shelf
Registration Statement, if required, the Company and the Guarantors shall comply
with all the provisions of Section 6(c) below and shall use their reasonable
best efforts to effect such registration to permit the sale of the Transfer
Restricted Securities being sold in accordance with the intended method or
methods of distribution thereof (as indicated in the information furnished to
the Company pursuant to Section 4(b) hereof) and, pursuant thereto, the Company
and the Guarantors will prepare and file with the Commission in accordance with
Section 4(a) hereof a Shelf Registration Statement relating to the registration
on any appropriate form under the Act, which form shall be available for the
sale of the Transfer Restricted Securities in accordance with the intended
method or methods of distribution thereof within the time periods and otherwise
in accordance with the provisions hereof.
(c) General Provisions. In connection with any Registration Statement
and any Prospectus required by this Agreement to permit the sale or resale of
Transfer Restricted Securities (including, without limitation, any Registration
Statement and the related Prospectus required to permit resales of Notes by
Broker-Dealers as contemplated herein), the Company and the Guarantors shall
during the periods specified in Sections 3 and 4 hereof, as applicable:
(i) use their reasonable best efforts to keep such
Registration Statement continuously effective and provide all requisite
financial statements (including, if required by the Act or any
regulation thereunder, financial statements of the Guarantors) for the
period specified in Section 3 or 4 of this Agreement, as applicable;
upon the
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occurrence of any event that would cause any such Registration
Statement or the Prospectus contained therein (A) to contain an untrue
statement of 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 or (B) not to be effective and
usable for the resale of Transfer Restricted Securities during the
period required by this Agreement, the Company and the Guarantors shall
file promptly an appropriate amendment to such Registration Statement,
in the case of clause (A), correcting any such misstatement or
omission, and, in the case of either clause (A) or (B), use their
reasonable best efforts to cause such amendment to be declared
effective and such Registration Statement and the related Prospectus to
become usable for their intended purpose(s) as soon as practicable
thereafter; provided, however, if (A) the full Board of Directors of
the Company determines in good faith that it is in the best interests
of the Company not to disclose the existence of or facts surrounding
any proposed or pending material corporate transaction involving the
Company or any of its subsidiaries and (B) the Company notifies the
Holders, pursuant to Section 6(c)(iii)(D) hereof, within two Business
Days after such Board of Directors makes such determination, the
Company may allow the Shelf Registration Statement to fail to be
effective and usable as a result of such nondisclosure for up to 90
days during the period of effectiveness required by Section 4 hereof,
but in no event for a period in excess of 30 consecutive days;
(ii) prepare and file with the Commission such amendments and
post-effective amendments to the Registration Statement as may be
necessary to keep the Registration Statement effective for the
applicable period set forth in Section 3 or 4 hereof; cause the
Prospectus to be supplemented by any required Prospectus supplement,
and as so supplemented to be filed pursuant to Rule 424 under the Act,
and to comply fully with the applicable provisions of Rules 424 and
430A under the Act in a timely manner; and comply with the provisions
of the Act with respect to the disposition of all securities covered by
such Registration Statement during the applicable period in accordance
with the intended method or methods of distribution by the sellers
thereof set forth in such Registration Statement or supplement to the
Prospectus;
(iii) except in the case of the Exchange Offer Registration
Statement, advise the underwriter(s), if any, and selling Holders
promptly and, if requested by any such Person, to confirm such advice
in writing, (A) when the Prospectus or any Prospectus supplement or
post-effective amendment has been filed, and, with respect to any
Registration Statement or any post-effective amendment thereto, when
the same has become effective, (B) of any request by the Commission for
amendments to the Registration Statement or amendments or supplements
to the Prospectus or for additional information relating thereto, (C)
of the issuance by the Commission of any stop order suspending the
effectiveness of the Registration Statement under the Act or of the
suspension by any state securities commission of the qualification of
the Transfer Restricted Securities for offering or sale in any
jurisdiction, or the initiation of any proceeding for any of the
preceding purposes, and (D) of the existence of any fact or the
happening of any event that makes any statement of a material fact made
in the Registration Statement, the Prospectus, any amendment or
supplement thereto, or any
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document incorporated by reference therein untrue, or that requires the
making of any additions to or changes in the Registration Statement or
the Prospectus in order to make the statements therein not misleading.
If at any time the Commission shall issue any stop order suspending the
effectiveness of the Registration Statement, or any state securities
commission or other regulatory authority shall issue an order
suspending the qualification or exemption from qualification of the
Transfer Restricted Securities under state securities or Blue Sky laws,
the Company and the Guarantors shall use their reasonable best efforts
to obtain the withdrawal or lifting of such order at the earliest
possible time;
(iv) in the case of a Shelf Registration Statement, furnish to
each of the selling Holders and each of the underwriter(s), if any,
before filing with the Commission, copies of any Registration Statement
or any Prospectus included therein or any amendments or supplements to
any such Registration Statement or Prospectus (but excluding any
documents incorporated by reference as a result of the Company's
periodic reporting requirements under the Exchange Act), and neither
the Company nor any Guarantors shall file any such Registration
Statement or Prospectus or any amendment or supplement to any such
Registration Statement or Prospectus (excluding all such documents
incorporated by reference as a result of the Company's periodic
reporting requirements under the Exchange Act) to which a selling
Holder of Transfer Restricted Securities covered by such Registration
Statement or the underwriter(s), if any, shall reasonably object within
five Business Days after the receipt thereof, it being understood that
a selling Holder or underwriter, if any, shall be deemed to have
reasonably objected to such filing if such Registration Statement,
amendment, Prospectus or supplement, as applicable, as proposed to be
filed, contains an untrue statement of material fact or omits to state
any material fact necessary to make the statements therein, in the
light of the circumstances under which they were made, not misleading;
(v) in the case of a Shelf Registration Statement, promptly
following the filing of any document that is to be incorporated by
reference into a Registration Statement or Prospectus, provide copies
of such document to the selling Holders and to the underwriter(s), if
any, make the Company's representatives available for discussion of
such document and other customary due diligence matters, and include
such information in such document prior to the filing thereof as such
selling Holders or underwriter(s), if any, reasonably may request;
(vi) in the case of a Shelf Registration Statement, make
available at reasonable times for inspection by the selling Holders,
any underwriter participating in any disposition pursuant to such
Registration Statement, and any attorney or accountant retained by such
selling Holders or any of the underwriter(s), all relevant financial
and other records and pertinent corporate documents and properties of
the Company and the Guarantors and cause the Company's and the
Guarantors' officers, directors and employees to supply all information
reasonably requested by any such Holder, underwriter, attorney or
accountant in connection with such Registration Statement subsequent to
the filing thereof and prior to its effectiveness; provided, however,
that such persons shall first agree in writing with the Company and/or
the Guarantors that any
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information that is reasonably and in good faith designated by the
Company and/or the Guarantors as confidential at the time of delivery
of such information shall be kept confidential by such persons, unless
(i) disclosure of such information is required by court or
administrative order or is necessary to respond to inquiries of
regulatory authorities, (ii) disclosure of such information is required
by law, (iii) such information becomes generally available to the
public other than as a result of a disclosure or failure to safeguard
such information by such person or (iv) such information becomes
available to such person from a source other than the Company and/or
the Guarantors and such source is not bound by a confidentiality
agreement; and; provided, further, that the foregoing inspection and
information gathering shall be coordinated on behalf of the selling
Holders, underwriters, or any representative thereof, by one counsel,
who shall be Xxxxxx & Xxxxxx L.L.P. or such other counsel as may be
chosen by the Holders of a majority in principal amount of Transfer
Restricted Securities;
(vii) in the case of a Shelf Registration Statement, if
requested by any selling Holders or the underwriter(s), if any,
promptly incorporate in any Registration Statement or Prospectus,
pursuant to a supplement or post-effective amendment if necessary, such
information as such selling Holders and underwriter(s), if any, may
reasonably request to have included therein, including, without
limitation, information relating to the "Plan of Distribution" of the
Transfer Restricted Securities, information with respect to the
principal amount of Transfer Restricted Securities being sold to such
underwriter(s), the purchase price being paid therefor and any other
terms of the offering of the Transfer Restricted Securities to be sold
in such offering; and make all required filings of such Prospectus
supplement or post-effective amendment as soon as practicable after the
Company is notified of the matters to be incorporated in such
Prospectus supplement or post-effective amendment;
(viii) in the case of a Shelf Registration Statement, furnish
to each selling Holder and each of the underwriter(s), if any, without
charge, at least one copy of the Registration Statement, as first filed
with the Commission, and of each amendment thereto, including all
documents incorporated by reference therein and all exhibits (including
exhibits incorporated therein by reference);
(ix) deliver to each selling Holder and each of the
underwriter(s), if any, without charge, as many copies of the
Prospectus (including each preliminary prospectus) and any amendment or
supplement thereto as such Persons reasonably may request; the Company
and the Guarantors hereby consent, subject to Section 6(d) hereof, to
the use of the Prospectus and any amendment or supplement thereto by
each of the selling Holders and each of the underwriter(s), if any, in
connection with the offering and the sale of the Transfer Restricted
Securities covered by the Prospectus or any amendment or supplement
thereto; provided that such use of the Prospectus and any amendment or
supplement thereto and such offering and sale conforms to the Plan of
Distribution set forth in the Prospectus and complies with the terms of
this Agreement and all applicable laws and regulations thereunder;
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(x) in the event of an Underwritten Registration, enter into
such customary agreements (including an underwriting agreement), make
such customary representations and warranties, deliver such customary
documents and certificates, and take all such other customary actions
in connection therewith in order to expedite or facilitate the
disposition of the Transfer Restricted Securities pursuant to any Shelf
Registration Statement contemplated by this Agreement, all to such
extent as may be reasonably requested by any Holder of Transfer
Restricted Securities or underwriter in connection with any sale or
resale pursuant to any Shelf Registration Statement contemplated by
this Agreement; and, without limiting the generality of the foregoing,
the Company and the Guarantors shall:
(A) furnish to each underwriter upon the
effectiveness of the Shelf Registration Statement:
(1) a certificate, dated the date of
effectiveness of the Shelf Registration Statement,
signed on behalf of the Company by two senior
officers, one of whom must be its chief financial
officer, confirming, as of such date, the matters
addressed in the officers' certificate delivered
pursuant to Section 7 of the Purchase Agreement with
respect to the transactions contemplated by the Shelf
Registration Statement;
(2) an opinion or opinions, dated the date
of effectiveness of the Shelf Registration Statement,
of counsel for the Company and the Guarantors
covering the matters referred to in Section 7(a) of
the Purchase Agreement with respect to the
transactions contemplated by the Shelf Registration
Statement; and
(3) a customary comfort letter, dated as of
the date of effectiveness of the Shelf Registration
Statement, from the Company's independent accountants
if such comfort letter shall be issuable to the
underwriters in accordance with the relevant
accounting industry pronouncements, in the customary
form and covering matters of the type customarily
covered in comfort letters to underwriters in
connection with primary underwritten offerings, and
substantially in the form of the comfort letters
delivered pursuant to Section 7(c) of the Purchase
Agreement; and
(B) deliver such other documents and certificates as
may be reasonably requested by such parties and which are
customarily delivered in Underwritten Offerings;
(xi) prior to any public offering of Transfer Restricted
Securities, cooperate with the selling Holders, the underwriter(s), if
any, and their respective counsel in connection with the registration
and qualification of the Transfer Restricted Securities under the
securities or Blue Sky laws of such jurisdictions as the selling
Holders or
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underwriter(s) may reasonably request and do any and all other acts or
things reasonably necessary or advisable to enable the disposition in
such jurisdictions of the Transfer Restricted Securities covered by the
Shelf Registration Statement; provided, however, that neither the
Company nor the Guarantors shall be required to register or qualify as
a foreign corporation where it is not now so qualified or to take any
action that would subject it to the service of process in suits or to
taxation, other than as to matters and transactions relating to the
Registration Statement, in any jurisdiction where it is not now so
subject;
(xii) issue, upon the request of any Holder of Series A Notes
covered by the Shelf Registration Statement, Series B Notes, having an
aggregate principal amount equal to the aggregate principal amount of
Series A Notes being sold by such Holder, such Series B Notes to be
registered in the name of the purchaser(s) of such Notes; in return,
the Series A Notes held by such Holder shall be surrendered to the
Company for cancellation;
(xiii) in connection with any sale of Transfer Restricted
Securities that will result in such securities no longer being Transfer
Restricted Securities, cooperate with the selling Holders and the
underwriter(s), if any, to facilitate the timely preparation and
delivery of either global or physical certificates representing
Transfer Restricted Securities to be sold and not bearing any
restrictive legends; and, in the case of physical certificates, enable
such Transfer Restricted Securities to be in such authorized
denominations and registered in such names as the Holders or the
underwriter(s), if any, may reasonably request at least two Business
Days prior to any sale of Transfer Restricted Securities made by such
underwriter(s);
(xiv) if any fact or event contemplated by clause (c)(iii)(D)
above shall exist or have occurred, prepare a supplement or
post-effective amendment to the Registration Statement or related
Prospectus or any document incorporated therein by reference or file
any other required document so that, as thereafter delivered to the
purchasers of Transfer Restricted Securities, the Prospectus will not
contain any untrue statement of a material fact or omit to state any
material fact necessary to make the statements therein not misleading;
(xv) provide a CUSIP number for all Series B Notes not later
than the effective date of the Registration Statement and provide the
Trustee under the Indenture with one or more global certificates for
the Series B Notes that are in a form eligible for deposit with The
Depository Trust Company;
(xvi) in the case of a Shelf Registration Statement, cooperate
and assist in any filings required to be made with the NASD and in the
performance of any due diligence investigation by any underwriter
(including any "qualified independent underwriter") that is required to
be retained in accordance with the rules and regulations of the NASD;
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(xvii) otherwise use their reasonable best efforts to comply
with all applicable rules and regulations of the Commission, and make
generally available to its security holders with regard to any
applicable Registration Statement, as soon as practicable, a
consolidated earnings statement meeting the requirements of Rule 158
under the Act (which need not be audited) for a twelve-month period
commencing after the effective date of the Registration Statement;
(xviii) cause the Indenture to be qualified under the TIA not
later than the effective date of the first Registration Statement
required by this Agreement, and, in connection therewith, cooperate
with the Trustee and the Holders of Notes to effect such changes to the
Indenture as may be required for such Indenture to be so qualified in
accordance with the terms of the TIA; and execute and use their
reasonable best efforts to cause the Trustee to execute, all documents
that may be required to effect such changes and all other forms and
documents required to be filed with the Commission to enable such
Indenture to be so qualified in a timely manner; and
(xix) provide promptly to each Holder upon request each
document, if any, filed with the Commission pursuant to the
requirements of Section 13 or Section 15 of the Exchange Act.
(d) Each Holder agrees by acquisition of a Transfer Restricted Security
that, upon receipt of any notice from the Company of the existence of any fact
of the kind described in Section 6(c)(iii)(D) hereof, such Holder will keep such
notice confidential and forthwith discontinue disposition of Transfer Restricted
Securities pursuant to the applicable Registration Statement until such Holder's
receipt of the copies of the supplemented or amended Prospectus contemplated by
Section 6(c)(xiv) hereof, or until it is advised in writing (the "Advice") by
the Company that the use of the Prospectus may be resumed, and has received
copies of any additional or supplemental filings that are incorporated by
reference in the Prospectus. If so directed by the Company, each Holder will
deliver to the Company (at the Company's expense) all copies, other than
permanent file copies then in such Holder's possession, of the Prospectus
covering such Transfer Restricted Securities that was current at the time of
receipt of such notice. In the event the Company shall give any such notice, the
time period regarding the effectiveness of such Registration Statement set forth
in Section 3 or 4 hereof, as applicable, shall be extended by the number of days
during the period from and including the date of the giving of such notice
pursuant to Section 6(c)(iii)(D) hereof to and including the date when each
selling Holder covered by such Registration Statement shall have received the
copies of the supplemented or amended Prospectus contemplated by Section
6(c)(xiv) hereof or shall have received the Advice.
SECTION 7.
REGISTRATION EXPENSES
(a) All expenses incident to the Company's or the Guarantors'
performance of or compliance with this Agreement will be borne by the Company
and the Guarantors, regardless of whether a Registration Statement becomes
effective, including without limitation: (i) all
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registration and filing fees and expenses (including filings made by the Initial
Purchasers or Holders with the NASD (and, if applicable, the fees and expenses
of any "qualified independent underwriter" and its counsel that may be required
by the rules and regulations of the NASD)); (ii) all fees and expenses of
compliance with federal securities and state Blue Sky or securities laws; (iii)
all expenses of printing (including printing of Prospectuses), messenger and
delivery services and telephone; (iv) all fees and disbursements of counsel for
the Company and the Guarantors and, subject to Section 7(b) below, counsel for
the Holders of Transfer Restricted Securities; (v) all application and filing
fees in connection with listing Notes on a national securities exchange or
automated quotation system, if any; and (vi) all fees and disbursements of
independent public accountants of the Company and the Guarantors (including the
expenses of any special audit and comfort letters required by or incident to
such performance).
The Company and the Guarantors will, in any event, bear their
internal expenses (including, without limitation, all salaries and expenses of
its officers and employees performing legal or accounting duties), the expenses
of any annual audit and the fees and expenses of any Person, including special
experts, retained by the Company or any Guarantor. The Company shall not be
responsible for any other expenses or costs, including but not limited to
commissions, fees and discounts of underwriters, brokers, dealers and agents.
(b) In connection with any Registration Statement required by this
Agreement (excluding the Exchange Offer Registration Statement), the Company and
the Guarantors will reimburse the Holders of Transfer Restricted Securities
being tendered in the Exchange Offer and/or resold pursuant to the "Plan of
Distribution" contained in the Exchange Offer Registration Statement or
registered pursuant to the Shelf Registration Statement, as applicable, for the
reasonable fees and disbursements of not more than one counsel, who shall be
Xxxxxx & Xxxxxx L.L.P. or such other counsel as may be chosen by the Holders of
a majority in principal amount of the Transfer Restricted Securities for whose
benefit such Registration Statement is being prepared.
SECTION 8.
INDEMNIFICATION
(a) The Company and the Guarantors jointly and severally, agree to
indemnify and hold harmless (i) each Holder, (ii) each Initial Purchaser, (iii)
each person, if any, who controls any Holder or an Initial Purchaser within the
meaning of Section 15 of the Act or Section 20(a) of the Exchange Act and (iii)
the respective officers, directors, partners, employees, representatives and
agents of any Holder or Initial Purchaser or any controlling person (any person
referred to in clauses (i), (ii) or (iii) may hereinafter be referred to as an
"Indemnified Holder"), to the fullest extent lawful, from and against any and
all losses, liabilities, claims, damages and expenses whatsoever (including but
not limited to reasonable attorneys' fees and any and all reasonable expenses
whatsoever incurred in investigating, preparing or defending against any
investigation or litigation, commenced or threatened, or any claim whatsoever,
and any and all amounts paid in settlement of any claim or litigation), joint or
several, to which they or any of them may become subject under the Act, the
Exchange Act or otherwise, insofar as such losses, liabilities, claims, damages
or expenses (or actions in respect thereof) arise out of or
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are based upon any untrue statement or alleged untrue statement of a material
fact contained in any Registration Statement or Prospectus, or in any supplement
thereto or amendment thereof, 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, in the light of the circumstances
under which they were made, not misleading; provided, however, that the Company
and the Guarantors will not be liable in any such case to the extent, but only
to the extent, that any such loss, liability, claim, damage or expense arises
out of or is based upon any such untrue statement or alleged untrue statement or
omission or alleged omission made therein in reliance upon and in conformity
with written information furnished to the Company by or on behalf of the any of
the Holders expressly for use therein. This indemnity agreement will be in
addition to any liability that the Company and the Guarantors may otherwise
have, including under this Agreement.
(b) Each Holder of Transfer Restricted Securities agrees, severally and
not jointly, to indemnify and hold harmless the Company, each of the Guarantors
and each person, if any, who controls the Company or any Guarantor within the
meaning of Section 15 of the Act or Section 20(a) of the Exchange Act and each
of their respective officers, directors, employers, partners, representatives
and agents to the same extent as the foregoing indemnity from the Company and
the Guarantors to each of the Indemnified Holders, but only with respect to
information relating to such Holder furnished in writing by such Holder for use
in any Registration Statement, or in any amendment thereof or supplement
thereto; provided, however, that in no case shall any selling Holder be liable
or responsible for any amount in excess of proceeds received by such Holder upon
the sale of the Notes giving rise to such indemnification obligation. This
indemnity will be in addition to any liability that the Holders may otherwise
have, including under this Agreement.
(c) Promptly after receipt by an indemnified party under subsection (a)
or (b) above of notice of the commencement of any action, such indemnified party
shall, if a claim in respect thereof is to be made against the indemnifying
party under such subsection, notify each party against whom indemnification is
to be sought in writing of the commencement thereof (but the failure so to
notify an indemnifying party shall not relieve it from any liability that it may
have under this Section 8 or otherwise except to the extent that it has been
prejudiced in any material respect by such failure). In case any such action is
brought against any indemnified party, and it notifies an indemnifying party of
the commencement thereof, the indemnifying party will be entitled to participate
therein, and to the extent it may elect by written notice delivered to the
indemnified party promptly after receiving the aforesaid notice from such
indemnified party, to assume and control the defense thereof with counsel
reasonably satisfactory to such indemnified party. Notwithstanding the
foregoing, the indemnified party or parties shall have the right to employ its
or their own counsel in any such case, but the fees and expenses of such counsel
shall be at the expense of such indemnified party or parties unless (i) the
employment of such counsel shall have been authorized in writing by the
indemnifying parties in connection with the defense of such action, (ii) the
indemnifying parties shall not have employed counsel to take charge of the
defense of such action within a reasonable time after notice of commencement of
the action, or (iii) such indemnified party or parties shall have reasonably
concluded that there may be defenses available to it that are different from or
additional to those available to one or all of the
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indemnifying parties (in which case the indemnifying party shall not have the
right to direct the defense of such action on behalf of the indemnified party or
parties), in any of which events such fees and expenses of counsel shall be
borne by the indemnifying parties; provided, however, that the indemnifying
party under subsection (a) or (b) above shall only be liable for the legal
expenses of one counsel (in addition to any local counsel) for all indemnified
parties. Anything in this subsection to the contrary notwithstanding, an
indemnifying party shall not be liable for any settlement of any claim or action
effected without its prior written consent; provided that such consent was not
unreasonably withheld.
SECTION 9.
CONTRIBUTION
In order to provide for contribution in circumstances in which the
indemnification provided for in Section 8 is for any reason held to be
unavailable or is insufficient to hold harmless a party indemnified thereunder,
the Company and the Guarantors, on the one hand, and the Holders, on the other
hand, shall contribute to the aggregate losses, claims, damages, liabilities and
expenses of the nature contemplated by such indemnification provision (including
any investigation, legal and other expenses incurred in connection with, and any
amount paid in settlement of, any action, suit or proceeding or any claims
asserted, but after deducting in the case of losses, claims, damages,
liabilities and expenses suffered by the Company and the Guarantors any
contribution received by the Company and the Guarantors from Persons, other than
a Holder, who may also be liable for contribution, including persons who control
the Company and the Guarantors within the meaning of Section 15 of the Act or
Section 20(a) of the Exchange Act) to which the Company, the Guarantors or any
Holder may be subject, (i) in such proportion as is appropriate to reflect the
relative fault of the Company and the Guarantors, on one hand, and each Holder,
on the other hand, in connection with the statements or omissions that resulted
in such losses, claims, damages, liabilities or expenses, or (ii) if the
allocation provided by clause (i) is not permitted by applicable law, in such
proportion as is appropriate to reflect not only the relative fault referred to
in clause (i) above but also other relevant equitable considerations. The
relative fault of the Company and the Guarantors, on one hand, and of each
Holder, on the other hand, shall be determined by reference to, among other
things, whether the untrue or alleged untrue statement of a material fact or the
omission or alleged omission to state a material fact relates to information
supplied by the Company, the Guarantors or such Holder and the parties' relative
intent, knowledge, access to information and opportunity to correct or prevent
such statement or omission. The Company, the Guarantors and each Holder of
Transfer Restricted Securities agree that it would not be just and equitable if
contributions pursuant to this Section 9 were determined by pro rata allocation
or by any other method of allocation that does not take into account the
equitable considerations referred to above. Notwithstanding the provisions of
this Section 9, (i) in no case shall any Holder be required to contribute any
amount in excess of the amount by which the proceeds received by such Holder
upon the sale of the Transfer Restricted Securities giving rise to such
obligation exceeds the amount of any damages that such Holder has otherwise been
required to pay by reason of any untrue or alleged untrue statement or omission
or alleged omission and (ii) no person guilty of fraudulent misrepresentation
(within the meaning of Section 11(f) of the Act) shall be entitled to
contribution from any Person who was not guilty of such fraudulent
misrepresentation. For
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purposes of this Section 9, (A) each Person, if any, who controls any of the
Holders within the meaning of Section 15 of the Act or Section 20(a) of the
Exchange Act and (B) the respective officers, directors, partners, employees,
representatives and agents of such Holder or any controlling Person shall have
the same rights to contribution as the Holders, and each Person, if any, who
controls the Company or any Guarantor within the meaning of Section 15 of the
Act or Section 20(a) of the Exchange Act shall have the same rights to
contribution as the Company and the Guarantors, subject in each case to clauses
(i) and (ii) of this Section 9. Any party entitled to contribution will,
promptly after receipt of notice of commencement of any action, suit or
proceeding against such party in respect of which a claim for contribution may
be made against another party or parties under this Section 9, notify such party
or parties from whom contribution may be sought, but the failure to so notify
such party or parties shall not relieve the party or parties from whom
contribution may be sought from any obligation it or they may have under this
Section 9 or otherwise, except to the extent it or they have been prejudiced in
any material respect by such failure. No party shall be liable for contribution
with respect to any action or claim settled without its prior written consent,
provided that such written consent was not unreasonably withheld.
SECTION 10.
RULE 144A
The Company and the Guarantors hereby agree with each Holder, for so
long as any Transfer Restricted Securities remain outstanding, to make
available, upon request, to any Holder of Transfer Restricted Securities in
connection with any sale thereof and any prospective purchaser of such Transfer
Restricted Securities from such Holder, the information required by Rule
144A(d)(4) under the Act in order to permit resales of such Transfer Restricted
Securities pursuant to Rule 144A.
SECTION 11.
PARTICIPATION IN UNDERWRITTEN REGISTRATIONS
No Holder may participate in any Underwritten Registration hereunder
unless such Holder (a) agrees to sell such Holder's Transfer Restricted
Securities on the basis provided in any underwriting arrangements approved by
the Persons entitled hereunder to approve such arrangements and (b) completes
and executes all reasonable questionnaires, powers of attorney, indemnities,
underwriting agreements, lock-up letters and other documents required under the
terms of such underwriting arrangements.
SECTION 12.
SELECTION OF UNDERWRITERS
The Holders of Transfer Restricted Securities covered by the Shelf
Registration Statement who desire to do so may sell such Transfer Restricted
Securities in an Underwritten Offering. In any such Underwritten Offering, the
investment banker or investment bankers and manager or managers that will
administer the offering will be selected by the Company; provided, however, that
such investment bankers and managers must be reasonably satisfactory
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to the Holders of a majority in aggregate principal amount of the Transfer
Restricted Securities included in such offering.
SECTION 13.
MISCELLANEOUS
(a) No Inconsistent Agreements. The Company and the Guarantors shall
not, on or after the date of this Agreement, enter into any agreement with
respect to its securities that is inconsistent with the rights granted to the
Holders in this Agreement or otherwise conflicts with the provisions hereof. The
rights granted to the Holders hereunder do not in any way conflict with and are
not inconsistent with the rights granted to the holders of the Company's or any
Guarantor's securities under any agreement in effect on the date hereof.
(b) [ Intentionally omitted. ]
(c) Amendments and Waivers. The provisions of this Agreement may not be
amended, modified or supplemented, and waivers or consents to or departures from
the provisions hereof may not be given unless the Company has obtained the
written consent of Holders of a majority of the outstanding principal amount of
Transfer Restricted Securities; provided, however, that the Company may amend
this Agreement to include or exclude a Guarantor as a party hereto in the event
that, pursuant to the terms of the Indenture, such Guarantor is required to
provide a Subsidiary Guarantee for the Notes or is released from such
obligation. Notwithstanding the foregoing, a waiver or consent to departure from
the provisions hereof that relates exclusively to the rights of Holders whose
securities are being tendered pursuant to the Exchange Offer and that does not
affect directly or indirectly the rights of other Holders whose securities are
not being tendered pursuant to such Exchange Offer may be given by the Holders
of a majority of the outstanding principal amount of Transfer Restricted
Securities being tendered.
(d) Notices. All notices and other communications provided for or
permitted hereunder shall be made in writing by hand-delivery, first-class mail
(registered or certified, return receipt requested), telecopier, or air courier
guaranteeing overnight delivery:
(i) if to a Holder, at the address set forth on the records of
the Registrar under the Indenture, with a copy to the Registrar under
the Indenture; and
(ii) if to the Company or any Guarantor:
XXXXXXXX-LEEVAC Marine Services, Inc.
000 X. Xxxxxxxx Xxxxxxxxx
Xxxxxxxxxx, Xxxxxxxxx 00000
Telecopier No.: (000) 000-0000
Attention: Chief Financial Officer
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with a copy to:
R. Xxxxx Xxxxxx, Xx.
Xxxxxxxx Xxxxxxxx & Xxxxxx
00000 Xxxxxx'x Xxxx Xxxx, Xxxxx 000
Xxx Xxxxxxxxx, Xxxxx 00000
Telecopier No.: (000) 000-0000
All such notices and communications shall be deemed to have been duly
given: at the time delivered by hand, if personally delivered; five Business
Days after being deposited in the mail, postage prepaid, if mailed; when receipt
acknowledged, if telecopied; and on the next Business Day, if timely delivered
to an air courier guaranteeing overnight delivery.
Copies of all such notices, demands or other communications shall be
concurrently delivered by the Person giving the same to the Trustee at the
address specified in the Indenture.
(f) Successors and Assigns. This Agreement shall inure to the benefit
of and be binding upon the successors and assigns of each of the parties,
including without limitation and without the need for an express assignment, the
successors and assigns of subsequent Holders of Transfer Restricted Securities;
provided, however, that this Agreement shall not inure to the benefit of or be
binding upon a successor or assign of a Holder unless and to the extent such
successor or assign acquired Transfer Restricted Securities from such Holder.
(g) Counterparts. This 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.
(h) Headings. The headings in this Agreement are for convenience of
reference only and shall not limit or otherwise affect the meaning hereof.
(i) Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
(j) Severability. In the event that any one or more of the provisions
contained herein, or the application thereof in any circumstance, is held
invalid, illegal or unenforceable, the validity, legality and enforceability of
any such provision in every other respect and of the remaining provisions
contained herein shall not be affected or impaired thereby.
[Signature pages to follow]
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IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first written above.
XXXXXXXX-LEEVAC MARINE SERVICES, INC.
By: /s/ XXXXX X. XXXX, XX.
---------------------------------------------------
Xxxxx X. Xxxx, Xx.
Vice President and Chief Financial Officer
LEEVAC MARINE, INC.
By: /s/ XXXXX X. XXXX, XX.
---------------------------------------------------
Xxxxx X. Xxxx, Xx.
Vice President and Chief Financial Officer
XXXXXXXX OFFSHORE SERVICES, INC.
By: /s/ XXXXX X. XXXX, XX.
---------------------------------------------------
Xxxxx X. Xxxx, Xx.
Vice President and Chief Financial Officer
ENERGY SERVICES PUERTO RICO, INC.
By: /s/ XXXXX X. XXXX, XX.
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Xxxxx X. Xxxx, Xx.
Vice President and Chief Financial Officer
XXXXXXXX-LEEVAC MARINE OPERATORS, INC.
By: /s/ XXXXX X. XXXX, XX.
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Xxxxx X. Xxxx, Xx.
Vice President and Chief Financial Officer
22
XXXXXXXX-LEEVAC MARINE SERVICES, INC.
10 5/8% SERIES A SENIOR NOTES DUE 2008
REGISTRATION RIGHTS AGREEMENT
24
Accepted and agreed to as of the date first above written:
RBC DOMINION SECURITIES CORPORATION
XXXXXXX LYNCH, PIERCE, XXXXXX & XXXXX INCORPORATED
By: RBC DOMINION SECURITIES CORPORATION
By: /s/ XXXXXXX XXXXXXXXXX
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Xxxxxxx Xxxxxxxxxx
Managing Director
23
XXXXXXXX-LEEVAC MARINE SERVICES, INC.
10 5/8% SERIES A SENIOR NOTES DUE 2008
REGISTRATION RIGHTS AGREEMENT
