EXHIBIT 10.08
Execution Copy
REGISTRATION RIGHTS AGREEMENT
REGISTRATION RIGHTS AGREEMENT (the "Agreement") dated August
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19, 1998, by and among GREAT LAKES DREDGE & DOCK CORPORATION, a Delaware
corporation (the "Company"), VECTURA HOLDING COMPANY LLC, a Delaware limited
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liability company ("Vectura"), the individuals identified on the signature pages
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of this Agreement as Management Investors, the individuals who join in the
Stockholders' Agreement and this Agreement as Management Investors
(collectively, the "Management Investors") and other Persons who may from time
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to time become parties to this Agreement. Vectura and the Management Investors
are sometimes referred to hereinafter individually as an "Investor" and
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collectively as the "Investors."
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Background
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The Company, Vectura and the Management Investors are parties
to, and this Agreement is made pursuant to, the Stockholders' Agreement. In
order to induce the Investors to enter into the Stockholders' Agreement, the
Company has agreed to provide the registration rights set forth in this
Agreement.
Terms
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In consideration of the mutual covenants contained herein and
intending to be legally bound hereby, the parties hereto agree as follows:
1. Definitions
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As used in this Agreement, the following capitalized terms
shall have the following meanings:
"Affiliate" has the meaning set forth in Rule 12b-2 of the
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Rules promulgated under the Exchange Act.
"Commission" means the Securities and Exchange Commission.
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"Common Stock" means the Class A Common Stock, par value $.01
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per share, of the Company and any capital stock of the Company issued or
issuable with respect to such common stock by way of or in connection with any
stock dividend or distribution payable thereon or stock split, reverse stock
split, recapitalization, reclassification, reorganization, exchange, subdivision
or combination thereof.
"Company Registrable Securities" has the meaning set forth in
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Section 4(b) of this Agreement.
"Damages" has the meaning set forth in Section 5(a) of this
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Agreement.
"Demand Registration" and "Demand Registration Requests" have
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the meanings set forth in Section 3(a) of this Agreement.
"Exchange Act" means the Securities Exchange Act of 1934, as
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amended from time to time.
"Incidental Registration" has the meaning set forth in Section
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2(a) of this Agreement.
"Inspector" and "Inspectors" have the meanings set forth in
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Section 4(j) of this Agreement.
"Other Registrable Securities" means (i) any shares of Common
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Stock issued or issuable to or otherwise acquired by the Management Investors on
or after the date hereof and (ii) any shares of capital stock of the Company
issued or issuable with respect to the securities referred to in clause (i)
above by way of a stock dividend or stock split or in connection with a
combination of shares, recapitalization, merger, consolidation or other
reorganization, provided, however, that Incentive Shares (as defined in the
Stockholders' Agreement) of Common Stock issued to Management Investors (and any
shares of capital stock of the Company issued or issuable with respect to such
Incentive Shares by way of a stock dividend or stock split or in connection with
a combination of shares, recapitalization, merger, consolidation or other
reorganization) shall be deemed to be Other Registrable Securities only to the
extent that such shares are subject to the Company's Purchase Option (as defined
in the Stockholders' Agreement) at the Adjusted Book Value Price (as defined in
the Stockholders' Agreement). For purposes of this Agreement, a Person will be
deemed to be a holder of Other Registrable Securities whenever such Person has
the right to acquire, directly or indirectly, such Other Registrable Securities
(upon conversion or exercise in connection with a transfer of securities or
otherwise, but disregarding any restrictions or limitations upon the exercise of
such right), whether or not such acquisition has actually been effected, but in
the case of Registrable Securities subject to vesting, only to the extent that
such Person's right to acquire such Registrable Securities has vested and
provided, further, that each Other Registrable Security shall cease to be an
Other Registrable Security when (i) it has been effectively registered under the
Securities Act and disposed of in accordance with the Registration Statement
covering it; (ii) it is distributed to the public pursuant to Rule 144 (or any
similar provisions then in force) under the Securities Act; or (iii) it has
otherwise been transferred and a new certificate or other evidence of ownership
for it not bearing or requiring a legend as set forth in Section 2.2 of the
Stockholders' Agreement (or other legend of similar import) and not subject to
any stop transfer order has been delivered by or on behalf of the Company and no
other restriction on transfer exists under the Securities Act.
"Person" means an individual, partnership, limited liability
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company, corporation, trust or unincorporated organization, or a government or
agency or political subdivision thereof.
"Prospectus" means the prospectus included in any Registration
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Statement, as amended or supplemented by any prospectus supplement with respect
to the terms of the offering of any portion of the Registrable Securities
covered by such Registration Statement and all other amendments and supplements
to such prospectus, including post-effective amendments, and all material
incorporated by reference in such prospectus.
"Records" has the meaning set forth in Section 4(j) of this
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Agreement.
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"Registration Expenses" means the costs and expenses of all
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registrations and qualifications under the Securities Act, and of all other
actions the Company is required to take in order to effect the registration of
Registrable Securities under the Securities Act pursuant to this Agreement
(including all federal and state registration and filing fees, printing
expenses, fees and disbursements of counsel for the Company and the fees and
expenses of the Company's independent public accountants (including the expenses
of any special audit and "cold comfort" letters required by or incident to such
registration)) other than the costs and expenses of any Investors whose
Registrable Securities are to be registered pursuant to this Agreement
comprising underwriters' commissions, brokerage fees, transfer taxes or the fees
and expenses of any accountants or other representatives retained by any
Investor.
"Registration Statement" means any registration statement of
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the Company which covers any of the Registrable Securities pursuant to the
provisions of this Agreement, including the Prospectus, amendments and
supplements to such registration statement, including post-effective amendments,
all exhibits and all material incorporated by reference in such registration
statement.
"Registrable Securities" means the Vectura Registrable
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Securities or the Other Registrable Securities.
"Securities Act" means the Securities Act of 1933, as amended
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from time to time.
"Stockholders' Agreement" means the Securities Purchase and
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Holders Agreement dated as of the date hereof by and among the Company, Vectura
and the Management Investors and other Persons party thereto from time to time.
"Special Registration Statement" means (i) a registration
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statement on Forms S-8 or S-4 or any similar or successor form or any other
registration statement relating to an exchange offer or an offering of
securities solely to the Company's employees or security holders or (ii) a
registration statement registering a Unit Offering.
"Unit Offering" means a public offering of a combination of
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debt and equity securities of the Company in which (i) not more than 20% of the
gross proceeds received from the sale of such securities is attributed to such
equity securities, and (ii) after giving effect to such offering, the Company
does not have a class of equity securities required to be registered under the
Exchange Act.
"underwritten registration or "underwritten offering" means a
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registration in which securities of the Company are sold to an underwriter for
reoffering to the public.
"Vectura Registrable Securities" means (i) any shares of
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Common Stock issued or issuable to or otherwise acquired by Vectura on or after
the date hereof and (ii) any shares of capital stock of the Company issued or
issuable with respect to the securities referred to in clause (i) above by way
of a stock dividend or stock split or in connection with a combination of
shares, recapitalization, merger, consolidation or other reorganization. For
purposes of this Agreement, a Person will be deemed to be a holder of Vectura
Registrable Securities whever such Person has the right to acquire, directly or
indirectly, such Vectura Registrable Securities (upon conversion or exercise in
connection with a transfer of securities or otherwise, but disregarding any
restrictions or limitations upon the exercise of such right), whether or not
such acquisition has actually been effected, provided, however,
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that each such share of Common Stock shall cease to be a Vectura Registrable
Security when (i) it has been effectively registered under the Securities Act
and disposed of in accordance with the Registration Statement covering it; (ii)
it is distributed to the public pursuant to Rule 144 (or any similar provisions
then in force) under the Securities Act; or (iii) it has otherwise been
transferred and a new certificate or other evidence of ownership for it not
bearing or requiring a legend as set forth in Section 2.2 of the Stockholders'
Agreement (or other legend of similar import) and not subject to any stop
transfer order has been delivered by or on behalf of the Company and no other
restriction on transfer exists under the Securities Act.
2. Incidental Registration.
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(a) Right to Include Common Stock. If the Company at any time
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proposes to register any of its Common Stock under the Securities Act (other
than on a Special Registration Statement), whether or not for sale for its own
account, the Company will give written notice at least 30 days prior to the
anticipated effective date of the registration statement filed or to be filed in
connection with such registration to all holders of Registrable Securities of
its intention to issue its Common Stock under the Securities Act and of such
holders' rights under this Section 2. Upon the written request of any such
holders of Registrable Securities made within 15 days of the date of the
foregoing notice from the Company (which request shall specify the aggregate
number of the Registrable Securities to be registered and will also specify the
intended method of disposition thereof), the Company will effect the
registration under the Securities Act of all Registrable Securities which the
Company has been so requested to register by the holders thereof (an "Incidental
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Registration"), to the extent required to permit the public disposition (in
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accordance with such intended methods thereof) of the Registrable Securities to
be so registered; provided that (i) if, any time after giving written notice of
its intention to register shares of Common Stock and prior to the effective date
of the Registration Statement filed in connection with such registration, the
Company shall determine for any reason not to register the Common Stock, the
Company shall give written notice of such determination to each holder of
Registrable Securities and, thereupon, shall be relieved of its obligation to
register any Registrable Securities in connection with such registration (but
not from its obligation to pay the Registration Expenses in connection
therewith); (ii) if a registration requested pursuant to this Section 2 shall
involve an underwritten public offering, any holder of Registrable Securities
requesting to be included in such registration may elect, in writing at least 25
days prior to the effective date of the Registration Statement filed in
connection with such registration, not to register such securities in connection
with such registration; and (iii) if, at any time after the 180-day or shorter
period specified in Section 2(b), the sale of the securities has not been
completed, the Company may withdraw from the registration on a pro rata basis
(based on the number of Registrable Securities requested by each holder of
Registrable Securities to be so registered) the Registrable Securities which the
Company has been requested to register and which have not been sold.
Notwithstanding the foregoing, in connection only with the initial registered
public offering of the Common Stock, which offering is a primary offering, no
Registrable Securities shall be included in such registration without the prior
written consent of the holders of a majority of the Vectura Registrable
Securities.
(b) Priority in Incidental Registrations. If a registration
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pursuant to Section 2(a) involves an underwritten offering and the managing
underwriter advises the
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Company in writing that, in its opinion, the total number of shares of Common
Stock to be included in such registration, including the Registrable Securities
requested to be included pursuant to this Section 2, exceeds the maximum number
of shares of Common Stock specified by the managing underwriter that may be
distributed without adversely affecting the price, timing or distribution of
such shares of Common Stock, then the Company shall include in such registration
only such maximum number of Registrable Securities which, in the reasonable
opinion of such underwriter or underwriters, can be sold in the following order
of priority: (i) first, all of the shares of Common Stock that the Company
proposes to sell for its own account, if any; (ii) second, all of the shares of
Common Stock being registered by holder(s) of Registrable Securities pursuant to
a Demand Registration; and (iii) third, the Registrable Securities of the
holder(s) of Registrable Securities requested to be included in such Incidental
Registration. To the extent that shares of Common Stock to be included in the
Incidental Registration must be allocated among the holders(s) of Registrable
Securities pursuant to clause (iii) above, such shares shall be allocated pro
rata among the holders(s) of Registrable Securities based on the number of
shares of Common Stock that such holders(s) of Registrable Securities shall have
requested to be included therein. Notwithstanding the foregoing, if an
Incidental Registration is an underwritten offering, the managing underwriter or
underwriters may select shares for inclusion, or exclude shares completely, in
such Incidental Registration on a basis other than a pro rata basis if, in the
reasonable opinion of such underwriter or underwriters, selection on such other
basis, or inclusion of such shares, would be material to the success of the
offering.
(c) Selection of Underwriters. If any Incidental Registration is
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an underwritten offering, the investment banker(s) and manager(s) for the
offering will be selected by the Company.
(d) Expenses. The Company will pay all Registration Expenses in
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connection with any registration of Registrable Securities requested pursuant to
this Section 2.
(e) Liability for Delay. The Company shall not be held responsible
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for any delay in the filing or processing of a Registration Statement which
includes any Registrable Securities due to requests by holders of Registrable
Securities pursuant to this Section 2 nor for any delay in requesting the
effectiveness of such Registration Statement.
(f) Participation in Underwritten Registrations. No holder of
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Registrable Securities may participate in any underwritten registration
hereunder unless such holder (i) agrees to sell his or its Common Stock on the
basis provided in any underwriting arrangements approved by the persons who have
selected the underwriter and (ii) accurately completes in a timely manner and
executes all questionnaires, powers of attorney, indemnification agreements,
underwriting agreements and other documents customarily required under the terms
of such underwriting arrangements.
3. Demand Registration
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(a) Right to Demand Registration. Subject to Section 3(b) below,
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the holders of a majority of Vectura Registrable Securities shall be entitled to
make written requests ("Demand Registration Requests") at any time and from time
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to time to the Company for registration with the Commission under and in
accordance with the provisions of the Securities
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Act (including, but not limited to, registrations under Rule 415 promulgated
under the Securities Act) of all or part of the Vectura Registrable Securities
owned by them (a "Demand Registration") (which Demand Registration Request shall
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specify the intended number of Vectura Registrable Securities to be disposed of
by such holders, the anticipated price range for such offering and the intended
method of disposition thereof); provided that (i) the Company may, if the Board
of Directors so determines in the exercise of its reasonable judgment, that due
to a pending or contemplated acquisition or disposition or public offering it
would be inadvisable to effect such Demand Registration at such time, defer such
Demand Registration for a single period not to exceed 180 days. Within 10 days
after receipt of the Demand Registration Request, the Company will serve written
notice of such Demand Registration Request to all holders of Registrable
Securities and, subject to paragraph (b) below, the Company will include in such
registration all Registrable Securities of such holders with respect to which
the Company has received written requests for inclusion therein from such
holders within 15 business days after duly given to the applicable holder of the
notice from the Company. All requests made pursuant to this paragraph 4(a) will
specify the aggregate number of the Registrable Securities to be registered and
will also specify the intended methods of disposition thereof.
(b) Priority in Demand Registrations. The Company will not include
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in any Demand Registration any securities (other than Company Registrable
Securities) which are not Registrable Securities without the prior written
consent of at least a majority of the Vectura Registrable Securities included in
such registration. If any of the Registrable Securities proposed to be
registered pursuant to a Demand Registration are to be sold in a firm commitment
underwritten offering and the managing underwriter or underwriters of a Demand
Registration advise the Company and the holders of such Registrable Securities
in writing that in its or their reasonable opinion the number of shares of
Common Stock proposed to be sold in such Demand Registration exceeds the maximum
number of shares specified by the managing underwriter that may be distributed
without adversely affecting the price, timing or distribution of the Common
Stock, the Company shall include in such registration only such maximum number
of Registrable Securities which, in the reasonable opinion of such underwriter
or underwriters can be sold in the following order of priority: (i) first, the
number of Vectura Registrable Securities requested to be included in such
registration, pro rata if necessary; (ii) second, the number of Company
Registrable Securities requested to be included in such registration, if any;
(iii) third, all Other Registrable Securities requested to be included in such
registration, pro rata if necessary; (iv) fourth, all other securities requested
to be included in such registration pursuant to "demand registration" rights
granted to other Persons, provided that such rights will have been granted only
as permitted by this Agreement; and (v) fifth, shares of Common Stock held by
other holders requested to be included in such registration, pro rata if
necessary.
(c) Selection of Underwriters. In the case of a Demand
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Registration for an underwritten offering, the holders of a majority of the
Vectura Registrable Securities to be included in such Demand Registration will
have the right to select the investment banker(s) and manager(s) to administer
the offering, which investment banker(s) and manager(s) will be nationally
recognized, subject to the Company's approval which will not be unreasonably
withheld.
(d) Expenses. The Company will pay all Registration Expenses in
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connection with any registration of Registrable Securities requested pursuant to
this Section 3.
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(e) Other Registration Rights. Except as provided in this
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Agreement, the Company shall not grant to any Person the right to request the
Company to register any Common Stock under the Securities Act, or the right to
participate in any registration of Common Stock of the Company under the
Securities Act, without the prior written consent of the holders of a majority
of Vectura Registrable Securities outstanding at the time of such grant.
4. Registration Procedures. If and whenever the Company is required to
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effect or cause the registration of any Registrable Securities under the
Securities Act as provided in this Agreement, the Company will, as expeditiously
as possible:
(a) prepare and file with the Commission a Registration Statement
with respect to such Registrable Securities, and use its best efforts to cause
such Registration Statement to become effective, provided, that before filing
any Registration Statement the Company will furnish to the counsel selected by
the holders of a majority of the Registrable Securities covered by such
Registration Statement copies of all such documents proposed to be filed;
(b) in connection with any Demand Registration, if requested by
the party requesting such Demand Registration, use its best efforts to cause to
be included in such registration, a primary offering by the Company of the
Company's shares of Common Stock having an aggregate value (based on the
midpoint of the proposed offering price range specified in the Registration
Statement used to offer such securities) of up to $20 million ("Company
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Registrable Securities");
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(c) prepare and file with the Commission such amendments and
supplements to such Registration Statement and the Prospectus used in connection
therewith as may be necessary to keep such Registration Statement effective for
a period of not less than 180 days or such shorter period which will terminate
when all Registrable Securities covered by such Registration Statement have been
sold (but not before the expiration of the applicable period referred to in
Section 4(3) of the Securities Act and Rule 174 promulgated thereunder, if
applicable) and comply with the provisions of the Securities Act with respect to
the disposition of all securities covered by such Registration Statement during
such period in accordance with the intended methods of disposition by the seller
or sellers thereof set forth in such Registration Statement;
(d) furnish to each seller of such Registrable Securities such
number of copies of such Registration Statement and of each such amendment and
supplement thereof (in each case including all exhibits), such number of copies
of the Prospectus included in such Registration Statement (including each
preliminary Prospectus and summary Prospectus), in conformity with the
requirements of the Securities Act, and such other documents as such seller may
reasonably request in order to facilitate the disposition of the Registrable
Securities by such seller;
(e) use its best efforts to register or qualify such Registrable
Securities covered by such Registration Statement under such other securities or
Blue Sky laws of such jurisdictions as each seller shall request, and do any and
all other acts and things which may be
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necessary or advisable to enable such seller to consummate the disposition in
such jurisdictions of the Registrable Securities owned by such seller; provided,
however, that the Company shall not be required to qualify generally to do
business in any jurisdiction where it is not then so qualified or to take any
action which would subject it to general service of process in any such
jurisdiction where it is not then so subject or subject itself to general
taxation in any jurisdiction where it is not then so subject;
(f) immediately notify each seller of any Registrable Securities
covered by such Registration Statement, at any time when a Prospectus relating
thereto is required to be delivered under the Securities Act within the
appropriate period mentioned in clause (c) of this Section 4, of the Company
becoming aware that the Prospectus included in such Registration Statement, as
then in effect, includes an untrue statement of a material fact 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, and within ten days prepare and furnish to all sellers a reasonable
number of copies of an amended or supplemental Prospectus as may be necessary so
that, as thereafter delivered to the purchasers of such Registrable Securities,
such Prospectus shall not include an untrue statement of a material fact or omit
to state a material fact required to be stated therein or necessary to make the
statements therein not misleading in the light of the circumstances then
existing;
(g) cause all such Registrable Securities to be listed on each
securities exchange on which similar securities issued by the Company are then
listed and, if not so listed, to be listed on the Nasdaq National Market of The
Nasdaq Stock Market, Inc. ("Nasdaq"), and arrange for at least two market makers
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to register as such with respect to the Registrable Securities with the National
Association of Securities Dealers, Inc.
(h) provide an independent transfer agent and registrar for such
Registrable Securities covered by such Registration Statement not later than the
effective date of such Registration Statement;
(i) furnish to each seller of Registrable Securities covered by
such Registration Statement an original, manually signed copy, addressed to such
seller (and the underwriters, if any) of:
(i) an opinion of counsel for the Company, dated the
effective date of such Registration Statement (or, if such registration
involves an underwritten public offering, dated the date of the closing
under the underwriting agreement), reasonably satisfactory in form and
substance to the sellers of not less than 50% of such Registrable
Securities (and the managing underwriter, if any); and
(ii) a "comfort letter," dated the effective date of such
Registration Statement (or, if such registration involves an
underwritten public offering, dated the date of the closing under the
underwriting agreement), signed by the independent public accountants
who have certified the Company's financial statements included in such
Registration Statement, covering such matters with
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respect to such Registration Statement as are customarily covered in
accountants' letters delivered to the underwriters in underwritten
offerings of securities as may reasonably be requested by the sellers of
not less than 50% of such Registrable Securities (and the managing
underwriter, if any);
(j) make available for inspection by any seller of such
Registrable Securities covered by such Registration Statement, by any
underwriter participating in any disposition to be effected pursuant to such
Registration Statement and by any attorney, accountant or other agent retained
by any such seller or any such underwriter (any of the foregoing persons,
including such seller, individually an "Inspector" and collectively the
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"Inspectors"), all pertinent financial and other records, pertinent corporate
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documents and properties of the Company as shall be reasonably requested by an
Inspector (collectively, the "Records"), and cause all of the Company's
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officers, directors and employees to supply all information reasonably requested
by any Inspector in connection with such Registration Statement; provided that
any Records that are designated by the Company in writing as confidential shall
be kept confidential by the Inspectors unless (A) the disclosure of such Records
is necessary to avoid or correct a misstatement or omission in such Registration
Statement or (B) the release of such Records is ordered pursuant to a subpoena
or other order from a court of competent jurisdiction or by any regulatory
authority having jurisdiction. Each Investor agrees that non-public information
obtained by it as a result of such Inspections shall be deemed confidential and
acknowledges its obligations under the federal securities laws not to trade any
securities of the Company on the basis of material non-public information;
(k) enter into such customary agreements (including underwriting
agreements in customary form) and take all such other actions as the holders of
a majority of the Registrable Securities being sold or the underwriters, if any,
reasonably request in order to expedite or facilitate the disposition of such
Registrable Securities (including, without limitation, effecting a stock split
or combination of shares);
(l) otherwise use its best efforts to comply with all applicable
rules and regulations of the Commission, and make available to its security
holders, as soon as reasonably practicable, an earning statement covering the
period of at least 12 months beginning with the first day of the Company's first
full calendar quarter after the effective date of the Registration Statement,
which earning statement shall satisfy the provisions of Section 11(a) of the
Securities Act and Rule 158 promulgated thereunder;
(m) permit any holder of Registrable Securities which holder, in
its sole and exclusive judgment, might be deemed to be an underwriter or a
controlling person of the Company, to participate in the preparation of such
registration or comparable statement and to require the insertion therein of
material, furnished to the Company in writing, which in the reasonable judgment
of such holder and its counsel should be included;
(n) in the event of the issuance of any stop order suspending the
effectiveness of a registration statement, or of any order suspending of
preventing the use of any related Prospectus or suspending the qualification of
any Common Stock included in such
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Registration Statement for sale in any jurisdiction, the Company will use its
reasonable best efforts promptly to obtain the withdrawal of such order; and
(o) use its best efforts to cause such Registrable Securities
covered by such registration Statement to be registered or approved by such
other governmental agencies or authorities as may be necessary to enable the
sellers thereof to consummate the disposition of such Registrable Securities.
The Company may require each seller of Registrable Securities as to
which any registration is being effected promptly to furnish to the Company such
information regarding the distribution of such Registrable Securities as may be
legally required. Such information shall be furnished in writing and shall state
that it is being furnished for use in the Registration Statement.
Each holder of Registrable Securities agrees by acquisition of such
Registrable Securities that, upon receipt of any notice from the Company of the
happening of any event of the kind described in clause (f) of this Section 4,
such holder will forthwith discontinue disposition of Registrable Securities
pursuant to the Registration Statement covering such Registrable Securities
until such holder's receipt of the copies of the supplemented or amended
Prospectus contemplated by clause (f) of this Section 4, and, if so directed by
the Company, such 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 Registrable Securities current at the time of
receipt of the Company's notice. In the event the Company shall give any such
notice, the period mentioned in clause (c) of this Section 4 shall be extended
by the number of days during the period from and including the date of the
giving of such notice pursuant to clause (f) of this Section 4 up to and
including the date when each seller of Registrable Securities covered by such
Registration Statement shall have received the copies of the supplemented or
amended Prospectus contemplated by clause (f) of this Section 4.
If any Registration Statement or comparable statement contemplated by
this Agreement refers to any holder by name or otherwise as the holder of any
securities of the Company and if, in its sole and exclusive judgment, such
holder is or might be deemed to be a controlling person of the Company, such
holder shall have the right to require (i) the insertion therein of language, in
form and substance satisfactory to such holder and presented to the Company in
writing, to the effect that the holding by such holder of such securities is not
to be construed as a recommendation by such holder of the investment quality of
the Company's securities covered thereby and that such holding does not imply
that such holder will assist in meeting any future financial requirements of the
Company, or (ii) in the event that such reference to such holder by name or
otherwise is not required by the Securities Act or any similar federal statute
then in force, the deletion of the reference to such holder, provided that with
respect to this clause (ii) such holder shall furnish to the Company an opinion
of counsel to such effect which opinion and counsel shall be reasonably
satisfactory to the Company.
5. Indemnification.
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(a) Indemnification by the Company. The Company hereby agrees
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to indemnify and hold harmless each holder of Registrable Securities which shall
have been registered under the Securities Act, and such holder's officers,
directors and agents and each
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other Person, if any, who controls such holder within the meaning of the
Securities Act and each other Person (including underwriters) who or which
participates in the offering of such Registrable Securities against any losses,
claims, damages, liabilities, reasonable attorneys' fees, costs or expenses
(collectively, the "Damages"), joint or several, to which such holder or
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controlling Person or participating Person may become subject under the
Securities Act or otherwise, insofar as such Damages (or proceedings in respect
thereof) arise out of or are based upon any untrue statement or alleged untrue
statement of any material fact made by the Company or its agents contained in
any Registration Statement under which such Registrable Securities are
registered under the Securities Act, in any preliminary Prospectus or final
Prospectus contained therein, or in any amendment or supplement 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 not misleading, and will reimburse such holder of Registrable
Securities or such controlling Person or participating Person in connection with
investigating or defending any such Damages or proceeding; provided, however,
that the Company will not be liable in any such case to the extent that any such
Damages arise out of or are based upon (i) an untrue statement or alleged untrue
statement or omission or alleged omission made in such Registration Statement,
said preliminary or final Prospectus or said amendment or supplement in reliance
upon and in conformity with written information furnished to the Company by such
holder or such controlling or participating Person, as the case may be,
specifically for use in the preparation thereof; or (ii) an untrue statement or
alleged untrue statement, omission or alleged omission in a Prospectus if such
untrue statement or alleged untrue statement, omission or alleged omission is
corrected in an amendment or supplement to the Prospectus which amendment or
supplement is delivered to such holder in a timely manner and such holder
thereafter fails to deliver such Prospectus as so amended or supplemented prior
to or concurrently with the sale of such Registrable Securities to the Person
asserting such Damages.
(b) Indemnification by the Holders of Registrable Securities
--------------------------------------------------------
Which Are Registered. It shall be a condition of the Company's obligations under
--------------------
this Agreement to effect any registration under the Securities Act that there
shall have been delivered to the Company an agreement or agreements duly
executed by each holder of Registrable Securities to be so registered, whereby
such holder agrees to indemnify and hold harmless the Company, its directors,
officers and agents and each other Person, if any, which controls the Company
within the meaning of the Securities Act against any Damages, joint or several,
to which the Company, or such other Person or such Person controlling the
Company may become subject under the Securities Act or otherwise, but only to
the extent that such Damages (or proceedings in respect thereof) arise out of or
are based upon any untrue statements or alleged untrue statement of any material
fact contained, on the effective date thereof, in any Registration Statement
under which such Registrable Securities are registered under the Securities Act,
in any preliminary Prospectus or final Prospectus contained therein or in any
amendment or supplement thereto, or arise out of or are based upon the omission
or alleged omission to state therein a material fact required to be stated
therein or necessary to make the statements therein not misleading, which, in
each such case, has been made in or omitted from such Registration Statement,
said preliminary or final Prospectus or said amendment or supplement in reliance
upon, and in conformity with, written information furnished to the Company by
such holder of Registrable Securities specifically for use in the preparation
thereof. The Company shall be entitled to receive indemnities from
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underwriters, selling brokers, dealer managers and similar securities industry
professionals participating in the distribution, to the same extent as provided
above, with respect to information furnished in writing by such Persons
specifically for inclusion in any Prospectus or Registration Statement.
(c) Conduct of Indemnification Proceedings. Any Person
--------------------------------------
entitled to indemnification hereunder shall (i) give prompt written notice to
the indemnifying party of the commencement of any action or proceeding involving
a claim referred to in the preceding paragraphs of this Section 5; and (ii)
unless the indemnified party has been advised by its counsel that a conflict of
interest exists between such indemnified and indemnifying parties under
applicable standards of professional responsibility, with respect to such claim,
permit such indemnifying party to assume the defense of such claim with counsel
reasonably satisfactory to the indemnified party. Whether or not such defense is
assumed by the indemnifying party, the indemnifying party will not be subject to
any liability for any settlement made without its consent (but such consent will
not be unreasonably withheld). No indemnifying party will consent to the entry
of any judgment or enter into any settlement (i) that 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 of such claim or
litigation and (ii) except for judgments or settlements calling for the payment
of money only, without the consent of the indemnified party (which consent will
not be unreasonably withheld). An indemnifying party who is not entitled to, or
elects not to, assume the defense of the claim, will not be obligated to pay the
fees and expenses of more than one counsel for all parties indemnified by such
indemnifying party with respect to such claim, unless in the reasonable judgment
of any indemnified party a conflict of interest may exist between such
indemnified party and any other such indemnified parties with respect to such
claim, in which event the indemnifying party shall be obligated to pay the fees
and expenses of such additional counsel or counsels.
(d) Contribution. If for any reason the indemnification
------------
provided for in the preceding Sections 6(a) or 6(b) is unavailable to an
indemnified party in respect of any Damages referred to therein, the
indemnifying party shall contribute to the amount paid or payable by the
indemnified party as a result of such Damages in such proportion as is
appropriate to reflect not only the relative benefits received by the
indemnified party and the indemnifying party, but also the relative fault of the
indemnified party and the indemnifying party, as well as any other relevant
equitable considerations. The relative fault of such indemnifying party and
indemnified parties shall be determined by reference to, among other things,
whether any action in question, including any untrue or alleged untrue statement
of a material fact or omission or alleged omission to state a material fact, has
been made by, or relates to information supplied by, such indemnifying party or
indemnified parties, and the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent such action; provided,
however, that in no event shall the liability of any selling holder of
Registrable Securities hereunder be greater in amount than the difference
between the dollar amount of the proceeds received by such holder upon the sale
of the Registrable Securities giving rise to such contribution obligation and
all amounts previously contributed by such holder with respect to such Damages.
No Person guilty of fraudulent misrepresentation (within the meaning of
Section 11(f) of the Securities Act) shall be entitled to contribution from any
Person who was not guilty of fraudulent misrepresentation.
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(e) The indemnification provided for under this Agreement will
remain in full force and effect regardless of any investigation made by or on
behalf of any indemnified party or any officer, director or controlling Person
of such indemnified party and will survive the transfer of securities. The
Company also agrees to make such provisions, as are reasonably requested by any
indemnified party, for contribution to such party in the event the Company's
indemnification is unavailable for any reason.
6. Hold-Back Agreements
--------------------
(a) Restrictions on Public Sale by Holder of Registrable
----------------------------------------------------
Securities. Each holder of Registrable Securities whose Registrable Securities
----------
are eligible for inclusion in a Registration Statement filed pursuant to
Sections 3 or 4 agrees, if requested by the managing underwriter or underwriters
in an underwritten offering of any Registrable Securities, not to effect any
public sale or distribution of Registrable Securities, including a sale pursuant
to Rule 144 (or any similar provision then in force) under the Securities Act
(except as part of such underwritten registration), during the 10-day period
prior to, and during the 180-day period (or such shorter period as may be agreed
to by the parties hereto) beginning on the effective date of such Registration
Statement, to the extent timely notified in writing by the Company or the
managing underwriter or underwriters, provided that this provision shall not
apply to employees of Vectura, 399 Venture Partners, Inc. or wholly owned
subsidiaries of Citicorp.
The foregoing provisions shall not apply to any holder of Registrable
Securities if such holder is prevented by applicable statute or regulation from
entering into any such agreement; provided, however, that any such holder shall
undertake, in its request to participate in any such underwritten offering, not
to effect any public sale or distribution of Registrable Securities (except as
part of such underwritten registration) during such period unless it has
provided 45 days prior written notice of such sale or distribution to the
managing underwriter or underwriter.
(b) No Inconsistent Agreements. The Company will not enter
--------------------------
into any Agreement which is inconsistent with or violate the rights granted to
holders of Registrable Securities in this Agreement.
(c) Restrictions on Public Sale by the Company and Others. The
-----------------------------------------------------
Company shall (i) not effect any public sale or distribution of any of its
Common Stock for its own account during the 10-day period prior to, and during
the 180-day period beginning on, the effective date of a Registration Statement
filed pursuant to Sections 3 or 4 (except as part of a Special Registration
Statement), and (ii) use reasonable efforts to cause each holder of Common Stock
purchased from the Company at any time after the date of this Agreement (other
than in a registered public offering) to agree not to effect any public sale or
distribution of any such securities during such period, including a sale
pursuant to Rule 144 under the Securities Act (except as part of such
underwritten registration, if permitted).
7. Miscellaneous
-------------
(a) Amendment and Modification. This Agreement may be amended
--------------------------
or modified, or any provision hereof may be waived, provided that such amendment
or waiver is set
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forth in a writing executed by (i) the Company, (ii) Vectura (so long as Vectura
and its Affiliates own in the aggregate at least 15% of the outstanding Common
Stock on a fully diluted basis), (iii) the holders of a majority of the
outstanding Common Stock on a fully diluted basis (including Shares owned by
Vectura and its Affiliates) held by the Investors, and (iv) in the case of any
amendment which materially and adversely affects any Investor, such Investor. No
course of dealing between or among any persons having any interest in this
Agreement will be deemed effective to modify, amend or discharge any part of
this Agreement or any rights or obligations of any person under or by reason of
this Agreement.
(b) Survival of Representations and Warranties. All
------------------------------------------
representations, warranties, covenants and agreements set forth in this
Agreement will survive the execution and delivery of this Agreement and the
consummation of the transactions contemplated hereby, regardless of any
investigation made by an Investor or on its behalf.
(c) Successors and Assigns; Entire Agreement. This Agreement
----------------------------------------
and all of the provisions hereof shall be binding upon and inure to the benefit
of the parties hereto and their respective successors and permitted assigns and
executors, administrators and heirs. In addition, whether or not any express
assignment has been made, the provisions of this Agreement which are for the
benefit of purchasers or holders of Registrable Securities are also for the
benefit of, and enforceable by, any subsequent holder of Registrable Securities.
This Agreement sets forth the entire agreement and understandings among the
parties as to the subject matter hereof and merges and supersedes all prior
discussions and understandings of any and every nature among them.
(d) Separability. In the event that any provision of this
------------
Agreement or the application of any provision hereof is declared to be illegal,
invalid or otherwise unenforceable by a court of competent jurisdiction, the
remainder of this Agreement shall not be affected except to the extent necessary
to delete such illegal, invalid or unenforceable provision unless that provision
held invalid shall substantially impair the benefits of the remaining portions
of this Agreement.
(e) Notices. All notices provided for or permitted hereunder
-------
shall be made in writing by hand delivery, registered or certified first-class
mail, telecopier or air courier guaranteeing overnight delivery to the other
party at the following addresses (or at such other address as shall be given in
writing by any party to the others):
If to the Company to:
Great Lakes Dredge & Dock Corporation
▇▇▇▇ ▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Telecopy number: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
with required copies to:
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399 Venture Partners, Inc.
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Telecopy number: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
and
Dechert Price & ▇▇▇▇▇▇
4000 ▇▇▇▇ Atlantic Tower
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Telecopy number: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: G. ▇▇▇▇▇▇ ▇'▇▇▇▇▇▇▇
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If to Vectura to:
Ventura Holding Company LLC
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Telecopy number: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ III
with a required copy to:
Dechert Price & ▇▇▇▇▇▇
4000 ▇▇▇▇ Atlantic Tower
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Telecopy number: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: G. ▇▇▇▇▇▇ ▇'▇▇▇▇▇▇▇
If to the Management Investors or any of them, to their addresses as
listed in the books of the Company.
All such notices shall be deemed to have been duly given: when
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.
(f) Governing Law. The validity, performance, construction and
-------------
effect of this Agreement shall be governed by and construed in accordance with
the internal law of Delaware, without giving effect to principles of conflicts
of law.
(g) Waiver of Jury Trial. Each of the parties to this
--------------------
Agreement waives, to the fullest extent permitted by law, any right to trial by
jury of any claim, demand, action or cause of action (i) arising under this
Agreement or (ii) in any way connected with or related or incidental to the
dealings of the parties hereto in respect of this Agreement or any of the
transactions related hereto, in each case whether now existing or hereafter
arising, and whether in contract, tort, equity or otherwise. Each of the parties
to this Agreement agrees and consents that any such claim, demand, action or
cause of action shall be decided by court trial without a jury and that the
parties to this Agreement may file an original counterpart of a copy of this
Agreement with any court as written evidence of the consent of the parties
hereto to the waiver of the right to trial by jury.
(h) Headings. The headings in this Agreement are for
--------
convenience of reference only and shall not constitute a part of this Agreement,
nor shall they affect their meaning, construction or effect.
(i) Counterparts. This Agreement may be executed in two or
------------
more counterparts and by the parties hereto in separate counterparts, each of
which when so executed shall
-16-
be deemed to be an original, and all of which taken together shall constitute
one and the same instrument.
(j) Further Assurances. Each party shall cooperate and take
------------------
such action as may be reasonably requested by another party in order to carry
out the provisions and purposes of this Agreement and the transactions
contemplated hereby.
(k) Termination. Unless sooner terminated in accordance with
-----------
its terms, this Agreement shall terminate ten years after the date of this
Agreement and any additional period permitted by law, provided that the
indemnification rights and obligations set forth in Section 5 hereof shall
survive the termination of this Agreement.
(l) Remedies. In the event of a breach or a threatened breach
--------
by any party to this Agreement of its obligations under this Agreement, any
party injured or to be injured by such breach, in addition to being entitled to
exercise all rights granted by law, including recovery of damages, will be
entitled to specific performance of its rights under this Agreement, it being
agreed by the parties that the remedy at law, including monetary damages, for
breach of such provision will be inadequate compensation for any loss and that
any defense in any action for specific performance that a remedy at law would be
adequate is waived.
(m) Party No Longer Owning Registrable Securities. If a party
---------------------------------------------
hereto ceases to own any Registrable Securities, such party will no longer be
deemed to be an Investor for purposes of this Agreement; provided that the
indemnification rights and obligations set forth in Section 5 hereof shall
survive any such cessation of ownership.
(n) Pronouns. Whenever the context may require, any pronouns
--------
used herein shall be deemed also to include the corresponding neuter, masculine
or feminine forms.
(o) No Effect on Employment. Nothing herein contained shall
-----------------------
confer on any Investor the right to remain in the employ of the Company or any
of its subsidiaries or Affiliates.
-17-
IN WITNESS WHEREOF, the parties hereto have executed this
Registration Rights Agreement as of the day and year first above written.
GREAT LAKES DREDGE & DOCK CORPORATION
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
----------------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Sr. Vice President
VECTURA HOLDING COMPANY LLC
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇
----------------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇
Title: Vice President
MANAGEMENT INVESTORS
---------------------------------------------
Name:
Social Security Number:
Residence Address:
Residence Telephone:
Business Address:
Business Telephone:
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