EXHIBIT 99.4
--------------------------------------------------------------------------------
REGISTRATION RIGHTS AGREEMENT
BY AND AMONG
TRICO MARINE SERVICES, INC.
AND
THE HOLDERS NAMED HEREIN
-------------------------------------------
DATED AS OF [ ], 200_
-------------------------------------------
--------------------------------------------------------------------------------
TABLE OF CONTENTS
PAGE
1. Definitions............................................................................................. 1
2. Securities Act Shelf Registration....................................................................... 4
(a) Shelf Registration.............................................................................. 4
(b) Effective Registration Statement................................................................ 5
3. Securities Act Registration on Request.................................................................. 5
(a) Request......................................................................................... 5
(b) Registration of Other Securities................................................................ 7
(c) Registration Statement Form..................................................................... 7
(d) Effective Registration Statement................................................................ 7
(e) Selection of Underwriters....................................................................... 8
(f) Priority in Requested Registration.............................................................. 8
(g) Shelf Registrations............................................................................. 8
4. Piggyback Registration.................................................................................. 8
5. Expenses................................................................................................ 10
6. Registration Procedures................................................................................. 10
7. Underwritten Offerings.................................................................................. 14
(a) Requested Underwritten Offerings................................................................ 14
(b) Piggyback Underwritten Offerings; Priority...................................................... 15
(c) Holders of Registrable Common Stock to be Parties to Underwriting Agreement..................... 15
(d) Holdback Agreements............................................................................. 16
8. Preparation; Confidentiality............................................................................ 17
(a) Preparation..................................................................................... 17
(b) Confidentiality................................................................................. 17
9. Postponements........................................................................................... 17
10. Indemnification......................................................................................... 18
(a) Indemnification by the Company.................................................................. 18
(b) Indemnification by the Offerors and Sellers..................................................... 19
(c) Notices of Losses, etc.......................................................................... 20
(d) Contribution.................................................................................... 20
(e) Other Indemnification........................................................................... 21
(f) Indemnification Payments........................................................................ 21
11. Registration Rights to Others........................................................................... 21
12. Adjustments Affecting Registrable Common Stock.......................................................... 22
13. Rules 144 and 144A; Public Market for Common Stock...................................................... 22
14. Amendments and Waivers.................................................................................. 22
15. Nominees for Beneficial Owners.......................................................................... 23
16. Assignment.............................................................................................. 23
17. Calculation of Percentage or Number of Shares of Registrable Common Stock............................... 23
18. Termination of Registration Rights...................................................................... 23
19. Miscellaneous........................................................................................... 24
(a) Further Assurances.............................................................................. 24
(b) Headings........................................................................................ 24
(c) Conflicting Instructions........................................................................ 23
(d) Remedies........................................................................................ 24
(e) Entire Agreement................................................................................ 24
(f) Notices......................................................................................... 25
(g) Governing Law................................................................................... 25
(h) Severability.................................................................................... 25
(i) Counterparts.................................................................................... 26
ii
REGISTRATION RIGHTS AGREEMENT
REGISTRATION RIGHTS AGREEMENT, dated as of [ ], 200_ (this
"Agreement"), by and among TRICO MARINE SERVICES, INC., a Delaware corporation
(the "Company"), and the Holders (as hereinafter defined) of Registrable Common
Stock (as hereinafter defined) who are signatories to this Agreement.
This Agreement is being entered into in connection with the
acquisition of Common Stock (as hereinafter defined) on or after the Effective
Date (as hereinafter defined) by the Original Holders (as hereinafter defined)
pursuant to the Plan (as hereinafter defined). Upon the issuance of the Common
Stock, each Original Holder will own the number of shares of Common Stock
specified with respect to such Original Holder on the signature pages hereto.
In consideration of the premises and the mutual agreements set forth
herein, the parties hereto hereby agree as follows:
1. Definitions. Unless otherwise defined herein, capitalized terms used
herein and in the recitals above shall have the following meanings:
"10% Holder" means, as of any date of determination, any Holder that
owns 10% or more of the Common Stock then outstanding.
"Affiliate" of a Person means any Person that directly, or
indirectly through one or more intermediaries, controls, or is controlled by, or
is under common control with, such other Person. For purposes of this
definition, "control" means the ability of one Person to direct the management
and policies of another Person.
"Agreement" has the meaning set forth in the preamble.
"Business Day" means any day except a Saturday, Sunday or other day
on which commercial banks in New York City or Houston, Texas are authorized or
required by law to be closed.
"Commission" means the U.S. Securities and Exchange Commission.
"Company" has the meaning provided in the preamble.
"Common Stock" means the shares of common stock, $.01 par value per
share, of the Company, as adjusted to reflect any merger, consolidation,
recapitalization, reclassification, split-up, stock dividend, rights offering or
reverse stock split made, declared or effected with respect to the Common Stock.
"Company Indemnitee" has the meaning set forth in Section 10(a).
"Confidential Material" means any and all non-public information,
whether provided orally or in writing, concerning or relating to the Company
(whether prepared by the Company, its Representatives or otherwise) that (a) (i)
in the case of non-public information provided in writing is marked as being
confidential or (ii) in the case of non-public information provided
orally is identified by the Company at the time of disclosure as being
confidential and (b) is furnished to a Holder of Registrable Common Stock or its
Representative by or on behalf of the Company pursuant to Section 8(a).
"Confidential Material" shall not include information that: (a) is or becomes
available to the public generally, other than as a result of disclosure by the
relevant Holder or a Representative of such Holder in breach of the terms of
this Agreement, or (b) becomes available to the relevant Holder or a
Representative of such Holder from a source other than the Company, provided
that, the Holder reasonably believes that such source is not bound by a
confidentiality agreement with or does not have a contractual, legal or
fiduciary obligation of confidentiality to the Company with respect to such
information.
"Effective Date" means the effective date of the Plan pursuant to
the terms thereof.
"Exchange Act" means the Securities Exchange Act of 1934, as
amended, or any successor statute, and the rules and regulations thereunder.
"Expenses" means all expenses incident to the Company's performance
of or compliance with its obligations under this Agreement, including, without
limitation, all registration, filing, listing, stock exchange and NASD fees
(including, without limitation, all fees and expenses of any "qualified
independent underwriter" required by the rules of the NASD), all fees and
expenses of complying with state securities or blue sky laws (including the
reasonable fees, disbursements and other charges of counsel for the underwriters
in connection with blue sky filings), all word processing, duplicating and
printing expenses, messenger, telephone and delivery expenses, all rating agency
fees, the fees, disbursements and other charges of counsel for the Company and
of its independent registered public accountants, including the expenses
incurred in connection with any special audits or comfort letters required by or
incident to such performance and compliance, the fees and expenses incurred in
connection with the listing of the securities to be registered on each
securities exchange or national market system on which similar securities issued
by the Company are then listed, any reasonable out-of-pocket fees and
disbursements of underwriters customarily paid by issuers or sellers of
securities, the reasonable fees, disbursements and other charges of one law firm
(per registration statement prepared) to the Selling Holders pursuant to a
registration under Section 2(a) or Section 3(a) (selected by the Selling Holders
holding a majority of the shares of Registrable Common Stock covered by such
registration), the fees and expenses of any special experts retained by the
Company in connection with such registration, and the fees and expenses of other
Persons retained by the Company, but excluding underwriting discounts and
commissions and applicable transfer taxes, if any, which discounts, commissions
and transfer taxes shall be borne by the Selling Holders in all cases; provided
that, if the Company shall, in accordance with Section 4 or Section 9, not
register any securities with respect to which it had given written notice of its
intention to register to the Holders, notwithstanding anything to the contrary
in the foregoing, all reasonable out-of-pocket expenses incurred by Holders in
connection with such registration (other than the reasonable fees, disbursements
and other charges of counsel other than the one firm of counsel referred to
above) shall be deemed to be Expenses; and provided further that, in any case
where Expenses are not to be borne by the Company, such Expenses shall not
include salaries of Company personnel or general overhead expenses of the
Company, auditing fees, premiums or other expenses relating to liability
insurance required by underwriters or other expenses for the preparation of
financial
2
statements or other data normally prepared by the Company in the ordinary course
of its business or which the Company would have incurred in any event.
"Holder" means, as of any date of determination, (a) any Original
Holder who owns at least 1% of the Common Stock on the date of determination, or
(b) any Person who (i) acquired at least 1% of the Common Stock then outstanding
from an Original Holder, (ii) after giving effect to such acquisition owns at
least 10% of the Common Stock then outstanding and (iii) has agreed in writing
to be bound by the terms of this Agreement in accordance with Section 16.
"Holder Indemnitee" has the meaning set forth in Section 10(b).
"Initial Shelf" has the meaning set forth in Section 3(a).
"Initiating Holder" means at the time of any Initiating Request a
10% Holder.
"Initiating Holder Group" means two or more Holders that
collectively own 10% or more of the Common Stock outstanding at the time of
delivery of an Initiating Request.
"Initiating Request" has the meaning set forth in Section 3(a).
"Loss" and "Losses" have the meanings set forth in Section 10(a).
"Material Adverse Change" means (a) any general suspension of
trading in securities on any national securities exchange or in the
over-the-counter market in the United States of America; (b) a declaration of a
banking moratorium or any suspension of payments in respect of banks in the
United States of America; (c) any other limitation (whether or not voluntary)
imposed by any governmental authority of the United States of America that
materially affects the extension of credit by U.S. banks or other financial
institutions; (d) any material adverse change in the business, assets, condition
(financial or otherwise) or prospects of the Company and its subsidiaries taken
as a whole; or (e) a 10% or more decline in the Dow ▇▇▇▇▇ Industrial Average,
the Standard and Poor's Index of 500 Industrial Companies or the NASDAQ
Composite Index, in each case from the date of an Initiating Request.
"NASD" means the National Association of Securities Dealers, Inc.
"Non-withdrawing Holders" has the meaning set forth in Section
3(a)(ii)(C).
"Offering Documents" has the meaning set forth in Section 10(a).
"Original Holder" means each Person that pursuant to the Plan
acquires at least 1% of the shares of Common Stock that are issued and
outstanding as of the Effective Date.
"Person" means any individual, corporation, partnership, firm, joint
venture, association, company, trust, unincorporated organization, governmental
or regulatory body or subdivision thereof or other entity.
"Piggyback Registration" has the meaning set forth in Section 4.
3
"Piggyback Requesting Holder" has the meaning set forth in Section
4.
"Plan" means the Prepackaged Joint Plan of Reorganization under
Chapter 11 of the United States Bankruptcy Code for the Company and certain of
its domestic subsidiaries, as the same may be amended, modified or supplemented
from time to time in accordance with the terms thereof.
"Public Offering" means a public offering of Common Stock pursuant
to an effective registration statement under the Securities Act.
"Registrable Common Stock" means any of the Common Stock owned by
the Holders from time to time, provided, however, that a share of Common Stock
will cease to be a share of Registrable Common Stock if (a) a registration
statement covering such Registrable Common Stock has been declared effective by
the Commission and such share of Registrable Common Stock has been sold or
disposed of pursuant to such effective registration statement, or (b) such share
of Registrable Common Stock has been sold or disposed of pursuant to Rule 144
(or any successor rule) under the Securities Act; (c) such share of Registrable
Common Stock has been Transferred to a Person who is not (and does not become as
a result of such Transfer) a Holder; or (d) such share of Registrable Common
Stock is held by the Company or any of its subsidiaries.
"Representative" has the meaning set forth in Section 8(b).
"Securities Act" means the Securities Act of 1933, as amended, or
any successor statute, and the rules and regulations thereunder.
"Selling Holder" means a Holder who is selling Registrable Common
Stock requested to be registered pursuant to this Agreement
"Shelf Registration" has the meaning set forth in Section 2(a).
"Shelf Registration Statement" has the meaning set forth in Section
2(a).
"Subsequent Defect" has the meaning set forth in Section 2(b).
"Transfer" means any transfer, sale, assignment, pledge,
hypothecation or other disposition of any interest. "Transferor" and
"Transferee" have correlative meanings.
"Withdrawal Notice" has the meaning set forth in Section 18.
In this Agreement, all references to "ownership" of Common Stock or
Registrable Common Stock shall be deemed to mean the beneficial ownership of
Common Stock or Registrable Common Stock, unless otherwise specified.
2. Securities Act Shelf Registration.
(a) Shelf Registration. On or before the later of (i) the date that
is 30 days after the Effective Date or (ii) April 30, 2004, the Company shall
prepare and file a shelf registration
4
statement (a "Shelf Registration Statement") for registration pursuant to Rule
415 promulgated under the Securities Act (a "Shelf Registration") of the sale
from time to time by the Holders of any or all shares of the Registrable Common
Stock. The Company shall use commercially reasonable efforts to have such Shelf
Registration Statement thereafter declared effective by the Commission within 15
days after the Company receives an initial comment letter from the staff of the
Commission relating to such Shelf Registration Statement. Subject to Section
9(b), the Company agrees to use commercially reasonable efforts to keep the
Shelf Registration Statement continuously effective until the earlier to occur
of (i) the second anniversary of the date such Shelf Registration Statement
initially is declared effective by the Commission (plus a number of Business
Days equal to the number of days, if any, that the Shelf Registration Statement
is not kept effective after the initial date of its effectiveness and prior to
the second anniversary thereof), (ii) the day after the date on which all of the
Registrable Common Stock covered by the Shelf Registration Statement has been
sold pursuant to the Shelf Registration Statement or (iii) the first date on
which there shall cease to be any Registrable Common Stock. The Company further
agrees, if necessary, to supplement or amend the Shelf Registration Statement,
if required by the rules, regulations or instructions applicable to the
registration form used by the Company for such Shelf Registration or by the
Securities Act for shelf registration, and the Company agrees to furnish to the
Holders whose Registrable Common Stock is included in such Shelf Registration
Statement copies of any such supplement or amendment promptly after its being
issued or filed with the Commission.
(b) Effective Registration Statement(i). A Shelf Registration
pursuant to Section 2(a) shall not be deemed to have been effected if (i) the
Shelf Registration Statement with respect thereto has not been declared
effective by the Commission, or (ii) after such Shelf Registration Statement has
become effective, any stop order, injunction or other order or requirement of
the Commission or other governmental or regulatory agency or court prohibits the
use of such Registration Statement for any reason other than a violation of
applicable law solely by any Holder (a "Subsequent Defect") and the Company
fails to remove such Subsequent Defect within 90 days after the imposition of
such Subsequent Defect.
3. Securities Act Registration on Request.
(a) Request. At any time and from time to time after the expiration
(in accordance with Section 2(a)) or cessation for a period of 90 days of the
effectiveness of the Shelf Registration Statement filed by the Company pursuant
to Section 2(a) (the "Initial Shelf") and until the Company's obligations
hereunder with respect to the registration of Registrable Common Stock have
terminated pursuant to Section 18, any Initiating Holder or Initiating Holder
Group may make a written request (an "Initiating Request") to the Company for
the registration with the Commission under the Securities Act of all or part of
the Registrable Common Stock owned by such Initiating Holder or Initiating
Holder Group, which request shall specify the number of shares of Registrable
Common Stock to be disposed of by such Initiating Holder or Initiating Holder
Group and the proposed plan of distribution of such shares. Upon the receipt of
any Initiating Request for registration pursuant to this Section 3(a), the
Company will promptly (and in any event within 10 Business Days after receipt of
such Initiating Request) notify in writing all other Holders of the receipt of
such request and, subject to Section 9(b), will use commercially
5
reasonable efforts to effect, at the earliest practicable date, such
registration under the Securities Act, of
(i) the Registrable Common Stock that the Company has been so
requested to register by such Initiating Holder or Initiating Holder
Group; and
(ii) all other Registrable Common Stock that the Company has
been requested to register by any other Holders by written request given
to the Company within 30 days after the giving of written notice by the
Company to such other Holders of the Initiating Request,
all to the extent necessary to permit the proposed method of disposition of the
Registrable Common Stock so to be registered; provided, that,
(A) the Company shall not be required to effect more
than a total of three registrations pursuant to this Section 3(a)
for all Holders of Registrable Common Stock;
(B) if the Company shall have previously effected a
registration pursuant to Section 2 or this Section 3(a), or shall
have previously effected a registration of a Public Offering of
which notice has been given to the Holders pursuant to Section 4,
the Company shall not be required to effect any registration
pursuant to this Section 3(a) until a period of 180 days shall have
elapsed from the date on which such previous registration ceased to
be effective;
(C) any Initiating Holder or Initiating Holder Group (at
the request of those members of such Initiating Holder Group owning
a majority of the shares of Registrable Common Stock owned by all
members of such Initiating Holder Group) whose Registrable Common
Stock was to be included in any such registration pursuant to this
Section 3(a), may, by written notice received by the Company before
the filing of a registration statement pursuant to this Section
3(a), withdraw its Initiating Request. Upon receipt of such
withdrawal notice, the Company shall not effect such registration;
provided that, (i) if the members of an Initiating Holder Group that
have not requested withdrawal of an Initiating Request collectively
own and wish the Company to register the offering of 10% or more of
the shares of Registrable Common Stock outstanding at the time of
delivery of the Initiating Request (the "Non-withdrawing Holders"),
the Company shall effect a registration that includes only such
shares of Registrable Common Stock owned by the Non-withdrawing
Holders and such registration shall count as one of the permitted
registrations pursuant to paragraph (A) above; and (ii) a requested
registration that is not effected as a result of the withdrawal of
an Initiating Request by the Initiating Holder or Initiating Holder
Group, as the case may be, pursuant to this paragraph (C) will count
as one of the permitted registrations pursuant to paragraph (A)
above unless (x) the Initiating Holder or Initiating Holder Group
elects to pay or reimburse the Company for all Expenses incurred in
connection with such requested registration or (y) such Initiating
Request is withdrawn (1) at the request of the Company, (2) because
of a breach by the
6
Company of any of its obligations under this Agreement, or (3)
within 10 Business Days after the occurrence of a Material Adverse
Change; and
(D) the Company is not required to effect any
registration pursuant to this Section 3(a) unless at least 10% of
the shares of Registrable Common Stock outstanding at the time of
such Initiating Request is to be included in such registration.
Subject to Section 9(b), the Company agrees to use commercially reasonable
efforts to keep each registration statement effected pursuant to this Section
3(a) continuously effective in compliance with the provisions of the Securities
Act and the laws of any state or other jurisdiction applicable to the
disposition of Registrable Common Stock covered by such registration statement
until the earliest of (i) such time as all of such Registrable Common Stock has
been disposed of in accordance with such registration statement, (ii) there
shall cease to be any Registrable Common Stock, or (iii) 120 days after such
registration statement has been declared effective (plus a number of Business
Days equal to the number of days, if any, that such registration statement is
not kept effective after the initial date of its effectiveness and prior to 120
days thereafter), provided that, with respect to any Shelf Registration such
period shall extend for the period provided for in Section 3(g).
(b) Registration of Other Securities. Whenever the Company shall
effect a registration pursuant to Section 3(a), no securities other than (i)
Registrable Common Stock and (ii) subject to Section 3(f), Common Stock to be
sold by the Company for its own account shall be included among the securities
covered by such registration unless (A) the Selling Holders holding not less
than a majority of the shares of Registrable Common Stock to be covered by such
registration shall have consented in writing to the inclusion of such other
securities and (B) the Company consents to the inclusion of such other
securities.
(c) Registration Statement Form. Registrations under Section 3(a)
shall be on such appropriate registration form prescribed by the Commission
under the Securities Act as shall be selected by the Company and which form
shall be available for the sale of the Registrable Common Stock to be registered
thereunder in accordance with the method of distribution thereof proposed by the
Initiating Holder or Initiating Holder Group. The Company agrees to include in
any such registration statement filed pursuant to Section 3(a) all information
relating to the Selling Holders and the proposed method of distribution of the
Registrable Common Stock to be registered thereunder that counsel for the
Selling Holders holding a majority of the shares of Registrable Common Stock
covered by such registration shall advise is legally required to be included.
The Company may, if permitted by law, effect any registration requested under
this Section 3 by the filing of a registration statement on Form S-3 (or any
successor or similar short form registration statement that the Commission may
adopt).
(d) Effective Registration Statement. A registration requested
pursuant to Section 3(a) shall not be deemed to have been effected if:
(i) a registration statement with respect thereto has not been
declared effective by the Commission;
7
(ii) if, after such registration statement has become
effective, a Subsequent Defect prevents the use of such registration
statement for the offer and sale of Registrable Common Stock and the
Company fails to remove such Subsequent Defect within 90 days after the
imposition of such Subsequent Defect; or
(iii) if, in the case of an underwritten offering, the
conditions to closing specified in an underwriting agreement to which the
Company is a party are not satisfied (other than solely by reason of any
breach or failure by any Selling Holder) or waived.
(e) Selection of Underwriters. The underwriter or underwriters of
each underwritten Public Offering, if any, of the Registrable Common Stock to be
registered pursuant to Section 2(a) or Section 3(a) shall be selected by the
Selling Holders owning at least a majority of the shares of Registrable Common
Stock to be registered, subject to approval by the Company, which approval shall
not be unreasonably withheld, delayed or conditioned.
(f) Priority in Requested Registration. If a registration under
Section 3(a) involves an underwritten Public Offering, and the managing
underwriter of such underwritten Public Offering shall advise the Company in
writing (with a copy to each Selling Holder requesting that Registrable Common
Stock be included in such registration statement) that, in its opinion, the
number of shares of Registrable Common Stock requested to be included in such
registration exceeds the number of shares of Registrable Common Stock that can
be sold in such Public Offering within a price range stated to such managing
underwriter by Selling Holders owning at least a majority of the shares of
Registrable Common Stock requested to be included in such registration to be
acceptable to such Selling Holders, the Company shall include in such
registration, to the extent of the number of shares of Registrable Common Stock
that the Company is advised can be sold in such Public Offering, all Registrable
Common Stock requested to be registered pursuant to Section 3(a), pro rata among
the Selling Holders on the basis of the number of shares of Registrable Common
Stock requested to be registered by all such Selling Holders, and no other
securities, whether to be sold by the Company or any other Person.
(g) Shelf Registrations. If a demand made pursuant to Section 3(a)
is for a Shelf Registration, the period for which such Shelf Registration
Statement must remain effective shall be the period of time specified in the
Initiating Request, but in any event not more than one year from the date on
which such Shelf Registration Statement initially is declared effective by the
Commission (plus a number of Business Days equal to the number of days, if any,
that the Shelf Registration Statement is not kept effective after the initial
date of its effectiveness and prior to such first year anniversary thereof).
4. Piggyback Registration. If the Company, at any time when a Shelf
Registration Statement covering all outstanding shares of Registrable Common
Stock is not effective, proposes to register any of its securities under the
Securities Act by registration on any form (other than a registration statement
(i) on Form ▇-▇, ▇▇▇▇ ▇-▇ or any successor forms or (ii) filed solely in
connection with an exchange offer or any employee benefit or dividend
reinvestment plan), whether for its own account, for the account of any of its
securityholders or otherwise, the Company shall give written notice to all of
the Holders as soon as reasonably practicable (and in any event at least 30 days
prior to such proposed registration) of such proposed registration, and such
notice shall offer the Holders the opportunity to register such number of shares
of Registrable
8
Common Stock as each such Holder may request in accordance with the provisions
of this Section 4 (a "Piggyback Registration"). Such notice shall include a
range of expected public offering prices of the Common Stock included in such
proposed registration; provided, however, that if the managing underwriter has
not then advised the Company of such a range, then the Company shall notify the
Holders in writing as promptly as practicable after the Company receives such
advice from the managing underwriter; and provided, further, that, if prior to
the date on which the securities to be offered are priced, the managing
underwriter notifies the Company of a change in the price range within which the
managing underwriter believes the Common Stock will be sold, the Company shall
so notify the Holders in writing. Upon the written request of any Holder
receiving notice of such proposed registration (a "Piggyback Requesting Holder")
made within 15 days after the receipt of any such notice (10 days if the Company
states in such written notice or gives telephonic notice to the relevant Holder,
with written confirmation to follow promptly thereafter, stating that (a) such
registration will be on Form S-3 (or any successor or similar short form
registration statement that the Commission may adopt) and (b) such shorter
period of time is required because of a planned filing date), which request
shall specify the Registrable Common Stock intended to be disposed of by such
Piggyback Requesting Holder, the Company shall, subject to Section 7(b), be
required to permit the Registrable Common Stock requested to be included in a
Piggyback Registration to be included on the same terms and conditions as any
other securities included therein; provided, that,
(i) any Piggyback Requesting Holder shall have the right to
withdraw its request to have its Registrable Common Stock included in such
registration statement, by delivery of written notice of such withdrawal
to the Company prior to the effective date of such registration statement,
without prejudice to the rights of any Holder to include Registrable
Common Stock in any future registration (or registrations) pursuant to
this Section 4 or to cause such registration to be effected as a
registration under Section 3(a), as the case may be; and
(ii) if at any time after giving written notice of its
intention to register any securities 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 or to delay
registration of such securities, the Company may, at its election, give
written notice of such determination to each Piggyback Requesting Holder
and (A) in the case of a determination not to register, shall be relieved
of its obligation to register any Registrable Common Stock in connection
with such registration (but not from any obligation of the Company to pay
the Expenses in connection therewith), without prejudice, however, to the
rights of any Holder to include Registrable Common Stock in any future
registration (or registrations) pursuant to this Section 4 or to cause
such registration to be effected as a registration under Section 3(a), as
the case may be, and (B) in the case of a determination to delay
registering, shall be permitted to delay registering any Registrable
Common Stock, for the same period as the delay in registering such other
securities.
No registration effected under this Section 4 shall relieve the
Company of its obligation to effect any registration upon request under Section
3(a) and no registration effected pursuant to this Section 4 shall be deemed to
have been effected pursuant to Section 3(a).
9
5. Expenses. Except as otherwise provided in Section 3(a)(ii)(C), the
Company shall pay all Expenses in connection with any registration initiated
pursuant to Sections 2(a), 3(a) or 4, whether or not such registration shall
become effective and whether or not all or any portion of the shares of
Registrable Common Stock originally requested to be included in such
registration are ultimately included in such registration.
6. Registration Procedures. If and whenever the Company is required or
elects to effect any registration under the Securities Act as provided in
Sections 2(a), 3(a) and 4 hereof, the Company shall, as expeditiously as
possible:
(a) subject to Section 3(a)(ii)(B), prepare and file with the
Commission (promptly and, in the case of any registration pursuant to
Section 3(a), in any event on or before the date that is (i) 90 days after
the end of the period within which requests for registration may be given
to the Company pursuant to Section 3(a)(ii), or (ii) if, as of such 90th
day, the Company does not have the audited financial statements required
to be included in the registration statement, 30 days after the receipt by
the Company from its independent registered public accountants of such
accountants' signed report on such audited financial statements, which the
Company shall use commercially reasonable efforts to obtain as promptly as
practicable) the requisite registration statement to effect such
registration and thereafter use commercially reasonable efforts to cause
such registration statement to become and remain effective for (x) the
period specified Section 2(a) in the case of the Initial Shelf, (ii) 120
days in the case of a registration pursuant to Section 3(a) other than a
Shelf Registration or a registration pursuant to Section 4 or (iii) the
period specified in Section 3(g) in the case of a Shelf Registration other
than the Initial Shelf; provided, however, that the Company may
discontinue any registration of its securities that are not shares of
Registrable Common Stock (and, under the circumstances specified in
Sections 4 and 9(b), its securities that are shares of Registrable Common
Stock) at any time prior to the effective date of the registration
statement relating thereto;
(b) 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 and to comply with the provisions of the Securities
Act and the Exchange Act with respect to the disposition of all
Registrable Common Stock covered by such registration statement until such
time as (i) all of such Registrable Common Stock has been disposed of in
accordance with the method of disposition set forth in such registration
statement or (ii) such Registrable Common Stock ceases to be Registrable
Common Stock; provided, that, except with respect to any Shelf
Registration, such period need not extend beyond 120 days after the
effective date of the registration statement; and provided, further, that
with respect to the Initial Shelf, such period need not extend beyond the
applicable period provided for in Section 2(a) and, with respect to any
Shelf Registration other than the Initial Shelf, such period need not
exceed the applicable period provided for in Section 3(g);
(c) furnish to each Selling Holder and each underwriter, if any,
such number of copies of such drafts and final conformed versions of such
registration statement and of each such amendment and supplement thereto
(in each case including all exhibits and any documents incorporated by
reference), such number of copies of such drafts and final
10
versions of the prospectus contained in such registration statement
(including each preliminary prospectus and any summary prospectus) and any
other prospectus filed pursuant to Rule 424 under the Securities Act, in
conformity with the requirements of the Securities Act, and such other
documents, as the Selling Holders or any underwriter may reasonably
request in writing;
(d) use commercially reasonable efforts (i) to register or qualify
all Registrable Common Stock and other securities, if any, covered by such
registration statement under such other securities or blue sky laws of
such states or other jurisdictions of the United States of America as the
Selling Holders shall reasonably request in writing, (ii) to keep such
registrations or qualifications in effect for so long as such registration
statement remains in effect and (iii) to take any other action that may be
necessary or reasonably advisable to enable such Selling Holders to
consummate the disposition in such jurisdictions of the securities to be
sold by such Selling Holders, except that the Company shall not for any
such purpose be required to qualify generally to do business as a foreign
corporation in any jurisdiction wherein it would not but for the
requirements of this Section 6(d) be obligated to be so qualified, to
subject itself to taxation in such jurisdiction or to consent to general
service of process in any such jurisdiction;
(e) use commercially reasonable efforts to cause all shares of
Registrable Common Stock and other securities, if any, covered by such
registration statement to be registered with or approved by such other
federal or state governmental agencies or authorities as may be necessary
in the opinion of counsel to the Company and counsel to the Selling Holder
or Selling Holders to enable the Selling Holder or Selling Holders to
consummate the disposition of such Registrable Common Stock;
(f) use commercially reasonable efforts to obtain and, if obtained,
furnish to each Selling Holder, and each underwriter, if any, a signed
copy, addressed to each such Selling Holder and each underwriter, of:
(i) an opinion or opinions of counsel for the Company, dated
the effective date of such registration statement (and, if such
registration involves an underwritten offering, dated the date of the
closing under the underwriting agreement), reasonably satisfactory (based
on the form and substance of opinions of issuers' counsel customarily
given in such an offering) in form and substance to such Selling Holder
and underwriter, and
(ii) a comfort letter or comfort letters, dated the effective
date of such registration statement (and, if such registration involves an
underwritten offering, dated the date of the closing under the
underwriting agreement) and signed by the independent registered public
accountants who have certified the Company's financial statements included
or incorporated by reference in such registration statement, reasonably
satisfactory (based on the form and substance of comfort letters of
issuers' independent registered public accountants customarily given in
such an offering) in form and substance to such Selling Holder and
underwriter,
11
in each case, covering such matters as are customarily covered in opinions
of issuers' counsel and in accountants' comfort letters delivered to
underwriters in underwritten public offerings of securities;
(g) notify each Selling Holder and the managing underwriter or
underwriters, if any, promptly, and confirm such advice promptly in
writing thereafter (i) when the registration statement, the prospectus or
any prospectus supplement related thereto or post-effective amendment to
the registration statement has been filed and, with respect to the
registration statement and any post-effective amendment, when the same has
become effective; (ii) of any request by the Commission for amendments or
supplements to the registration statement or prospectus or for additional
information; (iii) of the issuance by the Commission of any stop order
suspending the effectiveness of the registration statement or the
initiation of any proceedings by any Person for that purpose; (iv) if at
any time any of the representations and warranties of the Company made as
contemplated by Section 7(a) ceases to be true and correct; and (v) of the
receipt by the Company of any notification with respect to the suspension
of the registration or qualification of any Registrable Common Stock for
sale under the securities or blue sky laws of any jurisdiction or the
initiation or threat of any proceeding for such purpose;
(h) notify each Selling Holder and the managing underwriter or
underwriters, if any, at any time when a prospectus relating thereto is
required to be delivered under the Securities Act, upon discovery that, or
upon the happening of any event as a result of which, the prospectus
included in such registration statement, as then in effect, includes an
untrue statement of a material fact or omits to state any 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, and, at the written request of any such Selling Holder or
underwriter, promptly prepare and furnish to it a reasonable number of
copies of a supplement to or an amendment of such prospectus as may be
necessary so that, as thereafter delivered to the purchasers of the
securities covered by such registration statement, such prospectus, as
supplemented or amended, 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, in the light of the
circumstances under which they were made, not misleading; provided that,
if the Company shall give such notice, the Company shall extend the period
for which such registration shall remain effective by the number of days
during the period from and including the date of the giving of such notice
to the date when the Company shall make available to the Selling Holders
and underwriters such supplemented or amended prospectus;
(i) use commercially reasonable efforts to obtain the withdrawal of
any order suspending the effectiveness of a registration statement
relating to the Registrable Common Stock at the earliest possible moment;
(j) otherwise comply with all applicable rules and regulations of
the Commission and any other governmental agency or authority having
jurisdiction over the offering; make available to its security holders, as
soon as reasonably practicable, an earnings statement covering the period
of at least twelve months, but not more than eighteen months, beginning
with the first full calendar month after the effective date of such
registration
12
statement, which earnings statement shall satisfy the provisions of
Section 11(a) of the Securities Act and Rule 158 promulgated thereunder;
and furnish to counsel for the Selling Holders and to the managing
underwriter or managing underwriters, if any, promptly after the filing
thereof with the Commission a copy of any amendment or supplement to such
registration statement or prospectus;;
(k) use commercially reasonable efforts to cause all shares of
Registrable Common Stock covered by a registration statement to be listed
or quoted on each securities exchange or inter-dealer automated quotation
system on which similar securities issued by the Company are then listed
or quoted;
(l) provide and maintain a transfer agent and registrar for the
shares of Registrable Common Stock covered by a registration statement
from and after a date no later than the effective date thereof;
(m) enter into such customary agreements (including, in the case of
an underwritten offering, an underwriting agreement in customary form) and
take such other actions as the Selling Holders holding a majority of the
shares of Registrable Common Stock covered by such registration statement
shall reasonably request in order to expedite or facilitate the
disposition of such Registrable Common Stock;
(n) if requested by the managing underwriter or the Selling Holders
holding a majority of the shares of Registrable Common Stock being sold in
connection with an underwritten Public Offering, promptly incorporate in a
prospectus supplement or post-effective amendment such information as the
managing underwriter or the Selling Holders holding a majority of the
Registrable Common Stock being sold agree should be included therein
relating to the plan of distribution with respect to such Registrable
Common Stock (which information such Selling Holders furnish in writing to
the Company specifically stating that it is for use in such prospectus
supplement or post-effective amendment), including without limitation,
information with respect to the number of shares of Registrable Common
Stock being sold to such underwriters, the purchase price being paid
therefore by such underwriters and with respect to any other terms of the
underwritten offering of the Registrable Common Stock to be sold in such
offering, and make all required filings of such prospectus supplement or
post-effective amendment promptly after being notified of the matters to
be incorporated in such prospectus supplement or post-effective amendment;
(o) if requested by the Selling Holders holding a majority of the
shares of Registrable Common Stock being sold, cooperate with the Selling
Holders and the managing underwriter, if any, to facilitate the timely
preparation and delivery of certificates representing the shares of
Registrable Common Stock to be sold and not bearing any restrictive
legends, and enable such Registrable Common Stock to be in such share
amounts and registered in such names as the managing underwriter or, if
none, the Selling Holders holding a majority of the shares of Registrable
Common Stock being sold, may request at least three Business Days prior to
any sale of Registrable Common Stock to the underwriters; and
13
(p) cause representatives of the Company to participate in any "road
show" or "road shows" reasonably requested by any managing underwriter of
an underwritten Public Offering of Registrable Common Stock.
As a condition to the obligations of the Company to effect any
registration pursuant to this Agreement with respect to the Registrable Common
Stock of a Selling Holder, such Selling Holder must furnish to the Company in
writing such information regarding itself, the Registrable Common Stock held by
it and the intended methods of disposition of the Registrable Common Stock held
by it as is necessary to effect the registration of such Selling Holder's
Registrable Common Stock and is requested in writing by the Company. At least 30
days prior to the first anticipated filing date of a registration statement for
any registration under this Agreement, the Company will notify in writing each
Holder of the information referred to in the preceding sentence that the Company
is requesting from that Holder whether or not such Holder has elected to have
any of its Registrable Common Stock included in the registration statement. If,
within 10 days prior to the anticipated filing date, the Company has not
received the requested information from a Holder, then the Company may file the
Registration Statement without including the shares of Registrable Common Stock
of that Holder.
Each Holder agrees that as of the date that a final prospectus is
made available to it for distribution to prospective purchasers of Registrable
Common Stock it shall cease to distribute copies of any preliminary prospectus
prepared in connection with the offer and sale of such Registrable Common Stock.
Each Holder further agrees that, upon receipt of any notice from the Company of
the happening of any event of the kind described in Section 6(h), such Holder
shall immediately discontinue such Holder's disposition of Registrable Common
Stock pursuant to the registration statement relating to such Registrable Common
Stock until such Holder's receipt of the copies of the supplemented or amended
prospectus contemplated by Section 6(h) and, if so directed by the Company,
shall 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
relating to such Registrable Common Stock current at the time of receipt of such
notice. If any event of the kind described in Section 6(h) occurs and such event
is the fault solely of a Selling Holder (or Selling Holders), such Selling
Holder (or Selling Holders) shall pay all Expenses attributable to the
preparation, filing and delivery of any supplemented or amended prospectus
contemplated by Section 6(h).
7. Underwritten Offerings.
(a) Requested Underwritten Offerings. If requested by the
underwriters in connection with a registration of an underwritten Public
Offering under Section 2(a) or a request for a registration under Section 3(a),
the Company shall enter into a firm commitment underwriting agreement with such
underwriters for such Public Offering, such agreement to be reasonably
satisfactory in substance and form to the Company, the Selling Holders holding a
majority of the shares of Registrable Common Stock included in such registration
and the underwriters and to contain such representations and warranties by the
Company and the Selling Holders and such other terms as are customary in
agreements of that type, including, without limitation, indemnification and
contribution to the effect and to the extent provided in Section 10.
14
(b) Piggyback Underwritten Offerings; Priority.
(i) If the Company proposes to register any of its securities
under the Securities Act for its own account as contemplated by Section 4
and such securities are to be distributed by or through one or more
underwriters, and if the managing underwriter of such underwritten
offering shall advise the Company in writing (with a copy to the Piggyback
Requesting Holders) that if all the Registrable Common Stock requested to
be included in such registration were so included, then, in its opinion,
the number and type of securities proposed to be included in such
registration would exceed the number and type of securities that could be
sold in such offering within a price range acceptable to the Company, then
the Company shall include in such registration pursuant to Section 4, to
the extent of the number and type of securities that the Company is so
advised can be sold in such offering, (A) first, securities that the
Company proposes to issue and sell for its own account, (B) second,
Registrable Common Stock requested to be registered by Piggyback
Requesting Holders pursuant to Section 4, pro rata among the Piggyback
Requesting Holders on the basis of the number of shares of Registrable
Common Stock requested to be registered by all such Piggyback Requesting
Holders and (C) third, other securities, if any.
(ii) In the case of any other registration contemplated by
Section 4 involving an underwritten offering, if the managing underwriter
of such underwritten offering shall advise the Company in writing (with a
copy to the Piggyback Requesting Holders) that if all Registrable Common
Stock requested to be included in such registration were so included,
then, in its opinion, the number and type of securities proposed to be
included in such registration would exceed the number and type of
securities that could be sold in such offering within a price range stated
to such managing underwriter by Selling Holders owning at least a majority
of the shares of Registrable Common Stock requested to be included in such
registration to be acceptable to such Selling Holders, then the Company
shall include in such registration pursuant to Section 4, to the extent of
the number and type of securities that the Company is so advised can be
sold in such offering, (i) first, Registrable Common Stock requested to be
registered by Piggyback Requesting Holders pursuant to Section 4, pro rata
among the Piggyback Requesting Holders on the basis of the number of
shares of Registrable Common Stock requested to be registered by all such
Piggyback Requesting Holders, (ii) securities that the Company proposed to
issue and sell for its own account and (iii) third, other securities.
Any Holder may withdraw its request to have all or any portion of
its Registrable Common Stock included in any such offering by notice to the
Company at any time after receipt of a copy of a notice from the managing
underwriter pursuant to this Section 7(b) and prior to the effective date of
such registration statement.
(c) Holders of Registrable Common Stock to be Parties to
Underwriting Agreement. The Holders of Registrable Common Stock to be
distributed by underwriters in an underwritten offering contemplated by Section
2(a), 3 or 4 shall be parties to the underwriting agreement between the Company
and such underwriters and any such Holder, at its option, may reasonably require
that any or all of the representations and warranties by, and the other
agreements on the part of, the Company to and for the benefit of such
underwriters shall also be made
15
to and for the benefit of such Holders and that any or all of the conditions
precedent to the obligations of such underwriters under such underwriting
agreement be conditions precedent to the obligations of such Holders. No such
Holder shall be required to make any representations or warranties to or
agreements with the Company or the underwriters other than representations,
warranties or agreements regarding such Holder, such Holder's Registrable Common
Stock and such Holder's intended method of distribution.
(d) Holdback Agreements. Each Holder agrees, unless otherwise agreed
to by the managing underwriter for any underwritten offering pursuant to this
Agreement, not to effect any sale or distribution of any equity securities of
the Company or securities convertible into or exchangeable or exercisable for
equity securities of the Company, including any sale under Rule 144 under the
Securities Act, during the period commencing 10 days prior to the date on which
an underwritten offering of Common Stock pursuant to Section 2(a), 3 or 4
(whether or not, in the case of an underwritten offering pursuant to Section 4,
such offering includes Registrable Common Stock held by Piggyback Requesting
Holders) commences and until 90 days after the date on which a prospectus is
filed with the Commission with respect to the pricing of such underwritten
offering (or such shorter period as the underwriters may require), except as
part of such underwritten offering or to the extent that such Holder is
prohibited by applicable law from agreeing to withhold securities from sale or
is acting in its capacity as a fiduciary or an investment adviser. A Holder that
is prohibited by applicable law from agreeing to withhold securities from sale
or is acting in its capacity as a fiduciary or an investment adviser shall, if
requested by the Company not more than 30 days before the commencement of such
an underwritten offering, notify the Company in writing of such prohibition at
least 10 days before the commencement of such underwritten offering. Without
limiting the scope of the term "fiduciary," a Holder shall be deemed to be
acting as a fiduciary or an investment adviser if its actions or the securities
proposed to be sold are subject to the Employee Retirement Income Security Act
of 1974, as amended, the Investment Company Act of 1940, as amended, or the
Investment Advisers Act of 1940, as amended, or if such securities are held in a
separate account under applicable insurance law or regulation.
The Company agrees (i) not to sell, make any short sale of, loan,
grant any option for the purchase of (other than employee stock options), or
effect any public offering or distribution of any equity securities of the
Company, or securities convertible into or exchangeable or exercisable for
equity securities of the Company, during the period commencing 10 days prior to
the date on which an underwritten offering pursuant to Section 2(a), 3 or 4
(which, in the case of an underwritten offering pursuant to Section 4, includes
Registrable Common Stock held by Piggyback Requesting Holders) and commences
until 90 days after the date on which a prospectus is filed with the Commission
with respect to the pricing of such underwritten offering (or such shorter
period as the underwriters may require), except as part of such underwritten
offering, and (ii) to use commercially reasonable efforts to cause each holder
of any equity securities, or securities convertible into or exchangeable or
exercisable for equity securities, in each case, acquired from the Company at
any time after the Effective Date (other than in a Public Offering or pursuant
to an employee benefits plan), to agree not to sell, make any short sale of,
loan, grant any option for the purchase of, or effect any public offering or
distribution of such securities, during such period.
16
8. Preparation; Confidentiality.
(a) Preparation In connection with the preparation and filing of
each registration statement under the Securities Act pursuant to this Agreement,
the Company shall (i) give representatives (designated to the Company in
writing) of each Selling Holder or group of Selling Holders holding at least 20%
of the shares of Registrable Common Stock registered under such registration
statement, the underwriters, if any, and one firm of counsel, one firm of
accountants and one firm of other agents retained on behalf of all underwriters
and one firm of counsel, one firm of accountants and one firm of other agents
retained on behalf of the Selling Holders holding a majority of the shares of
Registrable Common Stock covered by such registration statement, the reasonable
opportunity to participate in the preparation of such registration statement,
each prospectus included therein or filed with the Commission, and each
amendment thereof or supplement thereto, (ii) upon reasonable advance notice to
the Company, give each of them such reasonable access to all financial and other
records, corporate documents and properties of the Company and its subsidiaries,
as shall be necessary, in the reasonable opinion of such Selling Holders' and
such underwriters' counsel, to conduct a reasonable due diligence investigation
for purposes of the Securities Act, and (iii) upon reasonable advance notice to
the Company, provide such reasonable opportunities to discuss the business of
the Company with its officers, directors, employees and the independent
registered public accountants who have certified its financial statements as
shall be necessary, in the reasonable opinion of such Selling Holders' and such
underwriters' counsel, to conduct a reasonable due diligence investigation for
purposes of the Securities Act.
(b) Confidentiality.(i)
(i) Each Holder shall and shall use commercially reasonable
efforts to cause its directors, officers, partners, managers, members,
employees, advisors, agents and other representatives, including without
limitation attorneys, accountants, consultants and financial advisors
(collectively, "Representatives") to maintain the confidentiality of and
not to disclose any Confidential Material; provided, however, that a
Holder may disclose Confidential Material (A) to such of its
Representatives who need such information in connection with advising such
Holder with respect to its investment in securities of the Company, or (B)
to the extent required by applicable law, regulation, legal process or
court order or requested by regulatory authority.
(ii) If any Holder shall specify in a request delivered
pursuant to Section 3(a)(ii) or 4 that such Holder does not wish to
receive any Confidential Material, except as set forth in such request,
then the Company shall not deliver to such Holder any such Confidential
Material. Each Holder shall be bound by this Section 8(b) and shall remain
bound until the earlier of (A) the third anniversary of the date on which
such Holder is no longer a party to this Agreement, and (B) the first date
on which the Confidential Material received by such Holder ceases to be
Confidential Material.
9. Postponements.
(a) If the Company shall fail to file any registration statement
required to be filed pursuant to a request for registration under Section 3(a),
the Initiating Holder or Initiating
17
Holder Group requesting such registration shall have the right to withdraw the
request for registration if such withdrawal is made by the Holders that own a
majority of the shares of Registrable Common Stock as to which registration had
been requested. Any such withdrawal shall be made by giving written notice to
the Company within 20 days after the date on which a registration statement
would otherwise have been required to have been filed with the Commission under
Section 3 (i.e., 20 days after the date that is 90 days after the conclusion of
the period within which requests for registration may be given to the Company
pursuant to Section 3(a)(ii), or, if, as of such 90th day, the Company does not
have the financial statements required to be included in the registration
statement, 30 days after the receipt by the Company from its independent
registered public accountants of such financial statements). In the event of
such withdrawal, the request for registration shall not be counted for purposes
of determining the number of registrations to which Holders are entitled
pursuant to Section 3(a). The Company shall pay all Expenses incurred in
connection with a request for registration withdrawn pursuant to this Section
9(a).
(b) The Company shall not be obligated to file any registration
statement (other than the Initial Shelf), or file any amendment or supplement to
any registration statement, and may suspend any Selling Holder's rights to make
sales pursuant to any effective registration statement, at any time when the
Company, in the good faith judgment of its Board of Directors, reasonably
determines that the filing thereof at the time requested, or the offering of
securities pursuant thereto, would adversely affect a pending or proposed
offering of the Company's securities, a material financing, or a material
acquisition, merger, recapitalization, consolidation, reorganization or similar
transaction, or negotiations, discussions or pending proposals with respect
thereto. The Company shall promptly give the Selling Holders written notice that
such determination has been made by the Board of Directors, the general basis on
which such determination has been made and an estimate of the anticipated
duration of the delay. The filing of a registration statement, or any amendment
or supplement thereto, by the Company cannot be deferred, and the Selling
Holders' rights to make sales pursuant to an effective registration statement
cannot be suspended, pursuant to this Section 9(b) for more than 10 days after
the abandonment or consummation of any of the foregoing proposals or
transactions. The Company may so defer or suspend the filing or use of any
registration statement on not more than two occasions in any twelve month period
and for no more than 120 days in any twelve month period, provided, that, after
deferring or suspending the filing or use of any registration statement, the
Company may not again defer or suspend the filing or use of a registration
statement until at least 60 days have elapsed after the termination of a
deferral or suspension period. The Company shall promptly notify each Selling
Holder of the expiration or earlier termination of such deferral or suspension
period. If the Company suspends any Selling Holder's rights to make sales
pursuant to this Section 9(b), the applicable period during which a registration
statement is required pursuant to Section 2 or 3 to remain in effect shall be
extended by the number of days of such suspension.
10. Indemnification.
(a) Indemnification by the Company. In connection with any
registration statement filed by the Company pursuant to Section 2(a), 3(a) or 4,
the Company shall, and hereby agrees to, indemnify and hold harmless to the
fullest extent permitted by law, each Holder, each Person who participates as an
underwriter in the offering or sale of securities covered
18
by such registration statement, each other Person, if any, who controls (within
the meaning of Section 15 of the Securities Act or Section 20 of the Exchange
Act) any such Holder or underwriter, and their respective stockholders,
directors, officers, employees, partners, members, managers, accountants,
attorneys, agents, Affiliates and, in the case of any Holder that is an
investment company or hedge fund, such Holder's investment advisors (each, a
"Company Indemnitee"), against any losses, claims, damages, liabilities, joint
or several, actions or proceedings, whether commenced or threatened, in respect
thereof and whether or not such Company Indemnitee is a party thereto, and
expenses, including, without limitation, the reasonable fees, disbursements and
other charges of legal counsel and reasonable out-of-pocket costs of
investigation and defense, to which such Company Indemnitee may become subject
under the Securities Act or otherwise (collectively, a "Loss" or "Losses"),
insofar as such Losses arise out of or are based upon any untrue statement or
alleged untrue statement of any material fact contained in any registration
statement under which securities were registered or otherwise offered or sold
under the Securities Act or otherwise, any preliminary prospectus, final
prospectus or summary prospectus related thereto, any amendment or supplement
thereto, any exhibits to such registration statement or documents or other
information incorporated by reference into such registration statement or
prospectus (collectively, the "Offering Documents"), or any omission or alleged
omission to state therein a material fact required to be stated therein or
necessary to make the statements therein in the light of the circumstances in
which they were made not misleading, or any violation by the Company of any
federal or state law, rule or regulation applicable to the Company and relating
to action required of or inaction by the Company in connection with any such
registration; provided, that, the Company shall not be liable to any Company
Indemnitee in any such case to the extent that any such Loss arises out of or is
based upon an untrue statement or alleged untrue statement or omission or
alleged omission made in such Offering Documents in reliance upon and in
conformity with information furnished by such Company Indemnitee to the Company
in a writing specifically stating that it is for use in any such Offering
Document; and provided, further, that the Company shall not be liable to any
Person who participates as an underwriter in the offering or sale of Registrable
Common Stock or any other Person, if any, who controls (within the meaning of
Section 15 of the Securities Act or Section 20 of the Exchange Act) such
underwriter, in any such case to the extent that any such Loss arises out of
such Person's failure to send or give a copy of the final prospectus (including
any documents incorporated by reference therein), as the same may be then
supplemented or amended, to the Person asserting an untrue statement or alleged
untrue statement or omission or alleged omission at or prior to the written
confirmation of the sale of Registrable Common Stock to such Person if such
statement or omission was corrected in such final prospectus. Such indemnity
shall remain in full force and effect regardless of any investigation made by or
on behalf of such Company Indemnitee and shall survive the transfer of such
securities by such Company Indemnitee.
(b) Indemnification by the Offerors and Sellers. In connection with
any registration statement filed by the Company pursuant to Section 2(a), 3(a)
or 4 in which a Selling Holder has registered for sale Registrable Common Stock,
each such Selling Holder, severally and not jointly, shall and hereby agrees to
indemnify and hold harmless to the fullest extent permitted by law the Company
and each of its stockholders, directors, officers, employees, partners,
accountants, attorneys, agents and Affiliates, each other Person, if any, who
controls (within the meaning of Section 15 of the Securities Act or Section 20
of the Exchange Act) the Company, each other Selling Holder, each other Selling
Holder's stockholders, directors, officers, employees,
19
partners, members, managers, accountants, attorneys, agents, Affiliates, and, in
the case of any Holder that is an investment company or hedge fund, such
Holder's investment advisors, and each other Person, if any, who controls
(within the meaning of Section 15 of the Securities Act or Section 20 of the
Exchange Act) such other Selling Holder (each, a "Holder Indemnitee"), against
all Losses insofar as such Losses arise out of or are based upon any untrue
statement or alleged untrue statement of a material fact contained in any
Offering Documents or any 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 circumstances in which they were made not misleading, if
such untrue statement or alleged untrue statement or omission or alleged
omission was made in reliance upon and in conformity with information furnished
by such Selling Holder to the Company in a writing duly specifically stating
that it is for use in any such Offering Document; provided, however, that the
liability of such indemnifying party under this Section 10(b) shall be limited
to the amount of the net proceeds received by such indemnifying party in the
sale of Registrable Common Stock giving rise to such liability. Such indemnity
shall remain in full force and effect, regardless of any investigation made by
or on behalf of the Holder Indemnitee and shall survive the transfer of such
securities by such indemnifying party.
(c) Notices of Losses, etc. Promptly after receipt by an indemnified
party of written notice of the commencement of any action or proceeding
involving a Loss referred to in Section 10(a) or (b), such indemnified party
will, if a claim in respect thereof is to be made against an indemnifying party,
give written notice to the latter of the commencement of such action; provided,
however, that the failure of any indemnified party to give notice as provided
herein shall not relieve the indemnifying party of its obligations under Section
10(a) or (b), except to the extent that the indemnifying party is materially and
actually prejudiced by such failure to give notice. In case any such action is
brought against an indemnified party, the indemnifying party shall be entitled
to participate in and, unless in such indemnified party's reasonable judgment a
conflict of interest between such indemnified and indemnifying parties may exist
in respect of such Loss, to assume and control the defense thereof, in each case
at its own expense, jointly with any other indemnifying party similarly
notified, to the extent that it may wish, with counsel reasonably satisfactory
to such indemnified party, and after its assumption of the defense thereof, the
indemnifying party shall not be liable to such indemnified party for any legal
or other expenses subsequently incurred by the latter in connection with the
defense thereof other than reasonable costs of investigation, unless in such
indemnified party's reasonable judgment a conflict of interest between such
indemnified and indemnifying parties arises in respect of such claim after the
assumption of the defense thereof. No indemnifying party shall be liable for any
settlement of any such action or proceeding effected without its written
consent, which shall not be unreasonably withheld, delayed or conditioned. No
indemnifying party shall, without the consent of the indemnified party (which
consent shall not be unreasonably withheld, delayed or conditioned), consent to
entry of any judgment or enter into any settlement 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 Loss or
that requires action on the part of such indemnified party or otherwise subjects
the indemnified party to any obligation or restriction to which it would not
otherwise be subject.
(d) Contribution. If the indemnification provided for in this
Section 10 shall for any reason be unavailable to an indemnified party under
Section 10(a) or (b) in respect of any
20
Loss, then, in lieu of the amount paid or payable under Section 10(a) or (b),
the indemnified party and the indemnifying party under Section 10(a) or (b)
shall contribute to the aggregate Losses (including legal or other expenses
reasonably incurred in connection with investigating the same) (i) in such
proportion as is appropriate to reflect the relative fault of the Company and
the respective Selling Holders that resulted in such Loss or action in respect
thereof, with respect to the statements, omissions or actions that resulted in
such Loss or action in respect thereof, as well as any other relevant equitable
considerations, or (ii) if the allocation provided by clause (i) above is not
permitted by applicable law, in such proportion as shall be appropriate to
reflect the relative benefits received by the Company, on the one hand, and such
respective Selling Holders, on the other hand, from their sale of Registrable
Common Stock; provided, that, for purposes of this clause (ii), the relative
benefits received by the respective Selling Holders shall be deemed not to
exceed the amount received by such Selling Holders. No Person guilty of
fraudulent misrepresentation (within the meaning of Section 11(f) of the
Securities Act) shall be entitled to contribution from any Person who was not
guilty of such fraudulent misrepresentation. The obligations, if any, of the
Selling Holders to contribute as provided in this Section 10(d) are several in
proportion to the relative value of their respective shares of Registrable
Common Stock covered by such registration statement and not joint. In addition,
no Person shall be obligated to contribute hereunder any amounts in payment for
any settlement of any action or Loss effected without such Person's consent
(provided that such consent shall not be unreasonably withheld, delayed or
conditioned).
(e) Other Indemnification. The Company and, in connection with any
registration statement filed by the Company pursuant to Section 2(a), each
Holder, shall, and, in connection with any registration statement filed by the
Company pursuant to Section 3(a) or 4, each Holder who has registered for sale
Registrable Common Stock pursuant to such registration statement, shall, with
respect to any required registration or other qualification of securities under
any Federal or state law or regulation of any governmental authority other than
the Securities Act, indemnify Holder Indemnitees and Company Indemnitees,
respectively, against Losses, or, to the extent that indemnification shall be
unavailable to a Holder Indemnitee or Company Indemnitee, contribute to the
aggregate Losses of such Holder Indemnitee or Company Indemnitee in a manner
similar to that specified in the preceding subsections of this Section 10 (with
appropriate modifications).
(f) Indemnification Payments. The indemnification and contribution
required by this Section 10 shall be made by periodic payments of the amount
thereof during the course of any investigation or defense, as and when any Loss
is incurred and is due and payable.
11. Registration Rights to Others.
If the Company shall at any time hereafter provide to any holder of
any securities of the Company rights with respect to the registration of such
securities under the Securities Act, such rights shall not be in conflict with
or adversely affect any of the rights provided to the Holders in, or conflict
(in a manner that adversely affects Holders) with any other provisions included
in, this Agreement.
21
12. Adjustments Affecting Registrable Common Stock.
Without the written consent of Holders of a majority of the
outstanding shares of Registrable Common Stock, the Company shall not effect or
permit to occur any combination, subdivision or reclassification of Registrable
Common Stock that would materially adversely affect the ability of the Holders
to include such Registrable Common Stock in any registration of its securities
under the Securities Act contemplated by this Agreement or the marketability of
such Registrable Common Stock under any such registration or other offering.
13. Rules 144 and 144A; Public Market for Common Stock.
(a) The Company shall take all actions necessary to enable Holders
to sell Registrable Common Stock without registration under the Securities Act
within the limitation of the exemptions provided by (a) Rule 144 under the
Securities Act, as such Rule may be amended from time to time, (b) Rule 144A
under the Securities Act, as such Rule may be amended from time to time, or (c)
any similar rules or regulations hereafter adopted by the Commission, including,
without limiting the generality of the foregoing, filing on a timely basis all
reports required to be filed under the Exchange Act. Upon the written request of
any Holder, the Company shall deliver to such Holder a written statement as to
whether it has complied with such requirements.
(b) The Company shall (i) take all actions necessary to permit the
Common Stock to be eligible for quotation, and use commercially reasonable and
lawful efforts to encourage at least two market makers to quote the Common
Stock, in the NASDAQ OTC Bulletin Board Service, in each case as soon as
practicable after the Effective Date; (ii) cause the Common Stock to be listed
in the NASDAQ SmallCap Market as soon as practicable after the Company and the
Common Stock meet the minimum financial requirements for listing in such market;
and (iii) cause the Common Stock to be listed in the NASDAQ National Market or a
national securities exchange as soon as practicable after the Company and the
Common Stock meet the minimum financial requirements for listing in such market
or such exchange.
14. Amendments and Waivers.
Any provision of this Agreement may be amended, modified or waived
if, but only if, the written consent to such amendment, modification or waiver
has been obtained from the Company and (i) except as provided in clause (ii)
below, the Holder or Holders of at least a majority of the shares of Registrable
Common Stock then outstanding and held by all Holders and (ii) in the case of
any amendment, modification or waiver of any provision of Section 5 or 10 or
this Section 14 or any provision as to the number of requests for registration
to which holders of Registrable Common Stock are entitled under Section 3 or 4,
or any amendment, modification or waiver that adversely affects any right and/or
obligation under this Agreement of any Holder, the written consent of each
Holder so affected. In addition to the foregoing, (i) the Company may waive any
of its own rights of the Company under this Agreement if, but only if, the
Company consents in writing to such waiver and (ii) any Holder may waive any of
its own rights under this Agreement if, but only if, such Holder consents in
writing to such waiver.
22
15. Nominees for Beneficial Owners.
In the event that any Registrable Common Stock is held by a nominee
for the beneficial owner thereof, the beneficial owner thereof may, at its
election in writing delivered to the Company, be treated as the Holder of such
Registrable Common Stock for purposes of any request or other action by any
Holder or Holders pursuant to this Agreement or any determination of the number
or percentage of shares of Registrable Common Stock held by any Holder or
Holders contemplated by this Agreement. If the beneficial owner of any
Registrable Common Stock so elects, the Company may require assurances
reasonably satisfactory to it of such owner's beneficial ownership of such
Registrable Common Stock.
16. Assignment.
The provisions of this Agreement shall be binding upon and inure to
the benefit of the parties hereto and their respective heirs, successors and
permitted assigns. Any Holder may assign to any Transferee (as permitted under
applicable law) of its Registrable Common Stock its rights and obligations under
this Agreement, provided that (i) such Transferee shall agree in writing with
the parties hereto prior to the assignment to be bound by the terms of this
Agreement as if it were an original party hereto and (ii) after giving effect to
the Transfer, such Transferee would be a 10% Holder, whereupon such assignee
shall for all purposes be deemed to be a Holder under this Agreement. Except as
provided above or otherwise permitted by this Agreement, neither this Agreement
nor any right, remedy, obligation or liability arising hereunder or by reason
hereof shall be assignable by any Holder without the prior written consent of
the other parties hereto. The Company may not assign this Agreement or any
right, remedy, obligation or liability arising hereunder or by reason hereof.
17. Calculation of Percentage or Number of Shares of Registrable
Common Stock.
For purposes of this Agreement, all references to a percentage or
number of shares of Registrable Common Stock or Common Stock shall be calculated
based upon the number of shares of Registrable Common Stock or Common Stock, as
the case may be, outstanding at the time such calculation is made and shall
exclude any Common Stock owned by the Company or any subsidiary of the Company.
For the purposes of calculating any percentage or number of shares of
Registrable Common Stock or Common Stock as contemplated by the previous
sentence, the terms "10% Holder", "Holder" "Initiating Holder" and "Original
Holder" shall include all Affiliates thereof owning any shares of Registrable
Common Stock or Common Stock.
18. Termination of Registration Rights.
The Company's obligations under Sections 2(a), 3(a) and 4 to
register sales of Registrable Common Stock under the Securities Act shall
terminate on the fifth anniversary of the Effective Date; provided, however,
that if on such fifth anniversary any Holder is a 10% Holder, the Company's
obligations hereunder shall continue solely with respect to such 10% Holder and
shall terminate when such Holder ceases to be a 10% Holder; provided further
that, if the disposition of Registered Common Stock is suspended as a result of
a notice of the type described in Section 6(h), or if the Company defers any
registration and/or suspends any Selling Holder's rights to make sales pursuant
to Section 9(b), the Company's obligations under Sections
23
2(a), 3(a) and 4 to register Registrable Common Stock for sale under the
Securities Act shall be extended by the total number of days of all such
deferrals and suspensions. In addition, the Company's obligations under this
Agreement shall cease with respect to any Person when such Person (i) ceases to
be a Holder or (ii) delivers to the Company a Withdrawal Notice (as hereinafter
defined) in accordance with the provisions of this Section 18. Any Holder may
elect, at any time and from time to time, to cause all (but not less than all)
of the Registrable Common Stock held by such Holder not to be subject to this
Agreement by delivery of a written notice to the Company (a "Withdrawal
Notice"). Upon receipt of a Withdrawal Notice, all such shares shall no longer
be deemed to be Registrable Common Stock and such Holder shall no longer be
bound by or entitled to the benefits of this Agreement; provided that (except as
provided below), no Holder may deliver a Withdrawal Notice during the period
commencing on the date on which the Company sends such Holder written notice of
its intention to effect a registration pursuant to Sections 3 or 4 and until the
earlier of (y) 90 days after the effective date of such registration or (z) the
date on which the Company shall, in accordance with Sections 4 or 9, not
register any securities with respect to which it had given written notice of its
intention to register to such Holder. Notwithstanding any of the foregoing, (i)
the Company's obligations under Sections 5 and 10, (ii) the Holders' obligations
under Section 8(b) and (iii) both the Company's and the Holders' obligations
under Section 7(d) with respect to any registration under either Section 2(a),
3(a) or 4 that commences prior to the termination of this Agreement shall
survive in accordance with their terms.
19. Miscellaneous.
(a) Further Assurances. Each of the parties hereto shall execute
such documents and perform such further acts as may be reasonably required or
advisable to carry out the provisions of this Agreement and the transactions
contemplated hereby.
(b) Headings. The headings in this Agreement are for convenience of
reference only and shall not control or affect the meaning or construction of
any provisions hereof.
(c) Conflicting Instructions. If the Company receives conflicting
instructions, notices or elections from two or more Persons with respect to the
same shares of Registrable Common Stock, the Company will act upon the basis of
the instruction, notice or election received from the registered owner of such
Registrable Common Stock.
(d) Remedies. Each Holder, 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. The parties agree that
monetary damages would not be adequate compensation for any loss incurred by
reason of a breach by it of the provisions of this Agreement and each party
hereby agrees to waive the defense in any action for specific performance that a
remedy at law would be adequate.
(e) Entire Agreement. This Agreement constitutes the entire
agreement and understanding of the parties hereto in respect of the subject
matter contained herein, and there are no restrictions, promises,
representations, warranties, covenants, or undertakings with respect to the
subject matter hereof, other than those expressly set forth or referred to
herein. This Agreement
24
supersedes all prior agreements and understandings between the parties hereto
with respect to the subject matter hereof.
(f) Notices. Any notices or other communications to be given
hereunder by any party to another party shall be in writing, shall be delivered
personally, by telecopy, by certified or registered mail, postage prepaid,
return receipt requested, or by Federal Express or other comparable delivery
service, as follows:
(i) if to the Company, to:
Trico Marine Services, Inc.
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention:
Telecopy:
with a copy to
▇▇▇▇▇▇ & ▇▇▇▇▇▇ L.L.P.
▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
(ii) if to a Holder, to the address of such Holder as set
forth in the signature pages hereto, or
(iii) to such other address as the party to whom notice is to
be given may provide in a written notice to the other parties hereto, a
copy of which shall be on file with the Secretary of the Company.
Notice shall be effective when delivered if given personally, when receipt is
acknowledged if telecopied, three Business Days after mailing if given by
registered or certified mail as described above, and one Business Day after
deposit if given by Federal Express or comparable delivery service.
(g) Governing Law. This Agreement shall be governed by and construed
in accordance with, and all disputes arising under or relating to this Agreement
shall be resolved in accordance with, the internal laws of the State of New
York.
(h) Severability. Notwithstanding any provision of this Agreement,
neither the Company nor any other party hereto shall be required to take any
action that would be in violation of any applicable Federal or state securities
law. The invalidity or unenforceability of any provision of this Agreement in
any jurisdiction shall not affect the validity, legality or enforceability of
any other provision of this Agreement in such jurisdiction or the validity,
legality or enforceability of this Agreement, including any such provision, in
any other jurisdiction, it being
25
intended that all rights and obligations of the parties hereunder shall be
enforceable to the fullest extent permitted by law.
(i) Counterparts. This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original but all of which shall
constitute one and the same Agreement.
26
IN WITNESS WHEREOF, the parties hereto have executed this Agreement
as of the date first above written.
TRICO MARINE SERVICES, INC.
By: ____________________________________
Name:
Title:
27
HOLDERS:
[Name of Institution]
By: ____________________________________
Name:
Title:
28