REGISTRATION RIGHTS AGREEMENT
REGISTRATION RIGHTS AGREEMENT (this "Agreement"), dated as of February
12, 2004, by and between OMNI ENERGY SERVICES CORP., a Louisiana corporation
(the "Company"), and each of the entities whose names appear on the signature
pages hereof. Such entities are each referred to herein as an "Investor" and,
collectively, as the "Investors".
The Company has agreed, on the terms and subject to the conditions set
forth in the Securities Purchase Agreement, dated as of February 12, 2004 (the
"Securities Purchase Agreement"), to issue and sell to the Investors named
therein 6.5% Convertible Debentures (the "Debentures") and Warrants (the
"Warrants").
The Debentures are convertible into shares (the "Conversion Shares") of
the Company's common stock, par value $0.01 per share (the "Common Stock"). The
Warrants are exercisable into shares of Common Stock (the "Warrant Shares") in
accordance with their terms.
In order to induce each Investor to enter into the Securities Purchase
Agreement, the Company has agreed to provide certain registration rights under
the Securities Act of 1933, as amended (the "Securities Act"), and under
applicable state securities laws. Capitalized terms used herein and not
otherwise defined shall have the respective meanings set forth in the Securities
Purchase Agreement.
In consideration of each Investor entering into the Securities Purchase
Agreement, and other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties agree as follows:
1. DEFINITIONS.
For purposes of this Agreement, the following terms shall have the
meanings specified:
(a) "Debenture Shares" means the Conversion Shares, the
Interest Payment Shares (as defined in the Debenture) and the Put
Payment Shares (as defined in the Debenture);
(b) "Effective Date" means the date on which the Registration
Statement is declared effective by the Securities and Exchange
Commission (the "Commission");
(c) "Filing Deadline" means the sixtieth (60th) calendar day
following the Closing Date;
(d) "Holder" means any person owning or having the right to
acquire, through conversion of the Debentures or exercise of the
Warrants or otherwise, Registrable Securities, including initially each
Investor and thereafter any permitted assignee thereof;
(e) "Registrable Securities" means the Debenture Shares and
the Warrant Shares and any other shares of Common Stock issuable
pursuant to the terms of the Debentures or the Warrants, and any shares
of capital stock issued or issuable from time to time (with any
adjustments) in replacement of, in exchange for or otherwise in respect
of the Debenture Shares or the Warrant Shares;
(f) "Registration Deadline" means the one hundred and fiftieth
(150th) calendar day following the Closing Date;
(g) "Registration Period" has the meaning set forth in
paragraph 2(b) below; and
(h) "Registration Statement" means the Registration Statement
to be filed hereunder relating to resales of the Registrable Securities
issued or issuable under the Debentures or the Warrants.
2. REGISTRATION.
(a) Registration Statement. On or before the Filing Deadline,
the Company shall prepare and file with the Commission a Registration Statement
on Form S-3 as a "shelf" registration statement under Rule 415 under the
Securities Act ("Rule 415") covering the resale of a number of shares of
Registrable Securities equal to the one hundred and fifty percent (150%) of the
number of shares of Common Stock issuable on the Closing Date pursuant to the
conversion of the Debentures and the exercise of the Warrants (such number to be
determined using the Conversion Price or Exercise Price, as applicable, in
effect on such dates and without regard to any restriction on the ability of any
Holder to convert such Holder's Debentures or exercise such Holder's Warrant as
of such date). The Registration Statement shall state, to the extent permitted
by Rule 416 under the Securities Act, that it also covers such indeterminate
number of additional shares of Common Stock as may become issuable upon the
conversion of the Debentures and exercise of the Warrants in order to prevent
dilution resulting from stock splits, stock dividends or similar events.
(b) Effectiveness. The Company shall use its best efforts to
cause the Registration Statement to become effective prior to the Registration
Deadline. The Company shall respond promptly to any and all comments made by the
staff of the Commission on the Registration Statement, and shall submit to the
Commission, within two (2) Business Days after the Company
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learns that no review of the Registration Statement will be made by the staff of
the Commission or that the staff of the Commission has no further comments on
the Registration Statement, as the case may be, a request for acceleration of
the effectiveness of the Registration Statement to a time and date not later
than forty-eight (48) hours after the submission of such request. The Company
will maintain the effectiveness of the Registration Statement until the earlier
to occur of (i) the date on which all of the Registrable Securities eligible for
resale thereunder have been publicly sold pursuant to either the Registration
Statement or Rule 144 and (ii) the date on which all of the Registrable
Securities remaining to be sold under the Registration Statement (in the
reasonable opinion of counsel to the Holder) may be immediately sold to the
public under Rule 144(k) or any successor provision, assuming that all Warrant
Shares are issued by means of a cashless exercise of the Warrants (the period
beginning on the Closing Date and ending on the earlier to occur of (i) or (ii)
above being referred to herein as the "Registration Period").
(c) Registration Default. If (A) the Registration Statement is
not filed on or before the Filing Deadline or declared effective by the
Commission on or before the Registration Deadline, (B) after the Registration
Statement has been declared effective by the Commission and during a period in
which an Allowed Delay (as hereinafter defined) is not in effect, sales of
Registrable Securities cannot be made by a Holder under the Registration
Statement for any reason not within the exclusive control of such Holder (other
than such Registrable Securities as are then freely saleable pursuant to Rule
144(k)), or (C) an amendment to the Registration Statement, or a new
registration statement, required to be filed pursuant to the terms of paragraph
4(k) below is not filed on or before the date required by such paragraph (each
of (A), (B) and (C) being referred to herein as a "Registration Default"), and
such Registration Default, (i) in the case of a Registration Default described
in clause (A), occurs or is continuing after seven (7) business days following
delivery of a written notice of the Registration Deadline by Investor at any
time after the date that is thirty (30) days prior to the Registration Deadline,
or (ii) in the case of a Registration Default described in clause (B), or clause
(C), continues for seven (7) business days following delivery of a written
notice of such default by the Investor to the Company, the Company shall make
payments to each Holder equal to one and one-half percent (1.5%) of the
aggregate amount of principal and interest outstanding on the Debentures then
held by such Holder for each thirty (30) day period in which a Registration
Default occurs (prorated for any period of less than thirty days). Each such
payment shall be made within five (5) Business Days following the last day of
the calendar month in which a Registration Default occurs. Any such payment
shall be in addition to any other remedies available to each Holder at law or in
equity, whether pursuant to the terms hereof, the Securities Purchase Agreement,
or otherwise.
(d) Allowed Delay. The Company may delay the disclosure of
material non-public information, and suspend the availability of the
Registration Statement, for no more than (i) ten (10) consecutive Business Days
or (ii) thirty (30) calendar days in any twelve (12) month period, in the event
of a proposed merger, reorganization or similar transaction involving the
Company, as long as its board of directors (A) has determined, upon the advice
of counsel, that such information
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would be required to be disclosed in an offering registered under the Securities
Act and (B) reasonably deems it in the Company's best interests not to disclose
such information publicly (an "Allowed Delay"). The Company shall promptly (i)
notify each Holder in writing of the existence of material non-public
information giving rise to an Allowed Delay (but in no event, without the prior
written consent of such Holder, shall the Company disclose to such Holder any of
the facts or circumstances regarding any material non-public information), (ii)
advise each Holder in writing to cease all sales under the Registration
Statement until the termination of the Allowed Delay and (iii) notify each
Holder in writing immediately upon the termination or expiration of an Allowed
Delay.
(e) Allocation of Debenture Shares and Warrant Shares. The
initial number of Debenture Shares and Warrant Shares included in any
Registration Statement and each increase in the number thereof included therein
shall be allocated pro rata among the Holders based on the aggregate number of
Registrable Securities issuable to each Holder at the time the Registration
Statement covering such initial number of Registrable Securities or increase
thereof is declared effective by the Commission (such number to be determined
using the Conversion Price or Exercise Price, as applicable, in effect at such
time and without regard to any restriction on the ability of a Holder to convert
such Holder's Debentures or exercise such Holder's Warrant as of such date). In
the event that a Holder sells or otherwise transfers any of such Holder's
Registrable Securities, each transferee shall be allocated the portion of the
then remaining number of Registrable Securities included in such Registration
Statement allocable to the transferor.
(f) Registration of Other Securities. During the period
beginning on the date hereof and ending on the Effective Date, the Company shall
refrain from filing any registration statement (other than (i) the Registration
Statement or (ii) a registration statement on Form S-8 with respect to stock
option plans and stock plans currently in effect).
3. PIGGYBACK REGISTRATION.
If at any time prior to the expiration of the Registration Period, (i)
the Company proposes to register shares of Common Stock under the Securities Act
in connection with the public offering of such shares for cash (a "Proposed
Registration") other than a registration statement on Form S-8 or any successor
or other forms promulgated for similar purposes and (ii) a Registration
Statement covering the sale of all of the Registrable Securities is not then
effective and available for sales thereof by the Holders, the Company shall, at
such time, promptly give each Holder written notice of such Proposed
Registration. Each Holder shall have ten (10) Business Days from its receipt of
such notice to deliver to the Company a written request specifying the amount of
Registrable Securities that such Holder intends to sell and such Holder's
intended method of distribution. Upon receipt of such request, the Company shall
use its best efforts to cause all Registrable Securities which the Company has
been requested to register to be registered under the Securities Act to the
extent necessary to permit their sale or other disposition in accordance with
the intended methods of distribution specified in the request of such Holder;
provided, however, that the Company shall have
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the right to postpone, withdraw or delay any registration effected pursuant to
this Section 3 without obligation to the Holder. If, in connection with any
underwritten public offering for the account of the Company or for stockholders
of the Company that have contractual rights to require the Company to register
shares of Common Stock, the managing underwriter(s) thereof shall impose a
limitation on the number of shares of Common Stock which may be included in a
registration statement because, in the judgment of such underwriter(s),
marketing or other factors dictate such limitation is necessary to facilitate
such offering, then the Company shall be obligated to include in the
registration statement only such limited portion of the Registrable Securities
with respect to which each Holder has requested inclusion hereunder as such
underwriter(s) shall permit. Any exclusion of Registrable Securities shall be
made pro rata among the Holders seeking to include Registrable Securities in a
registration statement, in proportion to the number of Registrable Securities
sought to be included by such Holders; provided, however, that the Company shall
not exclude any Registrable Securities unless the Company has first excluded all
outstanding securities, the holders of which are not entitled to inclusion of
such securities in the registration statement or are not entitled to pro rata
inclusion with the Registrable Securities; and provided, further, that, after
giving effect to the immediately preceding proviso, any exclusion of Registrable
Securities shall be made pro rata with holders of other securities having the
right to include such securities in the registration statement. In no event
shall the Company include any securities other than the Registrable Securities
on the Registration Statement or on any registration statement filed by the
Company on behalf of the Holders pursuant to the terms hereof.
4. OBLIGATIONS OF THE COMPANY.
In addition to performing its obligations hereunder, including without
limitation those pursuant to paragraphs 2(a) and (b) above, the Company shall:
(a) prepare and file with the Commission such amendments and
supplements to the Registration Statement and the prospectus used in connection
with the Registration Statement as may be necessary to comply with the
provisions of the Securities Act or to maintain the effectiveness of the
Registration Statement during the Registration Period, or as may be reasonably
requested by a Holder in order to incorporate information concerning such Holder
or such Holder's intended method of distribution;
(b) as soon as practicable following the Closing, secure the
listing of all Registrable Securities on the Nasdaq National Market System, and
provide each Holder with reasonable evidence thereof;
(c) upon the effectiveness of the Registration Statement,
furnish to each Holder such number of copies of the prospectus included in the
Registration Statement, including a preliminary prospectus, in conformity with
the requirements of the Securities Act, and such other documents as such Holder
may reasonably request in order to facilitate the disposition of such Holder's
Registrable Securities;
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(d) use all commercially reasonable efforts to register or
qualify the Registrable Securities under the securities or "blue sky" laws of
such jurisdictions within the United States as shall be reasonably requested in
writing from time to time by a Holder, and do any and all other acts or things
which may be necessary or advisable to enable such Holder to consummate the
public sale or other disposition of the Registrable Securities in such
jurisdictions; provided that the Company shall not be required in connection
therewith or as a condition thereto to qualify to do business, to subject itself
to taxation in any such jurisdiction or to file a general consent to service of
process in any such jurisdiction;
(e) in the event of an underwritten public offering of the
Registrable Securities, enter into (together with all Holders proposing to
distribute Registrable Securities through such underwriting) and perform its
obligations under an underwriting agreement, in usual and customary form
reasonably acceptable to the Company, with the managing underwriter of such
offering;
(f) notify each Holder immediately after becoming aware of the
occurrence of any event (but shall not, without the prior written consent of
such Holder, disclose to such Holder any facts or circumstances constituting
material non-public information) as a result of which the prospectus included in
the Registration Statement, as then in effect, contains an untrue statement of
material fact or omits to state a material fact required to be stated therein or
necessary to make the statements therein not misleading in light of the
circumstances then existing, and (except during an Allowed Delay) as promptly as
practicable prepare, file with the Commission and furnish to each Holder a
reasonable number of copies of a supplement or an amendment to such prospectus
as may be necessary so that such prospectus does not contain an untrue statement
of material fact or omit to state a material fact required to be stated therein
or necessary to make the statements therein not misleading in light of the
circumstances then existing;
(g) use all commercially reasonable efforts to prevent the
issuance of any stop order or other order suspending the effectiveness of the
Registration Statement and, if such an order is issued, to obtain the withdrawal
thereof at the earliest possible time and to notify each Holder of the issuance
of such order and the resolution thereof;
(h) furnish to each Holder, on the date that the Registration
Statement, or any successor registration statement, becomes effective, (x) a
letter, dated such date, of outside counsel representing the Company (and
reasonably acceptable to such Holder) addressed to such Holder, confirming such
effectiveness and, to the knowledge of such counsel, the absence of any stop
order, and (y) in the case of an underwriting (or if the Commission deems such
Holder as an underwriter for disclosure purposes), (A) a copy of an opinion,
dated such date, of such outside counsel, in such form and substance as is
required to be given to the underwriters, and (B) a letter addressed to such
Holder, dated such date, from the Company's independent certified public
accountants, in such form
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and substance as is required to be given by the Company's independent certified
public accountants to such underwriters;
(i) provide to each Holder and its representatives, upon
reasonable prior notice, the opportunity to conduct a reasonable inquiry of the
Company's financial and other records during normal business hours and make
available its officers for questions regarding information which such Holder may
reasonably request in order to fulfill any due diligence obligation on its part;
(j) permit counsel for each Holder to review the Registration
Statement and all amendments and supplements thereto, and any comments made by
the staff of the Commission concerning such Holder and/or the transactions
contemplated by the Transaction Documents and the Company's responses thereto,
within a reasonable period of time (but in no event less than three (3) Business
Days after such Holder has received such documents) prior to the filing thereof
with the Commission (or, in the case of comments made by the staff of the
Commission, within a reasonable period of time following the receipt thereof by
the Company); and
(k) in the event that, at any time, the number of shares
available under the Registration Statement is insufficient to cover one hundred
and fifty percent 150% of the Registrable Securities issuable under the related
Debentures and Warrants (such number to be determined using the Conversion Price
or Exercise Price, as applicable, in effect at such time and without regard to
any restriction on the ability of any Holder to convert such Holder's Debentures
or exercise such Holder's Warrant) the Company shall promptly amend the
Registration Statement or file a new registration statement, in any event as
soon as practicable, but not later than the tenth (10th) day following notice
from a Holder of the occurrence of such event, so that the Registration
Statement or such new registration statement, or both, covers no less than one
hundred and fifty percent (150%) of the Registrable Securities eligible for
resale thereunder and issuable under the related Debentures and Warrants (such
number to be determined using the Conversion Price or Exercise Price, as
applicable, in effect at the time of such amendment or filing and without regard
to any restriction on the ability of any Holder to convert such Holder's
Debentures or exercise such Holder's Warrant). The Company shall use its best
efforts to cause such amendment and/or new Registration Statement to become
effective as soon as practicable following the filing thereof. Any Registration
Statement filed pursuant to this paragraph 4(k) shall state that, to the extent
permitted by Rule 416 under the Securities Act, such Registration Statement also
covers such indeterminate number of additional shares of Common Stock as may
become issuable upon conversion of the Debentures and exercise of the Warrants
in order to prevent dilution resulting from stock splits, stock dividends or
similar events. Unless and until such amendment or new Registration Statement
becomes effective, each Holder shall have the rights described in Section 2(c)
above.
5. OBLIGATIONS OF EACH HOLDER.
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In connection with the registration of Registrable Securities pursuant
to a Registration Statement, each Holder shall:
(a) timely furnish to the Company in writing such information
regarding itself and the intended method of disposition of such Registrable
Securities as the Company shall reasonably request in order to effect the
registration thereof;
(b) upon receipt of any notice from the Company of the
happening of any event of the kind described in paragraphs 4(f) or 4(g),
immediately discontinue any sale or other disposition of such Registrable
Securities pursuant to such Registration Statement until the filing of an
amendment or supplement as described in paragraph 4(f) or withdrawal of the stop
order referred to in paragraph 4(g), and use commercially reasonable efforts to
maintain the confidentiality of such notice and its contents;
(c) in the event of an underwritten offering of such
Registrable Securities in which such Holder participates, enter into a customary
and reasonable underwriting agreement and execute such other documents as the
Company and the managing underwriter for such offering may reasonably request;
(d) to the extent required by applicable law, deliver a
prospectus to the Investor of such Registrable Securities;
(e) notify the Company when it has sold all of the Registrable
Securities held by it; and
(f) notify the Company in the event that any information
supplied by such Holder in writing for inclusion in such Registration Statement
or related prospectus is untrue or omits to state a material fact required to be
stated therein or necessary to make such information not misleading in light of
the circumstances then existing; immediately discontinue any sale or other
disposition of such Registrable Securities pursuant to such Registration
Statement until the filing of an amendment or supplement to such prospectus as
may be necessary so that such prospectus does not contain an untrue statement of
material fact or omit to state a material fact required to be stated therein or
necessary to make the statements therein not misleading in light of the
circumstances then existing; and use commercially reasonable efforts to assist
the Company as may be appropriate to make such amendment or supplement effective
for such purpose.
6. INDEMNIFICATION.
In the event that any Registrable Securities are included in a
Registration Statement under this Agreement:
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(a) To the extent permitted by law, the Company shall
indemnify and hold harmless each Holder, the officers, directors, managers,
shareholders, partners, members, employees, agents and representatives of such
Holder, and each person, if any, who controls such Holder within the meaning of
the Securities Act or the Securities Exchange Act of 1934, as amended (the
"Exchange Act"), against any losses, claims, damages, liabilities or reasonable
out-of-pocket expenses (whether joint or several) (collectively, including legal
or other expenses reasonably incurred in connection with investigating or
defending same, "Losses"), insofar as any such Losses arise out of or are based
upon (i) any untrue statement or alleged untrue statement of a material fact
contained in such Registration Statement, including any preliminary prospectus
or final prospectus contained therein or any amendments or supplements thereto,
or (ii) the omission or alleged omission to state therein a material fact
required to be stated therein, or necessary to make the statements therein, in
light of the circumstances under which they were made, not misleading. Subject
to the provisions of paragraph 6(c) below, the Company will reimburse such
Holder, and each such officer, director, employee, agent, representative or
controlling person, for any legal or other out-of-pocket expenses as reasonably
incurred by any such entity or person in connection with investigating or
defending any Loss; provided, however, that the foregoing indemnity shall not
apply to amounts paid in settlement of any Loss if such settlement is effected
without the consent of the Company (which consent shall not be unreasonably
withheld), nor shall the Company be obligated to indemnify any person for any
Loss to the extent that such Loss is (i) based upon and is in conformity with
written information furnished by such person expressly for use in such
Registration Statement or (ii) based on a failure of such person to deliver or
cause to be delivered the final prospectus contained in the Registration
Statement and made available by the Company, if such delivery is required by
applicable law.
(b) To the extent permitted by law, each Holder who is named
in such Registration Statement as a selling stockholder, acting severally and
not jointly, shall indemnify and hold harmless the Company, the officers,
directors, employees, agents and representatives of the Company, and each
person, if any, who controls the Company within the meaning of the Securities
Act or the Exchange Act, against any Losses to the extent (and only to the
extent) that any such Losses are based upon and in conformity with written
information furnished by such Holder expressly for use in such Registration
Statement. Subject to the provisions of paragraph 6(c) below, such Holder will
reimburse any legal or other expenses as reasonably incurred by the Company and
any such officer, director, employee, agent, representative, or controlling
person, in connection with investigating or defending any such Loss; provided,
however, that the foregoing indemnity shall not apply to amounts paid in
settlement of any such Loss if such settlement is effected without the consent
of such Holder (which consent shall not be unreasonably withheld); and provided,
further, that, in no event shall any indemnity under this subsection 6(b) exceed
the net proceeds resulting from the sale of the Registrable Securities sold by
such Holder under such Registration Statement.
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(c) Promptly after receipt by an indemnified party under this
Section 6 of notice of the commencement of any action (including any
governmental action), such indemnified party will, if a claim in respect thereof
is to be made against any indemnifying party under this Section 6, deliver to
the indemnifying party a written notice of the commencement thereof and the
indemnifying party shall have the right to participate in and to assume the
defense thereof with counsel mutually satisfactory to the parties; provided,
however, that an indemnified party shall have the right to retain its own
counsel, with the reasonably incurred fees and expenses of one such counsel for
all indemnified parties to be paid by the indemnifying party, if representation
of such indemnified party by the counsel retained by the indemnifying party
would be inappropriate under applicable standards of professional conduct due to
actual or potential conflicting interests between such indemnified party and any
other party represented by such counsel in such proceeding. The failure to
deliver written notice to the indemnifying party within a reasonable time of the
commencement of any such action, to the extent prejudicial to its ability to
defend such action, shall relieve such indemnifying party of any liability to
the indemnified party under this Section 6 with respect to such action, but the
omission so to deliver written notice to the indemnifying party will not relieve
it of any liability that it may have to any indemnified party otherwise than
under this Section 6 or with respect to any other action unless the indemnifying
party is materially prejudiced as a result of not receiving such notice.
(d) In the event that the indemnity provided in paragraph (a)
or (b) of this Section 6 is unavailable or insufficient to hold harmless an
indemnified party for any reason, the Company and each Holder agree, severally
and not jointly, to contribute to the aggregate Losses to which the Company or
such Holder may be subject in such proportion as is appropriate to reflect the
relative fault of the Company and such Holder in connection with the statements
or omissions which resulted in such Losses; provided, however, that in no case
shall such Holder be responsible for any amount in excess of the net proceeds
resulting from the sale of the Registrable Securities sold by it under the
Registration Statement. Relative fault shall be determined by reference to
whether any alleged untrue statement or omission relates to information provided
by the Company or by such Holder. The Company and each Holder agree that it
would not be just and equitable if contribution were determined by pro rata
allocation or any other method of allocation which does not take account of the
equitable considerations referred to above. Notwithstanding the provisions of
this paragraph (d), 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 is not guilty of such fraudulent
misrepresentation. For purposes of this Section 6, each person who controls a
Holder within the meaning of either the Securities Act or the Exchange Act and
each officer, director, employee, agent or representative of such Holder shall
have the same rights to contribution as such Holder, and each person who
controls the Company within the meaning of either the Securities Act or the
Exchange Act and each officer, director, employee, agent or representative of
the Company shall have the same rights to contribution as the Company, subject
in each case to the applicable terms and conditions of this paragraph (d).
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(e) The obligations of the Company and each Holder under this
Section 6 shall survive the conversion of the Debentures and exercise of the
Warrants in full, the completion of any offering or sale of Registrable
Securities pursuant to a Registration Statement under this Agreement, or
otherwise.
7. REPORTS.
With a view to making available to each Holder the benefits of
Rule 144 under the Securities Act ("Rule 144") and any other similar rule or
regulation of the Commission that may at any time permit such Holder to sell
securities of the Company to the public without registration, the Company agrees
to:
(a) make and keep public information available, as those terms
are understood and defined in Rule 144;
(b) use its best efforts to file with the Commission in a
timely manner all reports and other documents required of the Company under the
Securities Act and the Exchange Act; and
(c) furnish to such Holder, so long as such Holder owns any
Registrable Securities, promptly upon written request (i) a written statement by
the Company, if true, that it has complied with the reporting requirements of
Rule 144, the Securities Act and the Exchange Act, (ii) to the extent not
publicly available through the Commission's XXXXX database, a copy of the most
recent annual or quarterly report of the Company and such other reports and
documents so filed by the Company, and (iii) such other information as may be
reasonably requested by such Holder in connection with such Holder's compliance
with any rule or regulation of the Commission which permits the selling of any
such securities without registration.
8. MISCELLANEOUS.
(a) Expenses of Registration. Except as otherwise provided in
the Securities Purchase Agreement, all reasonable expenses, other than
underwriting discounts and commissions and fees and expenses of counsel and
other advisors to each Holder, incurred in connection with the registrations,
filings or qualifications described herein, including (without limitation) all
registration, filing and qualification fees, printers' and accounting fees, the
fees and disbursements of counsel for the Company, and the fees and
disbursements incurred in connection with the opinion and letter described in
paragraph 4(h) hereof, shall be borne by the Company.
(b) Amendment; Waiver. Except as expressly provided herein,
neither this Agreement nor any term hereof may be amended or waived except
pursuant to a written instrument executed by the Company and the Holders of at
least two-thirds (2/3) of the Registrable Securities into which all of the
Debentures and Warrants then outstanding are convertible or exercisable (without
regard to any limitation on such conversion or exercise). Any amendment or
waiver effected in accordance with this paragraph shall be binding upon each
Holder, each future Holder and the Company.
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(c) Notices. Any notice, demand or request required or
permitted to be given by the Company or an Investor pursuant to the terms of
this Agreement shall be in writing and shall be deemed delivered (i) when
delivered personally or by verifiable facsimile transmission, unless such
delivery is made on a day that is not a Business Day, in which case such
delivery will be deemed to be made on the next succeeding Business Day, (ii) on
the next Business Day after timely delivery to an overnight courier and (iii) on
the Business Day actually received if deposited in the U.S. mail (certified or
registered mail, return receipt requested, postage prepaid), addressed as
follows:
If to the Company:
OMNI Energy Services Corp.
0000 XX Xxxxxxxxxx Xxxxxxx
Xxxxxxxx, XX 00000
Attn: Xxxxx X. Xxxxxx
Tel: (000) 000-0000
Fax: (000) 000-0000
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with a copy to:
Xxxxx Liddell & Xxxx LLP
000 Xxxxxx, Xxxxx 0000
Xxxxxxx, XX 00000
Attention: Xxxxx X. Xxxxxx
Tel: (000) 000-0000
Fax: (000) 000-0000
and if to a Holder, to such address as shall be designated by such Holder in
writing to the Company.
(d) Assignment. Upon the transfer of any Debentures, Warrants
or Registrable Securities by a Holder, the rights of such Holder hereunder with
respect to such securities so transferred shall be assigned automatically to the
transferee thereof, and such transferee shall thereupon be deemed to be a
"Holder" for purposes of this Agreement, as long as: (i) the Company is, within
a reasonable period of time following such transfer, furnished with written
notice of the name and address of such transferee, (ii) the transferee agrees in
writing with the Company to be bound by all of the provisions hereof, and (iii)
such transfer is made in accordance with the applicable requirements of the
Securities Purchase Agreement; provided, however, that the registration rights
granted in this Agreement shall not be transferred to any person or entity that
receives any Debentures, Warrants or Registrable Securities in a public
transaction pursuant to an effective registration statement under the Securities
Act or pursuant to Rule 144.
(e) Counterparts. This Agreement may be executed in
counterparts, each of which shall be deemed an original, and all of which
together shall be deemed one and the same instrument. This Agreement, once
executed by a party, may be delivered to any other party hereto by facsimile
transmission.
(f) Governing Law. This Agreement shall be governed by and
construed in accordance with the laws of the State of New York applicable to
contracts made and to be performed entirely within the State of New York.
(g) Holder of Record. A person is deemed to be a Holder
whenever such person owns or is deemed to own of record such Registrable
Securities. If the Company receives conflicting instructions, notices or
elections from two or more persons with respect to the same Registrable
Securities, the Company shall act upon the basis of instructions, notice or
election received from the record owner of such Registrable Securities.
(h) Entire Agreement. This Agreement, the Securities Purchase
Agreement, the Debentures, the Warrants, and the other Transaction Documents
constitute the entire agreement among the parties hereto with respect to the
subject matter hereof and thereof. There are no
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restrictions, promises, warranties or undertakings, other than those set forth
or referred to herein and therein. This Agreement, the Securities Purchase
Agreement, the Debentures, the Warrants, and the other Transaction Documents
supersede all prior agreements and understandings among the parties hereto with
respect to the subject matter hereof and thereof.
(i) Headings. The headings in this Agreement are for
convenience of reference only and shall not limit or otherwise affect the
meaning hereof.
(j) Third Party Beneficiaries. This Agreement is intended for
the benefit of the parties hereto and their respective permitted successors and
assigns, and is not for the benefit of, nor may any provision hereof be enforced
by, any other person.
[Signature Pages to Follow]
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IN WITNESS WHEREOF, the undersigned have executed this Agreement as of
the date first-above written.
OMNI ENERGY SERVICES CORP.
By: /s/ Xxxxx Xxxx
-------------------------------
Xxxxx Xxxx
Chief Financial Officer
PROVIDENT PREMIER MASTER FUND LTD.
By: /s/ Xxxxxx Xxxxxxx
-------------------------------
Xxxxxx Xxxxxxx
Attorney-in-Fact
PORTSIDE GROWTH AND OPPORTUNITY FUND
By: /s/ Xxxx Xxxxx
-------------------------------
Name: Xxxx Xxxxx
Title: Authorized Signatory
MANCHESTER SECURITIES CORP.
By: /s/ Xxxx Xxxxxx
-------------------------------
Xxxx Xxxxxx
President
