EXHIBIT 4(3)
REGISTRATION RIGHTS AGREEMENT
December 19, 1996
Caledonia Industrial & Services Limited
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Dear Sirs:
This will confirm that, in connection with the Master Agreement, made on
December 12, 1996 (the "Master Agreement"), among Offshore Logistics, Inc., a
Delaware corporation (the "Company"), Caledonia Industrial & Services Limited
(the "Purchaser") and the other parties named therein, and the issuance to the
Purchaser pursuant to the Master Agreement of (i) an aggregate 1,300,000 shares
(the "Common Shares") of Common Stock, $.01 par value, of the Company and (ii)
an aggregate $ 7,500,000 principal amount of Notes (as defined herein),
convertible into shares of Common Stock of the Company, and as an inducement to
the Purchaser to consummate the transactions contemplated by the Master
Agreement, the Company hereby covenants and agrees with the Purchaser and with
each subsequent holder of Restricted Securities (as such term is defined
herein), as follows:
1. Certain Definitions. As used herein, the following terms shall have the
following respective meanings:
"Commission" shall mean the Securities and Exchange Commission, or any
other federal agency at the time administering the Securities Act.
"Common Stock" shall mean the Common Stock, $.01 par value, of the
Company, as constituted as of the date of this Agreement, subject to
adjustment pursuant to the provisions of Section 10 hereof.
"Conversion Shares" shall mean shares of Common Stock issued upon
conversion of the Notes.
"Exchange Act" shall mean the Securities Exchange Act of 1934 or any
similar federal statute, and the rules and regulations of the Commission
thereunder, all as the same shall be in effect at the time.
"Notes" shall mean the Company's 6% Convertible Subordinated Notes due
2003. to be issued pursuant to the Indenture, dated as of December 15, 1996
(the "Indenture"), between the Company and Fleet National Bank, as Trustee,
as amended and supplemented from time to time.
"Other Registration Rights Agreement" shall mean the Registration Rights
Agreement, dated as of December 17, 1996, by and among the Company and
▇▇▇▇▇▇▇▇▇ & Company, Inc., ▇▇▇▇▇▇▇ & Company International and ▇▇▇▇▇▇▇ Rice
& Company L.L.C.
"Permitted Registrations" shall mean registrations under the Securities
Act of securities of the Company for sale pursuant to registration
statements on Form S-4 or Form S-8 or another form not available for
registering the Restricted Securities for sale to the public.
"Registration Expenses" shall mean the expenses so described in Section 8
hereof.
"Restricted Securities" shall mean (i) any Common Shares, Conversion
Shares and Rights Shares (a) the certificates for which (and each
certificate issued upon exchange, adjustment or transfer thereof) (A) in
the case of Common Shares, bear the legend set forth in Section 1(K) of
that certain letter agreement, dated December 19, 1996 (the "Supplemental
Agreement"), between the Company and the Purchaser supplementing the Master
Agreement, (B) in the case of Conversion Shares bear the Regulation S
Legend (as such term is defined in the Indenture) or (C) in the case of
Rights Shares, bear the legend set forth in Section 2 hereof or (b) in any
such case, the sale, transfer or other disposition of which is restricted
under Rule 144 (or any successor regulation) under the Securities Act and
(ii) those Notes (and any notes issued upon exchange, adjustment or
transfer thereof) (a) which bear the Regulation S Legend or (b) the sale,
transfer or other disposition of which is restricted under Rule 144 (or any
successor regulation) under the Securities Act provided, however, that the
term Restricted Securities shall not include Conversion Shares and Notes
which are then covered by a registration statement that was filed by the
Company pursuant to the Other Registration Rights Agreement, that was
declared effective by the Commission under the Securities Act and that then
continues to be effective under the Securities Act for the period and on
the terms provided for under the Other Registration Rights Agreement.
"Securities Act" shall mean the Securities Act of 1933 or any similar
federal statute, and the rules and regula-
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tions of the Commission thereunder, all as the same shall be in effect at
the time.
"Rights" shall have the meaning given to it in the Rights Agreement,
dated as of February 29, 1996, between the Company and ▇▇▇▇▇ ▇▇▇▇▇▇
Shareholders Services, L.L.C.
"Rights Shares" shall mean the shares of Common Stock issuable under
certain circumstances in exchange for any Rights that may be issued from
time to time in respect of the Common Shares or the Conversion Shares.
"Selling Expenses" shall mean the expenses so described in Section 8
hereof.
2. Restrictive Legend for Rights Shares. Each certificate representing the
Rights Shares, and each certificate issued upon exchange, adjustment or transfer
thereof, other than in a public sale or as otherwise permitted by the last
paragraph of Section 3 hereof, shall be stamped or otherwise imprinted with a
legend substantially in the following form:
"THE SHARES EVIDENCED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER
THE SECURITIES ACT OF 1933, AND MAY NOT BE SOLD, TRANSFERRED OR
OTHERWISE DISPOSED OF UNLESS THEY HAVE BEEN REGISTERED UNDER THAT ACT
OR AN EXEMPTION FROM REGISTRATION IS AVAILABLE."
3. Notice of Proposed Transfer. Prior to any proposed transfer of any
Restricted Securities constituting Rights Shares (other than under the
circumstances described in Sections 4, 5 or 6 hereof), the holder thereof shall
give written notice to the Company of its intention to effect such transfer.
Each such notice shall describe the manner of the proposed transfer and, if
requested by the Company, shall be accompanied by an opinion of counsel
reasonably satisfactory to the Company (it being agreed that Reboul, MacMurray,
▇▇▇▇▇▇, ▇▇▇▇▇▇▇ & Kristol shall be satisfactory) to the effect that the proposed
transfer of such Restricted Securities may be effected without registration
under the Securities Act, whereupon the holder of such Restricted Securities
shall be entitled to transfer such Restricted Securities in accordance with the
terms of its notice. Each certificate for such Restricted Securities
transferred as above provided shall bear the legend set forth in Section 2
hereof unless (i) such transfer is in accordance with the provisions of Rule 144
(or any other rule permitting public sale without registration under the
Securities Act) or (ii) the opinion of counsel referred to above is to the
further effect that the transferee and any subsequent transferee (other than an
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affiliate of the Company) would be entitled to transfer such securities in a
public sale without registration under the Securities Act. The foregoing
restrictions on transferability of Restricted Securities constituting Rights
Shares shall terminate as to any particular shares of such Restricted Securities
when such shares shall have been effectively registered under the Securities Act
and sold or otherwise disposed of in accordance with the intended method of
disposition by the seller or sellers thereof set forth in the registration
statement concerning such shares. Whenever a holder of Restricted Securities
constituting Rights Shares is able to demonstrate to the Company (and its
counsel) that the provisions of Rule 144(k) of the Securities Act are available
to such holder without limitation, or that such Restricted Securities is
otherwise freely transferable without registration under the Securities Act,
such holder of shall be entitled to receive from the Company, without expense, a
new certificate such Restricted Securities not bearing the restrictive legend.
Matters pertaining to the transfer of Restricted Securities constituting
Common Shares, Conversion Shares and Notes (other than under the circumstances
described in Sections 4, 5 or 6 hereof) shall be governed, to the extent
provided for therein, by the applicable provisions of the Supplemental
Agreement, in the case of Common Shares, and the Indenture, in the case of the
Conversion Shares and the Notes.
4. Required Registration.
(a) At any time that the Company is not entitled to use Form S-3, the
holder or holders of Restricted Securities constituting at least 25% of the
Restricted Securities outstanding at such time (the "Original Requesting
Holders") may request the Company to register under the Securities Act all or
any portion of the Restricted Securities held by such requesting holder or
holders for sale in the manner specified in such notice; provided, however, that
(i) such portion of the Restricted Securities held by such requesting holder or
holders for which registration is requested shall not be less than the greater
of (x) 25% of all the then outstanding Restricted Securities and (y) an amount
which exceeds amounts which can be sold in accordance with the volume limitation
provisions of Rule 144 (e) under the Securities Act applicable to such
requesting holder or holders and (ii) the only securities which the Company
shall be required to register pursuant hereto shall be shares of Common Stock
and Notes.
(b) Promptly following receipt of any notice under this Section 4, the
Company shall immediately give written notice to any holders of Restricted
Securities from whom
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notice has not been received and shall use its best efforts to register under
the Securities Act, for public sale in accordance with the method of disposition
specified in such notice from the Original Requesting Holders (and in any
notices received from other such holders of Restricted Securities within 20 days
after their receipt of such notice from the Company) provided, however, that if
the proposed method of disposition specified by the requesting holders shall be
an underwritten public offering, the number of shares or principal amount, as
the case may be, of Restricted Securities to be included in such an offering may
be reduced, first, pro rata among any holders of Restricted Securities
requesting registration other than the Original Requesting Holders based upon
the number of shares of Common Stock or principal amount of Notes requested to
be registered by such holders, if and to the extent that the managing
underwriter shall be of the opinion that the inclusion of Restricted Securities
held by such other holders would adversely affect the marketing of the
Restricted Securities to be sold by the Original Requesting Holders (it being
understood that such number of shares or such principal amount of Restricted
Securities shall not be reduced if any shares of Common Stock or any Notes are
to be included in such underwriting for the account of any person other than the
Original Requesting Holders) and second, if the managing underwriter deems such
reduction to be insufficient, pro rata among the Original Requesting Holders
based upon the number of shares or principal amount of Restricted Securities so
requested to be registered by them (it being understood that such number of
shares or principal amount of Restricted Securities shall not be reduced if any
shares of Common Stock or Notes are to be included in such underwriting for the
account of any person other than the holders of Restricted Securities); and
provided, further, however that if (i) in the good faith judgment of a majority
of the members of the Board of Directors of the Company, such registration would
be materially detrimental to the business of the Company or would materially
interfere with preexisting contractual obligations to which the Company is then
subject or financing arrangements or other material transactions involving the
Company or any of its subsidiaries that are pending or are under active
consideration by the Company at the time any notice under this Section is given,
and the Board of Directors of the Company concludes, as a result, that it is
essential to defer the filing of such registration statement at such time, and
(ii) the Company shall furnish to such requesting holders a certificate, dated
no more than ten days after such notice of required registration is given,
signed by the President of the Company to the effect set forth in the preceding
clause (i), then the Company shall have the right,
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to defer such filing, but only so long as is necessary in order to preclude
adverse impact upon the business of the Company or such preexisting contractual
obligations, such financing or other pending transaction, and in any event for a
period of not more than one hundred eighty (180) days after such notice of
required registration is given. Except for Permitted Registrations, the Company
will not effect any other registration of its Common Stock or Notes, whether for
its own account or that of other holders, from the date of furnishing such
certificate until the end of such deferral period. If such method of disposition
shall be an underwritten public offering, the Company may designate the managing
underwriter of such offering, subject to the approval of the selling holders of
a majority of the Restricted Securities (such majority to be determined on the
basis of the number of shares of Common Stock and the principal amount of Notes
included in the offering, which approval shall not be unreasonably withheld.
Notwithstanding anything to the contrary contained herein, the obligation of the
Company under this Section 4 shall be deemed satisfied only when a registration
statement covering all shares and all principal amounts of Restricted Securities
specified in notices received as aforesaid, for sale in accordance with the
method of disposition specified by the requesting holder, shall have become
effective and, if such method of disposition is a firm commitment underwritten
public offering, all such shares and all such principal amounts shall have been
sold pursuant thereto.
(c) The Company and other holders of Common Stock and Notes of the Company
shall be entitled to include in any registration statement referred to in this
Section 4, for sale in accordance with the method of disposition specified by
the requesting holders, shares of Common Stock and principal amounts of Notes to
be sold by the Company or such other holders for their own account, except to
the extent that, in the opinion of the managing underwriter (if such method of
disposition shall be an underwritten public offering), such inclusion would
adversely affect the marketing of the Restricted Securities to be sold. Except
as provided in this paragraph (c), and except for Permitted Registrations, the
Company will not effect any other registration of its Common Stock and Notes,
whether for its own account or that of other holders, from the date of receipt
of a notice from requesting holders pursuant to this Section 4 until one hundred
and twenty (120) days after the effective date of the registration contemplated
thereby.
(d) Notwithstanding anything to the contrary contained herein, the Company
shall be obligated to register Restricted Securities pursuant to this Section 4
at the
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request of the holders Restricted Securities, on three occasions only.
5. Form S-3 Registration.
(a) If the Company shall receive from any holder or holders of Restricted
Securities a written notice or notices requesting that the Company effect a
registration on Form S-3 (which request may also specify that the Restricted
Securities is to be offered on a delayed or continuous basis by means of a
"shelf" registration pursuant to Rule 415 under the Securities Act) and any
related qualification or compliance with respect to Restricted Securities owned
by such holder or holders, provided that the Company has not effected a
registration under this Section 5 at the request of any holder or holders of
Restricted Securities within the three months immediately preceding the date of
such request, the Company will:
(i) promptly give written notice of the proposed registration, and any
related qualification or compliance, to all other holders of Restricted
Securities; and
(ii) as soon as practicable, effect such registration (including, without
limitation, the execution of an undertaking to file post-effective
amendments, appropriate qualifications under applicable blue sky or other
state securities laws and appropriate compliance with applicable
regulations issued under the Securities Act and any other government
requirements or regulations) as may be so requested and as would permit or
facilitate the sale and distribution of all or such portion of such
holder's or holders' Restricted Securities as are specified in such
request, together with all or such portion of the Restricted Securities of
any holder or holders joining in such request as are specified in a written
request given within thirty (30) days after receipt of such written notice
from the Company; provided, however, that if (i) in the good faith judgment
of a majority of the members of the Board of Directors of the Company, such
registration would be materially detrimental to the business of the Company
or would materially interfere with preexisting contractual obligations to
which the Company is then subject or financing arrangements or other
material transactions involving the Company or any of its subsidiaries that
are pending or are under active consideration by the Company at the time
any notice under this Section is given, and the Board of Directors of the
Company concludes, as a result, that it is essential to defer the filing of
such registration statement at such time, and (ii) the Company shall
furnish to such requesting holders a certificate, dated no more than ten
days after such notice of required registration is given, signed by the
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President of the Company to the effect set forth in the preceding clause
(i), then the Company shall have the right to defer such filing, but only
so long as is necessary in order to preclude the adverse impact upon the
business of the Company or such preexisting contractual obligations,
financing or other pending transaction, and in any event for a period of
not more than one hundred eighty (180) days after such notice of required
registration is given. Except for Permitted Registrations, the Company
will not effect any other registration of its Common Stock and Notes,
whether for its own account or that of other holders, from the date of
furnishing such certificate until the end of such deferral period. Subject
to the foregoing provisions of this paragraph (a) and as set forth in
paragraphs (b) and (c) below, the Company shall file a registration
statement covering the Restricted Securities so requested to be registered
as soon as practicable after receipt of the request or requests of the
holders of the Restricted Securities. Except for Permitted Registrations,
the Company will not effect any other registration of its Common Stock and
Notes, whether for its own account or that of other holders, from the date
of receipt of a notice from requesting holders pursuant to this Section 5
until thirty (30) days after the effective date of the registration
contemplated thereby.
(b) The Company shall not be obligated to register Restricted Securities
pursuant to this Section 5 if the Company is not entitled to use Form S-3.
(c) The only securities which the Company shall be required to register
pursuant hereto shall be shares of Common Stock and Notes.
(d) Registrations effected pursuant to this Section 5 shall not be
counted as requests for registration pursuant to Section 4.
6. Incidental Registration. If the Company at any time (other than
pursuant to Sections 4 or 5 hereof) proposes to register any of its Common Stock
or Notes under the Securities Act for sale to the public, whether for its own
account or for the account of other security holders ("Requesting Parties") or
both (except in connection with a Permitted Registration), it will give written
notice at such time to all holders of outstanding Restricted Securities of its
intention to do so. Upon the written request of any such holder, given within
thirty (30) days after receipt of any such notice by the Company, to register
any of its Restricted Securities (which request shall state the intended method
of disposition thereof), the Company will use its best efforts to cause the
Restricted Securities as to which registration shall have been so requested to
be included
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in the securities to be covered by the registration statement proposed to be
filed by the Company, all to the extent requisite to permit the sale or other
disposition by the holder (in accordance with its written request) of such
Restricted Securities so registered; provided, however, that nothing herein
shall prevent the Company from abandoning or delaying such registration at any
time. In the event that any registration pursuant to this Section 6 shall be, in
whole or in part, an underwritten public offering of Common Stock, any request
by a holder pursuant to this Section 6 to register Restricted Securities shall
specify that either (i) such Restricted Securities is to be included in the
underwriting on the same terms and conditions as the shares of Common Stock or
Notes otherwise being sold through underwriters under such registration or (ii)
such Restricted Securities is to be sold in the open market without any
underwriting, on terms and conditions comparable to those normally applicable to
offerings of common stock in reasonably similar circumstances. If and to the
extent that the managing underwriter shall be of the opinion that such inclusion
would adversely affect the marketing of the securities to be sold by the Company
or by the Requesting Parties, the number of shares and the principal amount of
Restricted Securities to be included in such an underwriting may be reduced,
first, pro rata among any persons requesting registration other than the
Requesting Parties, the Company and the holders of Restricted Securities, based
upon the number of shares of Common Stock and principal amount of Notes
requested to be registered by such holders, and second, if the managing
underwriter deems such reduction to be insufficient, pro rata among the
requesting holders of Restricted Securities based upon the number of shares and
principal amount of Restricted Securities so requested to be registered; it
being understood that such number of shares and principal amount of Restricted
Securities shall not be reduced if any shares or Notes are to be included in
such underwriting for the account of any person other than the Requesting
Parties, the Company and the holders of Restricted Securities.
Notwithstanding anything to the contrary contained in this Section 6, in
the event that there is a firm commitment underwritten public offering of
securities of the Company pursuant to a registration covering Restricted
Securities and a holder of Restricted Securities does not elect to sell his
Restricted Securities to the underwriters of the Company's securities in
connection with such offering, such holder shall refrain from selling such
Restricted Securities so registered pursuant to this Section 6 during the period
of distribution of the Company's securities by such underwriters and the period
in which the underwriting syndicate participates in the after market; provided,
however, that such holder shall, in any event, be entitled to sell its
Restricted Securities commencing on the
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90th day after the date of the pricing of the securities issued under such
registration statement.
7. Registration Procedures. If and whenever the Company is required by the
provisions of Section 4, 5 or 6 hereof to use its best efforts to effect the
registration of any of the Restricted Securities under the Securities Act, the
Company will, as expeditiously as possible:
(a) prepare (and afford counsel for the selling holders reasonable
opportunity to review and comment thereon) and file with the Commission a
registration statement (which, in the case of an underwritten public offering
pursuant to Section 4 hereof, shall be on Form S-1 or another form of general
applicability satisfactory to the managing underwriter selected as therein
provided) with respect to such securities and use its reasonable best efforts to
cause such registration statement to become and remain effective for the period
of the distribution contemplated thereby (determined as hereinafter provided);
(b) prepare (and afford counsel for the selling holders reasonable
opportunity to review and comment thereon) and file with the Commission such
amendments and supplements to such registration statement and the prospectus
used in connection therewith as may be necessary to keep such registration
statement effective for the period specified in paragraph (a) above and as
comply with the provisions of the Securities Act with respect to the disposition
of all Restricted Securities covered by such registration statement in
accordance with the sellers' intended method of disposition set forth in such
registration statement for such period;
(c) furnish to each seller and to each underwriter such number of copies of
the registration statement and the prospectus included therein (including each
preliminary prospectus) as such persons may reasonably request in order to
facilitate the public sale or other disposition of the Restricted Securities as
the case may be, covered by such registration statement;
(d) use its reasonable best efforts to register or qualify the Restricted
Securities covered by such registration statement under the securities or blue
sky laws of such jurisdictions as the sellers of Restricted Securities or, in
the case of an underwritten public offering, the managing underwriter, shall
reasonably request (provided that the Company will not be required to (i)
qualify generally to do business in any jurisdiction where it would not
otherwise be required to so qualify but for
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this paragraph (d), (ii) subject itself to taxation in any such jurisdiction or
(iii) consent to general service of process in any jurisdiction);
(e) immediately notify each seller under such registration statement and
each underwriter, at any time when a prospectus relating thereto is required to
be delivered under the Securities Act, of the happening of any event as a result
of which the prospectus contained 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 not misleading in the light of the circumstances then existing;
(f) use its reasonable best efforts (if the offering is underwritten) to
furnish, at the request of any seller, on the date that Restricted Securities is
delivered to the underwriters for sale pursuant to such registration: (i) an
opinion of counsel representing the Company for the purposes of such
registration, addressed to the underwriters and to such seller and dated such
date, stating that such registration statement has become effective under the
Securities Act and that (A) to the best knowledge of such counsel, no stop order
suspending the effectiveness thereof has been issued and no proceedings for that
purpose have been instituted or are pending or contemplated under the Securities
Act, (B) the registration statement, the related prospectus, and each amendment
or supplement thereof, comply as to form in all material respects with the
requirements of the Securities Act and the applicable rules and regulations of
the Commission thereunder (except that such counsel need express no opinion as
to financial statements, the notes thereto, and the financial schedules and
other financial and statistical data contained therein) and (C) to such other
effects as may reasonably be requested by counsel for the underwriters or by
such seller or its counsel, and (ii) a letter dated such date from the
independent public accountants retained by the Company, addressed to the
underwriters, stating that they are independent public accountants within the
meaning of the Securities Act and that, in the opinion of such accountants, the
financial statements of the Company included in the registration statement or
the prospectus, or any amendment or supplement thereof, comply as to form in all
material respects with the applicable accounting requirements of the Securities
Act, and such letter shall additionally cover such other financial matters
(including information as to the period ending no more than five business days
prior to the date of such letter) with respect to the registration in respect of
which
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such letter is being given as such underwriters or seller may reasonably
request; and
(g) make available for inspection by each seller, any underwriter
participating in any distribution pursuant to such registration statement, and
any attorney, accountant or other agent retained by such seller or underwriter,
all financial and other records, pertinent corporate documents and properties of
the Company, and cause the Company's officers, directors and employees to supply
all information reasonably requested by any such seller, underwriter, attorney,
accountant or agent in connection with such registration statement and permit
such seller, attorney, accountant or agent to participate in the preparation of
such registration statement.
For purposes of paragraphs (a) and (b) above and of Section 4(c) hereof, the
period of distribution of Restricted Securities in a firm commitment
underwritten public offering shall be deemed to extend until each underwriter
has completed the distribution of all securities purchased by it, and the period
of distribution of Restricted Securities in any other registration shall be
deemed to extend until the earlier of the sale of all Restricted Securities
covered thereby or six months after the effective date thereof.
In connection with each registration hereunder, the selling holders of
Restricted Securities will furnish to the Company in writing such information
with respect to themselves and the proposed distribution by them as shall be
reasonably necessary in order to assure compliance with federal and applicable
state securities laws.
In connection with each registration pursuant to Sections 4, 5 and 6 hereof
covering an underwritten public offering, the Company agrees to enter into a
written agreement with the managing underwriter selected in the manner herein
provided in such form and containing such provisions as are customary in the
securities business for such an arrangement between major underwriters and
companies of the Company's size and investment stature, provided, however, that
such agreement shall not contain any such provision applicable to the Company
which is inconsistent with the provisions hereof and provided, further, however,
that the time and place of the closing under said agreement shall be as mutually
agreed upon among the Company, such managing underwriter and the selling
holders of Restricted Securities.
8. Expenses. All expenses incurred by the Company in complying with
Sections 4, 5 and 6 hereof, including without limitation all registration and
filing fees, printing expenses,
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fees and disbursements of counsel and independent public accountants for the
Company, fees of the National Association of Securities Dealers, Inc., transfer
taxes, fees of transfer agents and registrars and fees and expenses of one
counsel for the sellers of Restricted Securities, but excluding any Selling
Expenses, are herein called "Registration Expenses". All underwriting discounts
and selling commissions applicable to the sale of Restricted Securities are
herein called "Selling Expenses".
The Company will pay all Registration Expenses in connection with each
registration statement filed pursuant to Section 4, 5 or 6 hereof. All Selling
Expenses in connection with any registration statement filed pursuant to Section
4, 5 or 6 hereof shall be borne by the participating sellers in proportion to
the number of shares sold by each, or by such persons other than the Company
(except to the extent the Company shall be a seller) as they may agree.
9. Indemnification. In the event of a registration of any of the
Restricted Securities under the Securities Act pursuant to Section 4, 5 or 6
hereof, the Company will indemnify and hold harmless each seller of such
Restricted Securities thereunder and each underwriter of Restricted Securities
thereunder and each other person, if any, who controls such seller or
underwriter within the meaning of the Securities Act, against any losses,
claims, damages or liabilities, joint or several, to which such seller or
underwriter or controlling person may become subject under the Securities Act or
otherwise, insofar as such losses, claims, damages or liabilities (or actions in
respect thereof) 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 such Restricted Securities was registered under the Securities Act
pursuant to Section 4, 5 or 6, any preliminary prospectus or final prospectus
contained therein, or any amendment or supplement thereof, or arise out of or
are based upon the omission or alleged omission to state therein a material fact
required to be stated therein or necessary to make the statements therein not
misleading, and will reimburse each such seller, each such underwriter and each
such controlling person for any legal or other expenses reasonably incurred by
them in connection with investigating or defending any such loss, claim, damage,
liability or action; provided, however, that the Company will not be liable in
any such case if and to the extent that any such loss, claim, damage or
liability arises out of or is based upon an untrue statement or alleged untrue
statement or omission or alleged omission so made in conformity with information
furnished by such seller, such underwriter or such controlling person in writing
specifically for use in such registration statement or prospectus.
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In the event of a registration of any of the Restricted Securities under
the Securities Act pursuant to Section 4, 5 or 6 hereof, each seller of such
Restricted Securities thereunder, severally and not jointly, will indemnify and
hold harmless the Company and each person, if any, who controls the Company
within the meaning of the Securities Act, each officer of the Company who signs
the registration statement, each director of the Company, each underwriter and
each person who controls any underwriter within the meaning of the Securities
Act, against all losses, claims, damages or liabilities, joint or several, to
which the Company or such officer or director or underwriter or controlling
person may become subject under the Securities Act or otherwise, insofar as such
losses, claims, damages or liabilities (or actions in respect thereof) arise out
of or are based upon any untrue statement or alleged untrue statement of any
material fact contained in the registration statement under which such
Restricted Securities was registered under the Securities Act pursuant to
Section 4, 5 or 6, any preliminary prospectus or final prospectus contained
therein, or any amendment or supplement thereof, or arise out of or are based
upon the omission or alleged omission to state therein a material fact required
to be stated therein or necessary to make the statements therein not misleading,
and will reimburse the Company and each such officer, director, underwriter and
controlling person for any legal or other expenses reasonably incurred by them
in connection with investigating or defending any such loss, claim, damage,
liability or action; provided, however, that such seller will be liable
hereunder in any such case if and only to the extent that any such loss, claim,
damage or liability arises out of or is based upon an untrue statement or
alleged untrue statement or omission or alleged omission made in reliance upon
and in conformity with information pertaining to such seller, as such, furnished
in writing to the Company by such seller specifically for use in such
registration statement or prospectus; provided, further, however, that the
liability of each seller hereunder shall be limited to the proceeds (net of
underwriting discounts and commissions) received by such seller from the sale of
Restricted Securities covered by such registration statement.
Promptly after receipt by an indemnified party hereunder of notice of the
commencement of any action, such indemnified party shall, if a claim in respect
thereof is to be made against the indemnifying party hereunder, notify the
indemnifying party in writing thereof, but the omission so to notify the
indemnifying party shall not relieve it from any liability which it may have to
any indemnified party other than under this Section 9. In case any such action
shall be brought against any indemnified party and it shall notify the
indemnifying party of the commencement thereof, the indemnifying party shall be
entitled to participate in and, to the extent it shall wish, to
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assume and undertake the defense thereof with counsel satisfactory to such
indemnified party, and, after notice from the indemnifying party to such
indemnified party of its election so to assume and undertake the defense
thereof, the indemnifying party shall not be liable to such indemnified party
under this Section 9 for any legal expenses subsequently incurred by such
indemnified party in connection with the defense thereof; provided, however,
that, if the defendants in any such action include both the indemnified party
and the indemnifying party and the indemnified party shall have reasonably
concluded that there may be reasonable defenses available to it which are
different from or additional to those available to the indemnifying party, or if
the interests of the indemnified party reasonably may be deemed to conflict with
the interests of the indemnifying party, the indemnified party shall have the
right to select a separate counsel and to assume such legal defenses and
otherwise to participate in the defense of such action, with the reasonable
expenses and fees of such separate counsel and other expenses related to such
participation to be reimbursed by the indemnifying party as incurred.
Notwithstanding the foregoing, any indemnified party shall have the right
to retain its own counsel in any such action, but the fees and disbursements of
such counsel shall be at the expense of such indemnified party unless (i) the
indemnifying party shall have failed to retain counsel for the indemnified
person as aforesaid or (ii) the indemnifying party and such indemnified party
shall have mutually agreed to the retention of such counsel. It is understood
that the indemnifying party shall not, in connection with any action or related
actions in the same jurisdiction, be liable for the fees and disbursements of
more than one separate firm qualified in such jurisdiction to act as counsel for
the indemnified party. The indemnifying party shall not be liable for any
settlement of any proceeding effected without its written consent, but if
settled with such consent or if there be a final judgment for the plaintiff, the
indemnifying party agrees to indemnify the indemnified party from and against
any loss or liability by reason of such settlement or judgment.
If the indemnification provided for in the first two paragraphs of this
Section 9 is unavailable or insufficient to hold harmless an indemnified party
under such paragraphs in respect of any losses, claims, damages or liabilities
or actions in respect thereof referred to therein, then each indemnifying party
shall in lieu of indemnifying such indemnified party contribute to the amount
paid or payable by such indemnified party as a result of such losses, claims,
damages, liabilities or actions in such proportion as appropriate to reflect the
relative fault of the Company, on the one hand, and the underwriters and the
sellers of such Restricted Securities, on the other, in
15
connection with the statements or omissions which resulted in such losses,
claims, damages, liabilities or actions as well as any other relevant equitable
considerations, including the failure to give any notice under the third
paragraph of this Section 9. The relative fault shall be determined by reference
to, among other things, whether the untrue or alleged untrue statement of a
material fact relates to information supplied by the Company, on the one hand,
or the underwriters and the sellers of such Restricted Securities, on the other,
and to the parties' relative intent, knowledge, access to information and
opportunity to correct or prevent such statement or omission. The Company and
you agree that it would not be just and equitable if contributions pursuant to
this paragraph were determined by pro rata allocation (even if all of the
sellers of such Restricted Securities or by any other method of allocation which
did not take account of the equitable considerations referred to above in this
paragraph. The amount paid or payable by an indemnified party as a result of the
losses, claims, damages, liabilities or action in respect thereof, referred to
above in this paragraph, shall be deemed to include any legal or other expenses
reasonably incurred by such indemnified party in connection with investigating
or defending any such action or claim. Notwithstanding the provisions of this
paragraph, the sellers of such Restricted Securities shall not be required to
contribute any amount in excess of the amount, if any, by which the total price
at which the Common Stock sold by each of them was offered to the public exceeds
the amount of any damages which they would have otherwise been required to pay
by reason of such untrue or alleged untrue statement or omission. No person
guilty of fraudulent misrepresentations (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.
The indemnification of underwriters provided for in this Section 9 shall be
on such other terms and conditions as are at the time customary and reasonably
required by such underwriters. In that event the indemnification of the sellers
of Restricted Securities in such underwriting shall at the sellers' request be
modified to conform to such terms and conditions.
10. Changes in Common Stock and/or Notes. If, and as often as, there are
any changes in the Common Stock and/or Notes by way of stock split, stock
dividend, combination or reclassification, or through merger, consolidation,
reorganization or recapitalization, or by any other means, appropriate
adjustment shall be made in the provisions hereof, as may be required, so that
the rights and privileges granted hereby shall continue with respect to the
Common Stock or Notes, as the case may be, as so changed.
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11. Representations and Warranties of the Company. The Company represents
and warrants to you as follows:
(a) The execution, delivery and performance of this Agreement by the
Company have been duly authorized by all requisite corporate action and will not
violate any provision of law, any order of any court or other agency of
government, the Certificate of Incorporation or By-laws of the Company, or any
provision of any indenture, agreement or other instrument to which it or any of
its properties or assets is bound, or conflict with, result in a breach of or
constitute (with due notice or lapse of time or both) a default under any such
indenture, agreement or other instrument, or result in the creation or
imposition of any lien, charge or encumbrance of any nature whatsoever upon any
of the properties or assets of the Company.
(b) This Agreement has been duly executed and delivered by the Company and
constitutes the legal, valid and binding obligation of the Company, enforceable
in accordance with its terms, subject to considerations of public policy in the
case of the indemnification provisions hereof.
11A. Representations and Warranties of the Purchaser. The Purchaser
represents and warrants to the Company as follows:
(c) The execution, delivery and performance of this Agreement by the
Purchaser have been duly authorized by all requisite corporate action and will
not violate any provision of law, any order of any court or other agency of
government, the charter and other organizational documents of the Purchaser, or
any provision of any indenture, agreement or other instrument to which it or any
of its properties or assets is bound, or conflict with, result in a breach of or
constitute (with due notice or lapse of time or both) a default under any such
indenture, agreement or other instrument, or result in the creation or
imposition of any lien, charge or encumbrance of any nature whatsoever upon any
of the properties or assets of the Purchaser.
(d) This Agreement has been duly executed and delivered by the Purchaser
and constitutes the legal, valid and binding obligation of the Purchaser,
enforceable in accordance with its terms, subject to considerations of public
policy in the case of the indemnification provisions hereof.
12. Reporting. The Company agrees with you as follows:
17
(a) The Company shall at all times make and keep public information
available, as those terms are understood and defined in Rule 144 under the
Securities Act.
(b) The Company shall file with the Commission in a timely manner all
reports and other documents as the Commission may prescribe under Section 13(a)
or 15(d) of the Exchange Act at any time that the Company is subject to such
reporting requirements of the Exchange Act.
(c) The Company shall furnish to each holder of Restricted Securities
forthwith upon request (i) a written statement by the Company as to its
compliance with the reporting requirements of Rule 144 (at any time that it is
subject to such reporting requirements), (ii) a written statement by the Company
as to its compliance with the reporting requirements of the Securities Act and
the Exchange Act (at any time that it is subject to such reporting requirements,
(iii) a copy of the most recent annual or quarterly report of the Company, and
(iv) such other reports and documents so filed as a holder may reasonably
request to avail itself of any rule or regulation of the Commission allowing a
holder of Restricted Securities to sell any such securities without
registration.
13. Miscellaneous.
(a) All covenants and agreements contained in this Agreement by or on
behalf of any of the parties hereto shall bind and inure to the benefit of the
respective successors and assigns of the parties hereto whether so expressed or
not. Without limiting the generality of the foregoing, the registration rights
conferred herein on the holders of Restricted Securities shall inure to the
benefit of any and all subsequent holders from time to time of the Restricted
Securities for so long as the certificates representing the Restricted
Securities or Founders Stock, as the case may be, shall bear the legend
specified in Section 2 hereof.
(b) All notices, requests, consents and other communications hereunder
shall be in writing and shall be mailed by first class registered mail, postage
prepaid, addressed as follows:
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if to the Company, to it at
Offshore Logistics, Inc.
▇▇▇ ▇▇▇ ▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Secretary
if to the Purchaser, to it at
Caledonia Industrial & Services Limited
▇▇▇▇▇▇ ▇▇▇▇▇
▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇ ▇▇▇
England
Attention: Secretary
if to any subsequent holder of Restricted Securities to such holder at such
address as may have been furnished to the Company in writing by such
holder;
or, in any case, at such other address or addresses as shall have been
furnished in writing to the Company (in the case of a holder of Restricted
Securities) or to the holders of Restricted Securities (in the case of the
Company).
(c) This Agreement shall be governed by and construed in accordance with
the laws of the State of Delaware.
(d) This Agreement constitutes the entire agreement of the parties with
respect to the subject matter hereof. This Agreement may not be modified or
amended except in writing signed by the Company and the holders of not less than
80% of the Restricted Securities then outstanding (based upon the both number of
shares of Common Stock and the principal amount of Notes), provided that no
modification or amendment shall deprive any holder of Restricted Securities of
any material right under this Agreement without such holder's consent.
(e) This Agreement may be executed in two or more counterparts, each of
which shall be deemed an original, but all of which together shall constitute
one and the same instrument.
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Please indicate your acceptance of the foregoing by signing and returning
the enclosed counterpart of this letter, whereupon this letter (herein sometimes
called "this Agreement") shall be a binding agreement between the Company and
you.
Very truly yours,
OFFSHORE LOGISTICS, INC.
By_____________________
Title:
AGREED TO AND ACCEPTED
as of the date first
above written.
CALEDONIA INDUSTRIAL & SERVICES
LIMITED
By_____________________
Title:
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