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COMMON STOCK REGISTRATION RIGHTS AGREEMENT
Dated as of December 15, 1999
by and among
HVIDE MARINE INCORPORATED,
and
BANKERS TRUST CORPORATION
and
GREAT AMERICAN LIFE INSURANCE COMPANY
GREAT AMERICAN INSURANCE COMPANY
NEW ENERGY CORP.
AMERICAN EMPIRE SURPLUS LINES INSURANCE COMPANY
STONEWALL INSURANCE COMPANY
WORLDWIDE INSURANCE COMPANY
AMERICAN NATIONAL FIRE INSURANCE COMPANY
as Purchasers
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TABLE OF CONTENTS
Page
1. Definitions...............................................1
2. Registration Rights.......................................5
3. Registration Procedures..................................11
4. Holdback Agreements......................................16
5. Indemnification and Contribution.........................17
6. Miscellaneous............................................21
(a) No Conflicting Agreements...........................21
(b) Amendments and Waivers..............................22
(c) Notices.............................................22
(d) Successors and Assigns..............................23
(e) Rules 144 and 144A..................................23
(f) Counterparts........................................23
(g) Headings............................................24
(h) Governing Law.......................................24
(i) Severability........................................24
(j) Entire Agreement....................................24
-30-
THIS COMMON STOCK REGISTRATION RIGHTS AGREEMENT (this
"Agreement") is made and entered into as of December 15, 1999, by and among
Hvide Marine Incorporated, a Delaware corporation (the "Company"), and Bankers
Trust Corporation and American Money Management Corporation (together, the
"Purchasers").
This Agreement is made pursuant to the Purchase Agreement,
dated as of December 15, 1999, among the Company, the guarantors named therein
and the Purchasers (the "Purchase Agreement"), relating to the sale by the
Company to the Purchasers of $95,000,000 in aggregate principal amount at
maturity of the 12 1/2% Senior Secured Notes due 2007 of the Company (the
"Notes"), along with Warrants (the "Warrants") to purchase shares of the
Company's common stock, par value $.01 per share (the "Common Stock") in an
amount equal to 5% of the Company's fully-diluted Common Stock. In order to
induce the Purchasers to enter into the Purchase Agreement, the Company has
agreed to provide to the Purchasers and their direct and indirect transferees
(the "Holders"), among other things, the registration rights for the Common
Stock set forth in this Agreement. The execution of this Agreement is a
condition to the obligations of the Purchasers to purchase the Notes under the
Purchase Agreement.
In consideration of the foregoing, the parties hereto agree as
follows:
1. Definitions. As used in this Agreement, the following
capitalized defined terms shall have the following meanings:
"Affiliate" of any specified Person means any other Person
which directly or indirectly through one or more intermediaries
controls, or is controlled by, or is under common control with, such
specified Person. For the purposes of this definition, "control"
(including, with correlative meanings, the terms "controlling,"
"controlled by" and "under common control with"), as used with respect
to any Person, means the possession, directly or indirectly, of the
power to direct or cause the direction of the management or policies of
such Person, whether through the ownership of voting securities, by
agreement or otherwise.
"Business Day" shall mean a day that is not a Legal Holiday.
"Common Stock" shall have the meaning specified in the
preamble.
"Company" shall have the meaning set forth in the preamble and
shall also include the Company's successors.
"Demand Registration" shall have the meaning set forth in
Section 2.1.
"Exchange Act" shall mean the Securities Exchange Act of 1934,
as amended from time to time.
"Holder" shall mean the Purchasers, for so long as the
Purchasers own any Common Stock, and each of their successors, assigns and
direct and indirect transferees who become registered owners of Common Stock.
"Included Shares" shall have the meaning set forth in Section
2.1(a).
"indemnified party" shall have the meaning set forth in
Section 5(c).
"indemnifying party" shall have the meaning set forth in
Section 5(c).
"Independent Financial Expert" shall mean any nationally
recognized investment banking firm reasonably acceptable to the Warrant Agent
(i) that does not (and whose directors, officers, employees and Affiliates do
not) have a direct or indirect material financial interest in the Company, (ii)
that has not been, and, at the time it is called upon to serve as an Independent
Financial Expert under this Agreement is not (and none of whose directors,
officers, employees or Affiliates is) a promoter, director or officer of the
Company, (iii) that has not been retained by the Company for any purpose, other
than to perform an equity valuation, within the preceding twelve months and (iv)
that, in the reasonable judgment of senior management of the Company (such
judgment certified to in an officers' certificate), is otherwise qualified to
serve as an independent financial advisor. Any such person may receive customary
compensation and indemnification by the Company for opinions or services it
provides as an Independent Financial Expert.
"Issue Date": The date on which the original securities were
sold to the Purchasers pursuant to the Purchase Agreement.
"Legal Holiday" shall mean a Saturday, a Sunday or a day on
which banking institutions in New York, New York are required or authorized by
law, regulation or executive order to remain closed.
"Notes" shall have the meaning set forth in the preamble.
"Person" shall mean an individual, corporation, partnership,
joint venture, association, joint stock company, trust, unincorporated
organization, or other legal entity.
"Piggy-Back Registration" shall have the meaning set forth in
Section 2.2.
"Prospectus" means a prospectus that meets the requirements of
Section 10 of the Securities Act.
"Purchase Agreement" shall have the meaning set forth in the
preamble.
"Purchasers" shall have the meaning set forth in the preamble.
"Registrable Securities" shall mean the shares of Common Stock
issuable upon exercise of the Warrants. As to any particular Registrable
Securities, such securities shall cease to be Registrable Securities when (i) a
Registration Statement with respect to such securities shall have been declared
effective under the Securities Act and such securities shall have been disposed
of pursuant to such Registration Statement, (ii) such securities can be sold
pursuant to Rule 144 (or any similar provision then in force, but not Rule 144A)
under the Securities Act or may be sold without being subject to the volume and
manner of sale restrictions contained therein, (iii) such securities shall have
been otherwise transferred by such Holder and new certificates for such
securities not bearing a legend restricting further transfer shall have been
delivered by the Company or its transfer agent, or (iv) such securities shall
have ceased to be outstanding.
"Registration Expenses" shall mean all expenses incident to
the Company's performance of or compliance with this Agreement, including,
without limitation, all SEC and stock exchange or National Association of
Securities Dealers, Inc. registration and filing fees and expenses, fees and
expenses of compliance with state securities or blue sky laws (including,
without limitation, reasonable fees and disbursements of one counsel for the
underwriters in connection with blue sky qualifications of the Registrable
Securities), printing expenses, fees and disbursements of counsel for the
Company and all independent certified public accountants (but not including any
underwriting discounts or commissions or transfer taxes, if any, attributable to
the sale of Registrable Securities by Holders of such Registrable Securities).
"Registration Statement" shall mean any registration statement
of the Company which covers any Registrable Securities pursuant to the
provisions of this Agreement, including the Prospectus, amendments and
supplements to such Registration Statement, including post-effective amendments,
all exhibits and all material incorporated by reference or deemed to be
incorporated by reference in such Registration Statement.
"Requisite Holder" shall mean a Holder who at the time of
exercising such Holder's Rights under Section 2.1 hereof shall beneficially own
the Requisite Shares.
"Requisite Shares" shall mean a number of Registrable
Securities equal to not less than 20% of the Registrable Securities held in the
aggregate by all Holders.
"Restricted Security" shall have the meaning set forth in Rule
144(a)(3) under the Securities Act.
"Rule 144" shall mean Rule 144 under the Securities Act, as
such Rule may be amended from time to time, or any similar rule (other than Rule
144A) or regulation hereafter adopted by the SEC providing for offers and sales
of securities made in compliance therewith resulting in offers and sales by
subsequent holders that are not Affiliates of an issuer of such securities being
free of the registration and prospectus delivery requirements of the Securities
Act.
"Rule 144A" shall mean Rule 144A under the Securities Act, as
such Rule may be amended from time to time, or any similar rule (other than Rule
144) or regulation hereafter adopted by the SEC providing for offers and sales
of securities made in compliance therewith resulting in offers and sales by
subsequent holders that are not affiliates of an issuer of such securities being
free of the registration and prospectus delivery requirements of the Securities
Act.
"SEC" shall mean the Securities and Exchange Commission.
"Securities Act" shall mean the Securities Act of 1933, as
amended from time to time.
"Selling Holder" shall mean a Holder who is selling
Registrable Securities in accordance with the provisions of Section 2.1 or 2.2
hereof.
"Warrants" shall have the meaning set forth in the preamble.
"Withdrawal Election" shall have the meaning set forth in
Section 2.3.
2. Registration Rights.
2.1. Demand Registration.
(a) Request for Registration. At any time, Holders owning,
individually or in the aggregate, at least the Requisite Shares may make a
written request for registration under the Securities Act of their Registrable
Securities (a "Demand Registration"). Any such request will specify the number
of Registrable Securities proposed to be sold and will also specify the intended
method of disposition thereof. Upon such request, the Company will prepare, file
and use its reasonable best efforts to cause to be effective within 120 days of
such request a Registration Statement in respect of all the Registrable
Securities. The Company shall give written notice of such registration request
within 5 Business Days after the receipt thereof to all other Holders. Within 10
Business Days after receipt of such notice, any Holder may request in writing
that Registrable Securities be included in such registration and the Company
shall include in the Demand Registration the Registrable Securities of any such
Selling Holder requested to be so included (the "Included Shares"). Each such
request by such other Selling Holders shall specify the number of Included
Shares proposed to be sold and the intended method of disposition thereof.
Subject to Section 2.1(b), in no event shall the Company be required to register
Registrable Securities pursuant to this Section 2.1 on more than a maximum of
two separate occasions.
(b) Notwithstanding anything herein to the contrary, the
Company shall not be required to honor a request for a Demand Registration if
such request is received by the Company less than 180 days following the
effective date of any previous registration statement relating to such
Registrable Securities filed in connection with a Demand Registration,
regardless of whether any holder of the Registrable Securities covered thereby
exercised its rights under this Agreement with respect to such registration. In
addition, the Company may postpone taking action with respect to a Demand
Registration for a reasonable period of time after receipt of the original
request (not exceeding 45 days) if, in the good faith opinion of the Company's
Board of Directors, effecting the registration would adversely affect a material
financing, acquisition, disposition of assets or stock, merger or other
comparable transaction or would require the Company to make public disclosure of
information the public disclosure of which would have a material adverse effect
upon the Company, provided that the Company shall not delay such action pursuant
to this sentence more than once in any 12 month period.
(c) Effective Registration. A registration will not be deemed
to have been effected as a Demand Registration unless it has been declared
effective by the SEC and the Company has complied in all material respects with
its obligations under this Agreement with respect thereto; provided that if,
after it has become effective, the offering of Registrable Securities pursuant
to such registration is or becomes the subject of any stop order, injunction or
other order or requirement of the SEC or any other governmental or
administrative agency, or if any court prevents or otherwise limits the sale of
Registrable Securities pursuant to the registration (for any reason other than
the act or omission of the Selling Holders), such registration will be deemed
not to have been effected. If (i) a registration requested pursuant to this
Section 2.1 is deemed not to have been effected or (ii) the registration
requested pursuant to this Section 2.1 does not remain effective for a period of
at least 90 days beyond the effective date thereof or until the earlier
consummation of the distribution by the Selling Holders of the Included Shares,
then the Company shall continue to be obligated to effect an additional
registration pursuant to this Section 2.1. The Selling Holders of Registrable
Securities shall be permitted to withdraw all or any part of the Included Shares
from a Demand Registration at any time prior to the effective date of such
Demand Registration. If at any time a Registration Statement is filed pursuant
to a Demand Registration, and subsequently a sufficient number of Included
Shares are withdrawn from the Demand Registration so that such Registration
Statement does not cover at least the Requisite Shares, the Selling Holders who
have not withdrawn their Included Shares shall have the opportunity to include
an additional number of Registrable Securities in the Demand Registration so
that such Registration Statement covers at least the Requisite Shares. If an
additional number of Registrable Securities is not so included so that such
Registration Statement does not cover at least the Requisite Shares, the Company
may withdraw the Registration Statement. In the event that a Registration
Statement has been filed and the Company withdraws the Registration Statement
solely due to the occurrence of the events specified in the prior two sentences,
such withdrawn Registration Statement will count as a Demand Registration;
otherwise such withdrawn Registration Statement will not count as a Demand
Registration and the Company shall continue to be obligated to effect a
registration pursuant to this Section 2.1.
(d) Priority in Demand Registrations Pursuant to Section 2.1.
If a Demand Registration pursuant to this Section 2.1 involves an underwritten
offering and the managing underwriter advises the Company in writing that, in
its opinion, the number of securities requested to be included in such
registration (including securities of the Company which are not Registrable
Securities) exceeds the number that can be sold in such offering, the Company
will include in such registration only the Registrable Securities requested by
the managing underwriter(s) to be included in such registration. In the event
that the number of Registrable Securities requested to be included in such
registration exceeds the number that, in the opinion of such managing
underwriter, can be sold, the number of such Registrable Securities to be
included in such registration shall be allocated (i) first, pro rata on the
basis of the number of shares of Registrable Securities requested to be included
in such Demand Registration (provided that any shares thereby allocated to any
such Holder that exceed such Holder's request shall be reallocated among the
remaining requesting Holders in like manner) and (ii) second, pro rata on the
basis of the number of other securities of the Company proposed to be included
in such Demand Registration, allocated among the holders thereof in accordance
with the priorities then existing among the Company and the holders. In the
event that the number of Registrable Securities requested to be included in such
registration is less than the number that, in the opinion of the managing
underwriter, can be sold, the Company may include in such registration the
securities the Company proposes to sell up to the number of securities that, in
the opinion of the managing underwriter, can be sold.
(e) Selection of Underwriter. If Selling Holders representing
a majority of the Registrable Securities included in the Demand Registration so
elect, the offering of such Registrable Securities pursuant to such Demand
Registration shall be in the form of an underwritten offering. The Company shall
select one or more nationally recognized firms of investment bankers, who shall
be reasonably acceptable to the Selling Holders representing a majority of the
Registrable Securities included in the Demand Registration, to act as the
managing underwriter or underwriters in connection with such offering and shall
select any additional investment banker(s) and manager(s) to be used in
connection with the offering, subject to the reasonable approval of the Selling
Holders representing a majority of the Registrable Securities included in the
Demand Registration.
(f) Expenses. The Company will pay all Registration Expenses
in connection with the registrations requested pursuant to Section 2.1(a). Each
Holder shall pay all underwriting discounts and commissions and transfer taxes,
if any, relating to the sale or disposition of such Holder's Registrable
Securities pursuant to a registration statement requested pursuant to this
Section 2.1.
2.2......Piggy-Back Registration. If at any time the Company
proposes to file a Registration Statement under the Securities Act with respect
to an offering by the Company for its own account or for the account of any of
its respective securityholders of any class of its common equity securities
(other than (i) a Registration Statement on Form S-4 or S-8 (or any substitute
form that may be adopted by the SEC) or(ii) a Registration Statement filed in
connection with an exchange offer or offering of securities solely to the
Company's existing securityholders), then the Company shall give written notice
of such proposed filing to the Holders of Registrable Securities as soon as
practicable (but in no event less than 30 days before the anticipated filing
date), and such notice shall offer such Holders the opportunity to register such
number of shares of Registrable Securities as each such Holder may request
within 20 days of the receipt by the Holder of such notice (which request shall
specify the Registrable Securities intended to be disposed of by such Selling
Holder and the intended method of distribution thereof) (a "Piggy-Back
Registration"). The Company shall use its reasonable best efforts to cause the
managing underwriter or underwriters of such proposed underwritten offering or
the holders of securities of the Company requesting such Registration Statement
to permit the Registrable Securities requested to be included in a Piggy-Back
Registration to be included on the same terms and conditions as any similar
securities of the Company or any other securityholder included therein and to
permit the sale or other disposition of such Registrable Securities in
accordance with the intended method of distribution thereof except as otherwise
provided in Section 2.3. Any Selling Holder shall have the right to withdraw its
request for inclusion of its Registrable Securities in any Registration
Statement pursuant to this Section 2.2 by giving written notice to the Company
of its request to withdraw no later than five Business Days before such
Registration Statement becomes effective. The Company may withdraw a Piggy-Back
Registration at any time prior to the time it becomes effective; provided that
the Company shall give prompt notice thereof to participating Selling Holders.
The Company will pay all Registration Expenses in connection with each
registration of Registrable Securities requested pursuant to this Section 2.2,
and each Selling Holder shall pay all underwriting discounts and commissions and
transfer taxes, if any, relating to the sale or disposition of such Selling
Holder's Registrable Securities pursuant to a registration statement effected
pursuant to this Section 2.2.
No registration effected under this Section 2.2, and no
failure to effect a registration under this Section 2.2, shall relieve the
Company of its obligation to effect a registration upon the request of Holders
pursuant to Section 2.1, and no failure to effect a registration under this
Section 2.2 and to complete the sale of shares of Common Stock, in connection
therewith shall relieve the Company of any other obligation under this
Agreement.
2.3......Reduction of Offering
(a) Piggy-Back Registration. (i) If the managing
underwriter(s) of any underwritten offering described in Section 2.2 have
informed, in writing, the Selling Holders of the Registrable Securities
requesting inclusion in such offering that it is their opinion that the total
number of shares that the Company, the Selling Holders and any other Persons
desiring to participate in such registration intend to include in such offering
is such as to adversely affect the success of such offering, including the price
at which such securities can be sold, then the number of shares to be offered
for the account of the Selling Holders and all such other Persons (other than
the Company) participating in such registration shall be reduced or limited to
the number of shares, if any, recommended by such managing underwriters as
follows:
(A) if such registration as initially proposed by the Company
was solely a primary registration of its securities, (x) first, the
securities proposed by the Company to be sold for its own account, (y)
second any Registrable Securities requested to be included in such
registration by Selling Holders, pro rata on the basis of the number of
Registrable Securities requested to be included by such holders and (z)
third any other securities of the Company proposed to be included in
such registration, allocated among the holders thereof in accordance
with the priorities then existing among the Company and such holders;
and
(B) if such registration as initially proposed by the Company
was in whole or in part requested by holders of securities of the
Company, other than Holders of Registrable Securities in their
capacities as such, pursuant to demand registration rights, (x) first,
such securities held by the holders initiating such registration and,
if applicable, any securities proposed by the Company to be sold for
its own account, allocated in accordance with the priorities then
existing among the Company and such holders, (y) second, any
Registrable Securities requested to be included in such registration by
Requesting Holders, pro rata on the basis of the number of Registrable
Securities requested to be included by such Holders and (z) third, any
other securities of the Company proposed to be included in such
registration, allocated among the holders thereof in accordance with
the priorities then existing among the Company and the holders of such
other securities;
(ii) If the managing underwriter or underwriters of any
underwritten offering described in Section 2.2 notify the Selling Holders
requesting inclusion of Registrable Securities in such offering, that the kind
of securities that the Selling Holders, the Company and any other Persons
desiring to participate in such registration intend to include in such offering
is such as to adversely affect the success of such offering, (x) the Registrable
Securities to be included in such offering shall be reduced as described in
clause (i) above or (y) if a reduction in the Registrable Securities pursuant to
clause (i) above would, in the judgment of the managing underwriter(s) or
underwriters, be insufficient to substantially eliminate such adverse effect
that inclusion of the Registrable Securities requested to be included would have
on such offering, such Registrable Securities will be excluded from such
offering.
(b) If, as a result of the proration provisions of this
Section 2.3, any Selling Holder shall not be entitled to include all Registrable
Securities in a Piggy-Back Registration that such Selling Holder has requested
to be included, such Selling Holder may elect to withdraw his request to include
Registrable Securities in such registration (a "Withdrawal Election"); provided,
however, that a Withdrawal Election shall be irrevocable and, after making a
Withdrawal Election, a Selling Holder shall no longer have any right to include
Registrable Securities in the registration as to which such Withdrawal Election
was made.
3........Registration Procedures. In connection with the
obligations of the Company with respect to any Registration Statement pursuant
to Sections 2.1 and 2.2 hereof, the Company shall:
(a) prepare and file with the SEC a Registration Statement on
the appropriate form under the Securities Act, which form (i) shall be
selected by the Company and (ii) shall comply as to form in all
material respects with the requirements of the applicable form and
include all financial statements required by the SEC to be filed
therewith and (iii) may, at the option of the Company, be done as an
amendment to a Shelf Registration Statement in effect at the time such
Demand Registration is requested, and the Company shall use its
reasonable best efforts to cause such Registration Statement to become
effective and remain effective in accordance with Section 2 hereof;
(b) prepare and file with the SEC such amendments and
post-effective amendments to each Registration Statement as may be
necessary to keep such Registration Statement effective for the
applicable period, cause each Prospectus to be supplemented by any
required prospectus supplement and, as so supplemented, to be filed
pursuant to Rule 424 under the Securities Act;
(c) furnish to each Holder whose Registrable Securities are to
be included in such registration and to each underwriter of an
underwritten offering of Registrable Securities, if any, without
charge, as many copies of each Prospectus, including each preliminary
Prospectus, and any amendment or supplement thereto and such other
documents as such Holder or underwriter may reasonably request, in
order to facilitate the public sale or other disposition of the
Registrable Securities;
(d) use its reasonable best efforts to register or qualify the
Registrable Securities under all applicable state securities or "blue
sky" laws of such jurisdictions as any Holder thereof covered by a
Registration Statement shall reasonably request in writing by the time
the applicable Registration Statement is declared effective by the SEC,
and do any and all other acts and things which may be reasonably
necessary or advisable to enable such Holder to consummate the
disposition in each such jurisdiction of such Registrable Securities
owned by such Holder; provided, however, that the Company shall not be
required to (i) qualify generally to do business in any jurisdiction
where it is not then so qualified, (ii) take any action that would
subject it to general service of process in any jurisdiction in which
it is not then so subject or (iii) subject itself to taxation in excess
of a nominal dollar amount in any such jurisdiction;
(e) notify each Holder whose Registrable Securities are
included in such registration promptly and, if requested by such
Holder, confirm such advice in writing (i) when a Prospectus or any
Prospectus supplement or post-effective amendment has been filed, and,
with respect to a Registration Statement or any post-effective
amendment, when the same has become effective under the Securities Act
(including in such notice a written statement that any Holder may, upon
request, obtain, at the sole expense of the Company, one conformed copy
of such Registration Statement or post-effective amendment including
financial statements and schedules, documents incorporated or deemed to
be incorporated by reference and exhibits), (ii) of the issuance by the
SEC of any stop order suspending the effectiveness of a Registration
Statement or of any order preventing or suspending the use of any
preliminary prospectus or the initiation of any proceedings for that
purpose, (iii) if, between the effective date of a Registration
Statement and the closing of any sale of Registrable Securities covered
thereby, the Company receives any notification with respect to the
suspension of the qualification of the Registrable Securities in any
jurisdiction, or the initiation or written threat of any proceeding for
such purpose, (iv) of the happening of any event, the existence of any
condition or any information becoming known that makes any statement
made in such Registration Statement or related Prospectus or any
document incorporated or deemed to be incorporated therein by reference
untrue in any material respects or that requires the making of any
changes in or amendments or supplements to such Registration Statement,
Prospectus or documents so that, in the case of the Registration
Statement, it will not contain any untrue statement of a material fact
or omit to state any material fact required to be stated therein or
necessary to make the statements therein not misleading, and that in
the case of the Prospectus, it will not contain any untrue statement of
a material fact or omit 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 (v) of the Company's determination that a post-effective amendment
to a Registration Statement would be appropriate;
(f) use its reasonable best efforts to obtain the withdrawal
of any order suspending the effectiveness of a Registration Statement
at the earliest possible moment;
(g) furnish to each Holder whose Registrable Securities are
included in such registration and to the Purchasers, without charge, at
least one conformed copy of each Registration Statement and any
post-effective amendment thereto (with documents incorporated therein
by reference or exhibits thereto);
(h) cooperate with the Selling Holders of Registrable
Securities to facilitate the timely preparation and delivery of
certificates representing Registrable Securities to be sold and not
bearing any restrictive legends and registered in such names as the
Selling Holders may reasonably request at least two Business Days prior
to the closing of any sale of Registrable Securities;
(i) upon the occurrence of any event contemplated by Section
3(e)(v) hereof, use its reasonable best efforts to prepare a supplement
or post-effective amendment to a Registration Statement or the related
Prospectus or any document incorporated therein by reference or file
any other required document so that, as thereafter delivered to the
purchasers of the Registrable Securities, such Prospectus will not
contain any untrue statement of a material fact or omit to state a
material fact necessary to make the statements therein, in the light of
the circumstances under which they were made, not misleading. The
Company agrees to notify each Holder to suspend use of the Prospectus
as promptly as practicable after the occurrence of such an event, and
each Holder hereby agrees to suspend use of the Prospectus until the
Company has amended or supplemented the Prospectus to correct such
misstatement or omission. At such time as such public disclosure is
otherwise made or the Company determines in good faith that such
disclosure is not necessary, the Company agrees promptly to notify each
Holder of such determination, to amend or supplement the Prospectus if
necessary to correct any untrue statement or omission therein and to
furnish each Holder such numbers of copies of the Prospectus as so
amended or supplemented as each Holder may reasonably request;
(j) a reasonable time prior to the filing of any Registration
Statement, any Prospectus, any amendment to a Registration Statement or
amendment or supplement to a Prospectus or any document that is to be
incorporated by reference into a Registration Statement or a Prospectus
after initial filing of a Registration Statement, provide copies of
such document to the Holders and make available for discussion of such
document the representatives of the Company as shall be reasonably
requested by the Holders of Registrable Securities;
(k) obtain a CUSIP number for the Registrable Securities;
(l) (i) make reasonably available for inspection by a
representative of, and counsel for, any managing underwriter
participating in any disposition pursuant to a Registration Statement
(collectively, "Inspectors"), all relevant financial and other records,
pertinent corporate documents and properties of the Company
(collectively, the "Records") and (ii) cause the Company's officers,
directors and employees to supply all relevant information reasonably
requested by such representative, counsel or any such managing
underwriter in connection with any such Registration Statement. Records
that the Company determines, in good faith, to be confidential and any
Records which it notifies the Inspectors are confidential shall not be
disclosed by the Inspectors unless (i) the disclosure of such Records
is necessary to avoid or correct a misstatement or omission in such
Registration Statement, (ii) the release of such Records is ordered
pursuant to a subpoena or other order from a court of competent
jurisdiction, (iii) the information in such Records has been made
generally available to the public other than as a result of a
disclosure or failure to safeguard by such Inspector or (iv) disclosure
of such information is, in the written opinion of counsel for any
Inspector, necessary or advisable in connection with any action, claim,
suit or proceeding, directly or indirectly, involving or potentially
involving such Inspector and arising out of, based upon, related to, or
involving this Agreement, or any transactions contemplated hereby or
arising hereunder. Each Inspector will be required to agree that
information obtained by it as a result of such inspections shall be
deemed confidential and shall not be used by it as the basis for any
market transactions in the securities of the Company unless and until
such is made generally available to the public. Each Inspector will be
required to further agree that it will, upon learning that disclosure
of such Records is sought in a court of competent jurisdiction pursuant
to clauses (ii) or (iv) of the previous sentence or otherwise, give
notice to the Company and allow the Company to undertake appropriate
action to obtain a protective order or otherwise prevent disclosure of
the Records deemed confidential at its expense;
(m) take all action necessary so that the Registrable
Securities will be listed on the principal securities exchanges and
markets within the United States of America (including the Nasdaq
National Market System), if any, on which other shares of Common Stock
are then listed;
(n) if requested by the Holders in connection with any
Registration Statement covering an underwritten offering, shall use its
reasonable best efforts to cause (w) counsel for the Company to deliver
an opinion relating to the Registration Statement and the Common Stock,
in customary form to the managing underwriter(s), (x) its officers to
execute and deliver all customary documents and certificates requested
by a representative of the Holders or any managing underwriter, as
applicable, and (y) its independent public accountants to provide a
comfort letter in customary form; and
(o) take all such other actions as the Holders of a majority
of the Registrable Securities being sold or the underwriters, if any,
reasonably request to expedite or facilitate the disposition of
Registrable Securities.
The Company may, as a condition to such Holder's participation
in any Registration Statement, require each Holder of Registrable Securities to
(i) furnish to the Company such information regarding the Holder and the
proposed distribution by such Holder of such Registrable Securities as the
Company may from time to time reasonably request in writing, including, without
limitation, the information required by Item 507 and, if applicable, Item 508 of
Regulation S-K, and (ii) agree in writing to be bound by this Agreement. No
Holder may participate in an underwritten offering of Registrable Securities
unless such Holder (a) agrees to sell such Holder's Registrable Securities on
the basis provided in any underwriting arrangements approved by the Persons
entitled to approve such arrangements and (b) completes and executes all
reasonable questionnaires, powers of attorney, indemnities, underwriting
agreements, lock-up letters and other documents required under the terms of such
underwriting arrangements.
4........Holdback Agreements.
(a) The Holders of Registrable Securities by acquisition of
such Registrable Securities agree, if and to the extent requested by any
managing underwriter (or, in the case of a non-underwritten pubic offering, the
Company), to the extent permitted by law, not to effect any public sale or
distribution (including a sale under Rule 144) of such securities, or any
securities convertible into or exchangeable or exercisable for such securities,
during the 10 days prior to and the 90 days after the effective date of any
registration statement or, if applicable, the most recently post-effective
amendment thereto, filed by the Company in connection with a primary offering of
Common Stock on behalf of the Company (or for such shorter period of time as is
sufficient and appropriate, in the opinion of any managing underwriter (or, in
the case of a non-underwritten public offering, the Company), in order to
complete the sale and distribution of the securities included in such
registration), except as part of such registration statement, whether or not
such Holder participates in such registration.
(b) The Company agrees, if and to the extent requested by any
managing underwriter, (x) not to effect any public sale or distribution of its
equity securities, or any securities convertible into or exchangeable or
exercisable for such securities, during the 10 days prior to and 90 days after
the effective date of any Registration Statement or, if applicable, the most
recently post-effective amendment thereto, filed in connection with an
underwritten offering made pursuant to a Demand Registration or a Piggyback
Registration (or for such shorter period of time as is sufficient and
appropriate, in the opinion of any managing underwriter, in order to complete
the sale and distribution of the securities included in such Demand Registration
or Piggyback Registration), except as part of such underwritten registration and
except pursuant to registrations on Form S-4 or Form S-8 promulgated by the SEC
or any successor or similar forms thereto or any issuance under an employee
stock option or benefits plan, and (y) to cause each holder of its equity
securities, or of any securities convertible into or exchangeable or exercisable
for such securities to agree, to the extent permitted by law, not to effect any
such public sale or distribution of such securities (including a sale under Rule
144), during such period, except as part of such underwritten registration
unless the managing underwriter otherwise agrees.
(c) The foregoing provisions shall not apply to any holder of
securities of the Company to the extent (i) such holder is prohibited by
applicable law from agreeing to withhold from sale and (ii) such holder is
acting in its capacity as a fiduciary or an investment adviser. 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 shares proposed to be
sold are subject to the Employee Retirement Income Security Act, the Investment
Company Act of 1940 or the Investment Advisers Act of 1940 or if such shares are
held in a separate account under applicable insurance law or regulation.
5........Indemnification and Contribution. (a) The Company
agrees to indemnify and hold harmless each Holder and each person, if any, who
controls such Holder within the meaning of either Section 15 of the Securities
Act or Section 20 of the Exchange Act, from and against all losses, claims,
damages and liabilities (including, without limitation, any reasonable legal
fees or other expenses actually incurred by any Holder or any such controlling
or affiliated person in connection with defending or investigating any such
action or claim) caused by any untrue statement or alleged untrue statement of a
material fact contained in any Registration Statement (or any amendment thereto)
pursuant to which Registrable Securities were registered under the Securities
Act, or caused by any omission or alleged omission to state therein a material
fact necessary to make the statements therein, in the light of the circumstances
under which they were made, not misleading, or caused by any untrue statement or
alleged untrue statement of a material fact contained in any Prospectus (as
amended or supplemented if the Company shall have furnished any amendments or
supplements thereto), or caused by any omission or alleged omission to state
therein a material fact necessary to make the statements therein, in the light
of the circumstances under which they were made, not misleading, except insofar
as such losses, claims, damages or liabilities are caused by any such untrue
statement or omission or alleged untrue statement or omission made in reliance
upon and in conformity with information relating to any Holder furnished or
confirmed to the Company or any underwriter engaged in connection with an
underwritten Demand Registration or Piggy-Back Registration in writing by such
Holder expressly for use in any such Registration Statement or Prospectus;
provided that the Company shall not be liable in any such case to the extent
that any such loss, claim, damage, liability or expense arises out of or is
based upon an untrue statement or alleged untrue statement or omission or
alleged omission made in any preliminary prospectus if (i) such Holder failed to
send or deliver a copy of the Prospectus (including any amendments or
supplements thereto) with or prior to the delivery of written confirmation of
the sale of Registrable Securities and (ii) the Prospectus (as amended or
supplemented) would have completely corrected such untrue statement or omission.
Such indemnity shall remain in full force and effect regardless of any
investigation made by or on behalf of such holder or any such director, officer
or controlling Person, and shall survive the transfer of such securities by such
holder. The Company shall also indemnify each other Person who participates
(including as an underwriter) in the offering or sale of Registrable Securities,
their officers and directors and each other Person, if any, who controls any
such participating Person within the meaning of the Securities Act to the same
extent as provided above with respect to holders of Registrable Securities.
(b) Each Holder agrees, severally and not jointly, to
indemnify and hold harmless the Company, its directors, officers, employees and
agents, and each person, if any, who controls the Company within the meaning of
either Section 15 of the Securities Act or Section 20 of the Exchange Act to the
same extent as the foregoing indemnity from the Company to such Holder, but only
with reference to information relating to such Holder furnished to the Company
or any underwriter engaged in connection with an underwritten Demand
Registration or Piggy-Back Registration in writing by such Holder expressly for
use in any Registration Statement (or any amendment thereto), any Prospectus (or
any amendment or supplement thereto) or any preliminary prospectus. The
liability of any Holder under this paragraph (b) shall in no event exceed the
proceeds received by such Holder from sales of Registrable Securities giving
rise to such obligations. Such indemnity shall remain in full force and effect
regardless of any investigation made by or on behalf of the Company or any such
director, officer or controlling Person and shall survive the transfer of such
securities by such Holder. Such Holders shall also indemnify each other Person
who participates (including as an underwriter) in the offering or sale of
Registrable Securities, their officers and directors and each other Person, if
any, who controls any such participating Person within the meaning of the
Securities Act to the same extent as provided above with respect to the Company.
(c) If any suit, action, proceeding (including any
governmental or regulatory investigation), claim or demand shall be brought or
asserted against any Person in respect of which indemnity may be sought pursuant
to either of the two preceding paragraphs, such Person (the "indemnified party")
shall promptly notify the Person against whom such indemnity may be sought (the
"indemnifying party") in writing, and the indemnifying party, upon request of
the indemnified party, shall retain counsel reasonably satisfactory to the
indemnified party to represent the indemnified party and shall pay the
reasonable fees and expenses actually incurred by such counsel related to such
proceeding; provided, however, that the failure to so notify the indemnifying
party shall not relieve it of any obligation or liability that it may have
hereunder or otherwise (unless and only to the extent that such failure directly
results in the loss or compromise of any material rights or defenses by the
indemnifying person was not otherwise aware of such action or claim). In any
such proceeding, any indemnified party shall have the right to retain its own
counsel, but the fees and expenses of such counsel shall be at the expense of
such indemnified party unless (i) the indemnifying party and the indemnified
party shall have mutually agreed in writing to the contrary, (ii) the
indemnifying party has failed within a reasonable time to retain counsel
reasonably satisfactory to the indemnified party or (iii) the named parties in
any such proceeding (including any impleaded parties) include both the
indemnifying party and the indemnified party and representation of both parties
by the same counsel would be inappropriate due to actual or potential differing
interests between them. It is understood that, unless there is a conflict among
indemnified parties, the indemnifying party shall not, in connection with any
proceeding or related proceeding in the same jurisdiction, be liable for the
reasonable fees and expenses of more than one separate firm (in addition to any
local counsel) for all indemnified parties, and that all such fees and expenses
shall be reimbursed as they are incurred. Any such separate firm for the Holders
and such control Persons of the Holders shall be designated in writing by the
Holders who sold a majority in interest of Registrable Securities sold by all
such Holders and any such separate firm for the Company, its directors, officers
and such control Persons of the Company shall be designated in writing by the
Company. 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 is a final non-appealable judgment for the plaintiff, the
indemnifying party agrees to indemnify any indemnified party from and against
any loss or liability by reason of such settlement or judgment. Notwithstanding
the foregoing sentence, if at any time an indemnified party shall have requested
an indemnifying party to reimburse the indemnified party for reasonable fees and
expenses actually incurred by counsel as contemplated by the third sentence of
this paragraph, the indemnifying party agrees that it shall be liable for any
settlement of any proceeding effected without its consent if (i) such settlement
is entered into more than 60 days after receipt by such indemnifying party of
the aforesaid request and (ii) such indemnifying party shall not have reimbursed
the indemnified party in accordance with such request prior to the date of such
settlement; provided, however, that the indemnifying party shall not be liable
for any settlement effected without its consent pursuant to this sentence if the
indemnifying party is contesting, in good faith, the request for reimbursement.
No indemnifying party shall, without the prior written consent of the
indemnified party, effect any settlement of any pending or threatened proceeding
in respect of which any indemnified party is or could have been a party and
indemnity could have been sought hereunder by such indemnified party, unless
such settlement (A) includes an unconditional release of such indemnified party,
in form and substance satisfactory to such indemnified party, from all liability
on claims that are the subject matter of such proceeding and (B) does not
include any statement as to an admission of fault, culpability or failure to act
by or on behalf of an indemnified party.
(d) To the extent the indemnification provided for in
paragraph (a) or (b) of this Section 5 is unavailable to an indemnified party in
respect of any losses, claims, damages or liabilities, then each indemnifying
party under such paragraph, in lieu of indemnifying such indemnified party
thereunder, shall contribute to the amount paid or payable by such indemnified
party as a result of such losses, claims, damages or liabilities in such
proportion as is appropriate to reflect the relative fault of the Company on the
one hand and the Holders on the other hand in connection with the statements or
omissions that resulted in such losses, claims, damages or liabilities, as well
as any other relevant equitable considerations. The relative fault of the
Company on the one hand and the Holders on the other hand shall be determined by
reference to, among other things, whether the untrue or alleged untrue statement
of a material fact or the omission or alleged omission to state a material fact
relates to information supplied by the Company or by the Holders and the
parties' relative intent, knowledge, access to information and opportunity to
correct or prevent such statement or omission.
(e) The Company and each Holder agrees that it would not be
just or equitable if contribution pursuant to this Section 5 were determined by
pro rata allocation or by any other method of allocation that does not take
account of the equitable considerations referred to in paragraph (d) above. The
amount paid or payable by an indemnified party as a result of the losses,
claims, damages and liabilities referred to in paragraph (d) above shall be
deemed to include, subject to the limitations set forth above, any legal or
other expenses reasonably incurred (and not otherwise reimbursed) by such
indemnified party in connection with investigating or defending any such action
or claim. Notwithstanding the provisions of this Section 5, in no event shall a
Selling Holder be required to contribute any amount in excess of the amount by
which proceeds received by such Selling Holder from sales of Registrable
Securities exceeds the amount of damages that such Selling Holder has otherwise
been required to pay by reason of such untrue or allegedly untrue statement or
omission or alleged omission. 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 remedies provided for in this Section 5 are not exclusive
and shall not limit any rights or remedies which may otherwise be available to
any indemnified party at law or in equity.
6........Miscellaneous.
(a) No Conflicting Agreements. Except for registration rights
agreements to which the Company is a party existing on the Issue Date, (i) the
Company has not entered into nor will the Company on or after the date of this
Agreement enter into any agreement which conflicts with the rights granted to
the Holders of Registrable Securities in this Agreement or otherwise conflicts
with the provisions hereof and (ii) the rights granted to the Holders hereunder
do not in any way conflict with the rights granted to the holders of the
Company's other issued and outstanding securities, if any, under any such
agreements.
(b) Amendments and Waivers. The provisions of this Agreement,
including the provisions of this sentence, may not be amended, modified or
supplemented, and waivers or consents to departures from the provisions hereof
may not be given unless the Company has obtained the written consent of Holders
of at least a majority in aggregate number of the outstanding Registrable
Securities affected by such amendment, modification, supplement, waiver or
consent; provided, however, a waiver or consent to departure from the provisions
hereof that relates exclusively to the rights of Holders of Registrable
Securities whose securities are being sold pursuant to a Registration Statement
and that does not directly or indirectly affect the rights of other Holders of
Registrable Securities may be given by the Holders of a majority of the
Registrable Securities proposed to be sold.
(c) Notices. All notices and other communications provided for
or permitted hereunder shall be made in writing by hand delivery, registered
first-class mail, telex, telecopier, or any courier guaranteeing overnight
delivery (i) if to a Holder, at the most current address given by such Holder to
the Company by means of a notice given in accordance with the provisions of this
Section 6(c), which address initially is, with respect to the Purchasers, the
address set forth in the Purchase Agreement, with a copy to: Xxxxxx Xxxxxx &
Xxxxxxx, 00 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Xxxxxxx X.
Xxxxxxxx, Esq.; and (ii) if to the Company, initially at the Company's address
set forth in the Purchase Agreement and thereafter at such other address, notice
of which is given in accordance with the provisions of this Section 6(c), with a
copy to: Xxxx Xxxxx & Xxxxxx PC, Watergate, Eleventh Floor, 000 Xxx Xxxxxxxxx
Xxxxxx, X.X., Xxxxx 0000, Xxxxxxxxxx, X.X. 00000, Attention: Xxxxx X. Xxxxx,
Esq.
All such notices and communications shall be deemed to have
been duly given: (i) at the time delivered by hand, if personally delivered,
five business days after being deposited in the mail, postage prepaid, if
mailed; (ii) when answered back, if telexed; (iii) when receipt is acknowledged,
if telecopied; and (iv) on the next business day, if timely delivered to an air
courier guaranteeing overnight delivery.
(d) Successors and Assigns. This Agreement shall inure to the
benefit of and be binding upon the successors, assigns and transferees of each
of the parties, including, without limitation and without the need for an
express assignment, subsequent Holders; provided, however, that nothing herein
shall be deemed to permit any assignment, transfer or other disposition of
Registrable Securities in violation of the terms of this Agreement, the Purchase
Agreement, the Warrant Agreement or applicable securities laws. If any
transferee of any Holder shall acquire Registrable Securities, in any manner,
whether by operation of law or otherwise, such Registrable Securities shall be
held subject to all of the terms of this Agreement, and by taking and holding
such Registrable Securities such person shall be conclusively deemed to have
agreed to be bound by and to perform all of the terms and provisions of this
Agreement and such person shall be entitled to receive the benefits hereof.
(e) Rules 144 and 144A. The Company and the Guarantors
covenant that they will file the reports required to be filed by it under the
Securities Act and the Exchange Act and the rules and regulations adopted by the
SEC thereunder in a timely manner and in accordance with the requirements of the
Securities Act and the Exchange Act and, if at any time the Company is not
required to file such reports, it will, upon the request of any Holder of
Registrable Securities, make publicly available annual reports and such
information, documents and other reports of the type specified in Sections 13
and 15(d) of the Exchange Act. The Company further covenants for so long as any
Registrable Securities remain outstanding, to make available to any Holder or
beneficial owner of Registrable Securities in connection with any sale thereof
and any prospective purchaser of such Registrable Securities from such Holder or
beneficial owner the information required by Rule 144A(d)(4) under the
Securities Act in order to permit resales of such Registrable Securities
pursuant to Rule 144A.
(f) Counterparts. This Agreement may be executed in any number
of counterparts and by the parties hereto in separate counterparts, each of
which when so executed shall be deemed to be an original and all of which taken
together shall constitute one and the same agreement.
(g) Headings. The headings in this Agreement are for
convenience of reference only and shall not limit or otherwise affect the
meaning hereof.
(h) GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, AS APPLIED TO
CONTRACTS MADE AND PERFORMED WITHIN THE STATE OF NEW YORK. EACH OF THE PARTIES
HERETO AGREES TO SUBMIT TO THE JURISDICTION OF THE COURTS OF THE STATE OF NEW
YORK IN ANY ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT.
(i) Severability. In the event that any one or more of the
provisions contained herein, or the application thereof in any circumstance, is
held invalid, illegal or unenforceable, the validity, legality and
enforceability of any such provision in every other respect and of the remaining
provisions contained herein shall not be affected or impaired thereby.
(j) Entire Agreement. This Agreement, together with the
Purchase Agreement, the Credit Agreement and the Warrant Agreement, is intended
by the parties as a final expression of their agreement, and is intended to be a
complete and exclusive statement of the agreement and understanding of the
parties hereto in respect of the subject matter contained herein and therein.
IN WITNESS WHEREOF, the parties have executed this Agreement
as of the date first written above.
HVIDE MARINE INCORPORATED
By: ____________________________
Name:
Title:
BANKERS TRUST CORPORATION
By: ____________________________
Name:
Title:
GREAT AMERICAN LIFE INSURANCE
COMPANY
By: ____________________________
Name:
Title:
GREAT AMERICAN INSURANCE COMPANY
By: ____________________________
Name:
Title:
NEW ENERGY CORP.
By: ____________________________
Name:
Title:
AMERICAN EMPIRE SURPLUS LINES
INSURANCE COMPANY
By: ____________________________
Name:
Title:
STONEWELL INSURANCE COMPANY
By: ____________________________
Name:
Title:
WORLDWIDE INSURANCE COMPANY
By: ____________________________
Name:
Title:
AMERICAN NATIONAL FIRE INSURANCE
COMPANY
By: ____________________________
Name:
Title:
