EXHIBIT 4.4
REGISTRATION RIGHTS AGREEMENT
Dated October 27, 2000
TABLE OF CONTENTS
PAGE
Section 1. Definitions.....................................................................................1
Section 2. Registration Rights.............................................................................3
2.1 Piggy-back Registration.........................................................................3
2.2 Demand Registration Rights......................................................................4
2.3 Holdback Agreements; Requirements of Holders....................................................9
2.4 Registration Procedures........................................................................10
2.5 Expenses.......................................................................................14
2.6 Indemnification; Contribution..................................................................14
2.7 Participation in Underwritten Registrations....................................................16
Section 3. Other Registration Rights......................................................................17
Section 4. Miscellaneous..................................................................................17
4.1 Recapitalizations, Exchanges, etc..............................................................17
4.2 Opinions.......................................................................................17
4.3 Notices........................................................................................17
4.4 Applicable Law.................................................................................18
4.5 Amendment and Waiver...........................................................................18
4.6 Remedy for Breach of Contract..................................................................18
4.7 Severability...................................................................................19
4.8 Counterparts...................................................................................19
4.9 Headings.......................................................................................19
4.10 Binding Effect.................................................................................19
4.11 Entire Agreement...............................................................................19
4.12 Binding on Holders.............................................................................19
4.13 Effective and Binding..........................................................................19
REGISTRATION RIGHTS AGREEMENT
This
Registration Rights Agreement ("Agreement") is entered
into and made effective as of October 27, 2000 by and between XXXXXXXX-LEEVAC
Marine Services, Inc., a
Delaware corporation (the "Company") and SCF-IV, L.P.,
a
Delaware limited partnership ("SCF").
WITNESSETH:
WHEREAS, the Company has agreed to grant certain demand and piggy-back
registration rights to SCF, in connection with the purchase of certain shares of
Common Stock from the Company pursuant to that certain Subscription Agreement
dated of even date herewith between SCF and the Company (the "Subscription
Agreement") and to other purchasers of Common Stock in the Private Placement as
identified on Appendix A hereto;
NOW, THEREFORE, in consideration of the mutual covenants herein
contained and for other good and valuable consideration the receipt and
sufficiency of which are hereby acknowledged, the parties hereto agree as
follows:
Section 1. Definitions. As used in this Agreement, the following terms
have the meanings indicated:
"Affiliate" means, with respect to any Person, any Person that,
directly or indirectly, controls, is controlled by or is under common control
with such Person. For the purposes of this definition, "control" (including,
with correlative meanings, the terms "controlled by" and "under common control
with"), as used with respect to any Person, means the possession, directly or
indirectly, of the power, alone or as part of an organized group, to direct or
cause the direction of the management and policies of such Person, whether
through the ownership of voting securities, by contract or otherwise.
"Agreement" means this
Registration Rights Agreement, as the same may
be amended, supplemented or modified from time to time in accordance with the
terms hereof then in effect.
"Business Day" shall mean any day other than a Saturday, Sunday or
legal holiday for banks in the State of Texas.
"Commission" shall mean the Securities and Exchange Commission.
"Common Stock" means the Company's Common Stock, par value $.01 per
share, or any successor class of the Company's Common Stock.
"Company" shall mean XXXXXXXX-LEEVAC Marine Services, Inc., a
Delaware
corporation.
"Demand Registration" shall mean the registration of Registrable
Securities pursuant to a Registration Statement filed by the Company under the
1933 Act pursuant to the written request of certain Holders as set forth in
Section 2.2 of this Agreement.
"Enron
Registration Rights Agreement" shall mean that certain
Registration Rights Agreement by and among the Company, Joint Energy Development
Investments II Limited Partnership, and Sundance Assets, L.P., as
successor-in-interest to Enron Capital Trade & Resources Corp., dated June 5,
1998.
"Exchange Act" shall mean the Securities Exchange Act of 1934, as
amended.
"Fair Market Value" shall mean, with respect to a share of Common
Stock, the value of each such share that would be obtained in a commercially
reasonable private sale process in which all equity securities of the Company
are sold as a whole to a non-affiliated entity.
"Holder" means SCF and any other person purchasing Purchaser Shares in
the Private Placement.
"Hornbecks" means Xxxx X. Xxxxxxxx and Xxxx X. Xxxxxxxx.
"Liabilities" shall mean all losses, claims, damages, liabilities and
expenses (including reasonable costs of investigation).
"Person" means any individual, corporation, partnership, joint venture,
association, joint-stock company, trust, unincorporated organization or
government or a political subdivision, agency or instrumentality thereof or
other entity or organization of any kind.
"Piggyback Registration" shall mean the registration of Registrable
Securities pursuant to a registration statement filed by the Company under the
1933 Act as set forth in Section 2.1 of this Agreement.
"Private Placement" shall mean the issuance by the Company of up to
13,207,547 shares of its Common Stock in a private placement as contemplated in
the Subscription Agreement, the purchasers in such placement to be identified in
an Appendix A hereto to be provided at the closing of such placement.
"Publicly Traded" means, with respect to the Common Stock, that such
securities are listed for trading on the New York Stock Exchange, Inc., the
American Stock Exchange, Inc. or the NASDAQ Stock Market's NASDAQ National
Market or NASDAQ SmallCap Market.
"Purchaser Shares" means (i) the shares of Common Stock issued to SCF
pursuant to the Private Placement, (ii) the shares of Common Stock issued to
other persons pursuant to the Private Placement, such other Shares and
purchasers being identified on Appendix A hereto, and (iii) any shares of the
Common Stock issued in exchange for, as a dividend on, or in replacement or upon
conversion of, or otherwise issued in respect of (including Common Stock issued
in a
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stock dividend, split or recombination or pursuant to the exercise of
preemptive rights), any such shares of Common Stock described in clauses (i) and
(ii).
"Records" shall mean all financial and other records, pertinent
corporate documents and properties of the Company.
"Registrable Securities" means any Purchaser Shares until such time as
they (i) have been distributed to the public pursuant to a registration
statement covering such securities that has been declared effective under the
Securities Act, (ii) have been distributed to the public in accordance with the
provisions of Rule 144 (or any similar provision then in force) under the
Securities Act or (iii) have been repurchased by the Company or (iv) are
eligible to be sold pursuant to Rule 144(k) (or any similar provision then in
force) if the Holder thereof owns less than two percent of the then outstanding
Common Stock.
"1997 Stockholders' Agreement" shall mean that certain Stockholders'
Agreement by and among the Company, the Hornbecks and Xxxx dated June 5, 1997.
Section 2. Registration Rights
2.1 Piggy-back Registration
(a) If the Company proposes to file a registration
statement under the Securities Act of 1933, as amended (the "1933 Act"), with
respect to an offering by the Company for its own account or for the account of
any other Person of any class of equity security, including any securities
convertible into or exchangeable for any equity security (other than a
registration statement on Forms S-4 or S-8 (or their successor forms) or filed
in connection with an exchange offer or an offering of securities solely to the
Company's existing stockholders), then the Company shall in each case give
written notice of such proposed filing to the Holders of Registrable Securities
at least twenty days before the anticipated filing date, and such notice shall
offer such Holders the opportunity to register such number of Registrable
Securities as each such Holder may request (a "Piggy-back Registration"). Any
holder electing to participate in such registration agrees to be bound by the
terms and conditions of this Agreement. The Company shall use reasonable
diligence to cause the managing underwriter or underwriters of a proposed
underwritten offering to permit the Holders of Registrable Securities requested
to be included in the registration for such offering to include such securities
in such offering on the same terms and conditions as any similar securities of
the Company included therein. Notwithstanding the foregoing, if the managing
underwriter or underwriters of such offering delivers a written opinion to the
holders of Registrable Securities that the total amount of securities which they
or the Company and any other Persons intend to include in such offering is
sufficiently large to materially and adversely affect the success of such
offering, then the amount or kind of Registrable Securities to be offered for
the accounts of Holders of Registrable Securities shall be reduced pro rata
(based on the number of shares of Common Stock requested to be included in such
offering by each such Holder) with respect to each Holder requesting inclusion
therein to the extent necessary, in the opinion of such managing underwriter, to
reduce the total amount of securities to be included in such offering to the
amount recommended by such managing underwriter; provided, that the reduction
imposed upon Holders of Registrable
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Securities shall not be greater, on a fractional basis, than the reduction
imposed upon other Persons whose piggy-back registration rights are pari passu
with those granted hereby with respect to the amount of securities requested for
inclusion in such registration.
(b) Notwithstanding anything to the contrary
contained in this Agreement, the Company shall not be required to include
Registrable Securities in any registration statement if the proposed
registration is (i) a registration of a stock option or other employee incentive
compensation plan or of securities issued or issuable pursuant to any such plan,
(ii) a registration of securities issued or issuable pursuant to a stockholder
reinvestment plan, or other similar plan, (iii) a registration of securities
issued in exchange for any securities or any assets of, or in connection with a
merger or consolidation with, an unaffiliated company, or (iv) a registration of
securities pursuant to a "rights" or other similar plan designed to protect the
Company's stockholders from a coercive or other attempt to take control of the
Company.
(c) The Company may withdraw any registration
statement and abandon any proposed offering initiated by the Company without the
consent of any Holder of Registrable Securities, notwithstanding the request of
any such Holder to participate therein in accordance with this provision, if the
Company determines in its sole discretion that such action is in the best
interests of the Company and its stockholders (for this purpose, the interest of
the Holders in effecting the registration and offering shall not be considered).
(d) Notwithstanding anything to the contrary
contained in this Agreement, the rights of Holders of Registrable Securities to
be included in a Piggy-Back Registration, whether or not such registration is
underwritten:
(i) shall, in accordance with that certain
Agreement Concerning Registration Rights dated of even date herewith by and
among the Company, SCF and the other parties to the 1997 Stockholders' Agreement
and Enron
Registration Rights Agreement, be pari passu to the rights granted
under the 1997 Stockholders' Agreement to the "Holders" of "Registrable
Securities" (as such terms are used in the 1997 Stockholders' Agreement), and
pari passu to the right of "Holders" of "Registrable Securities" (as such terms
are used in the Enron
Registration Rights Agreement); and
(ii) shall be superior to any registration
rights granted subsequent to the date of this Agreement.
2.2 Demand Registration Rights
(a) Right to Demand.
(i) Subject to the conditions stated in this
Section 2.2 herein and provided the Common Stock is registered under Section 12
of the Exchange Act, at any time after the date hereof, the Holders of at least
50.1% of the shares of Registrable Securities may make a written request to the
Company for registration with the Commission by such Holders, under and in
accordance with the provisions of the 1933 Act, of the resale of all or part of
their Registrable Securities (a "Demand Registration"); provided that the
Company may if necessary
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delay the filing of such Demand Registration for such reasonable period of
time, not to exceed 90 days, as is necessary to prepare the financial statements
of the Company for the fiscal period most recently ended prior to such written
request. Within 10 Business Days after receipt of such request, the Company will
serve written notice (the "Notice") of such registration request to all Holders
of the Registrable Securities and holders of Company securities possessing
equivalent registration rights and the Company will include in such registration
all Registrable Securities and securities eligible for registration of such
holders with respect to which the Company has received written requests for
inclusion therein within 10 Business Days after the receipt by the applicable
holder of the Notice. Any Holder by electing to participate in such registration
agrees to be bound by the terms and conditions of this Agreement.
(ii) Subject to the conditions stated
hereinafter in this Section 2.2(a), at any time after the earlier of (x) the
fourth anniversary of the date hereof or (y) the Repurchase Event Date (as
defined in Section 2.2(a)(vi), if the Company is not Publicly Traded and SCF
continues to own at least 80% of the shares of Common Stock acquired by SCF in
the Private Placement, SCF may make a written request (a "Special Demand") to
the Company for registration with the Commission of the offer and sale of SCF's
shares of the Registrable Securities under and in accordance with the provisions
of the 1933 Act (the "Special Demand Registration"); provided, however, that if
the Repurchase Event Date is based on an election or elections to cause the
repurchase of less than all of the Warrants or a Board Determination to redeem
less than all of the Warrants or to enter into a transaction with the holders of
Warrants to substantially the same effect as a redemption or repurchase of less
than all of the Warrants, then the shares which SCF shall be entitled to include
in a Special Demand shall be limited to that number determined by multiplying
8,150,944 (or such lesser number of shares of Common Stock as is then owned by
SCF) by a fraction the numerator of which is the number of shares of Common
Stock otherwise issuable pursuant to the Warrants to be so redeemed, repurchased
or subjected to a transaction to substantially the same effect and the
denominator of which shall be 11,904,761 or such lesser number of Warrants as
are then exercisable. If SCF is not permitted to include all of its shares of
Registrable Securities in a Special Demand, SCF shall continue to have the right
to make Special Demands pursuant to the terms of this Section. Following receipt
of such request, the Company shall, no later than 40 Business Days after receipt
of such request, notify SCF of its election to either (1) file the registration
statement covering such shares for sale by SCF, provided that the Company may,
if necessary, delay the filing of any registration statement relating to any
such Special Demand Registration for such reasonable period of time, not to
exceed 90 days, as is necessary to prepare the financial statements of the
Company for the fiscal period most recently ended prior to such written request,
or (2) if the Company is not at such time registered under the Exchange Act,
purchase the number of shares requested to be registered from SCF at a price per
share equal to the Fair Market Value for shares of Common Stock. In the event
the Company elects to exercise its rights under (2) above, SCF shall not be
required to sell such Registrable Securities to the Company, but because the
Company offers to purchase such Registrable Securities, its obligation to
register such Registrable Securities on demand under this Section 2.2(a)(ii)
shall have been satisfied. Within 10 Business Days after the Company provides
its notice of election to SCF of its intention to file a registration statement
at SCF's request, the Company will serve written notice (the "Special Demand
Notice") of such registration request to all Holders of Registrable Securities
and the Company will include in such registration together with the shares of
SCF, all such Registrable Securities with respect to which
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the Company has received written requests for inclusion therein within 10
Business Days after the receipt by the applicable Holder of the Special Demand
Notice. Any Holder by electing to participate in such registration agrees to be
bound by the terms and conditions of this Agreement. If a Holder of Registrable
Securities shall fail to request inclusion in such Special Demand Registration
and such Special Demand Registration shall not become effective under the 1933
Act, such Holder failing to request inclusion in the Special Demand Registration
shall not have a right to request inclusion of such Holder's Registrable
Securities in a future demand registration with respect to the Registrable
Securities. Any Holder, a representative of whom is on the Company's Board of
Directors and which representative voted not to register the shares upon such a
request, shall not be entitled to cause the inclusion of such Holder's shares in
any such Special Demand Registration. If the Company elects to effect a
registration pursuant to a Special Demand, then after taking into account the
shares to be sold by SCF and any other selling stockholders in such
registration, the Company will include in the registration statement such
additional shares to be sold by the Company so that the aggregate offering price
of all shares to be sold under such registration statement will equal at least
$25 million.
(iii) Any purchase of shares by the Company
pursuant to Section 2.2(a)(ii) above shall be consummated (a "Closing") within
150 Days after the expiration of the 40-Business Day period stated above that
begins with the receipt by the Company of SCF's request for registration under
Section 2.2(a)(ii). Any Closing shall take place at the offices of the Company
at 000 X. Xxxxxxxx Xxxxxxxxx, Xxxxxxxxxx, Xxxxxxxxx 00000, at 9:00 a.m. At the
Closing, the Company will deliver a certified or bank cashier's check or
evidence of a wire transfer to SCF's designated account, in the amount of the
purchase price for the shares of Common Stock sold by such Holder, against
delivery of the certificate evidencing such shares duly endorsed or accompanied
by a stock power duly endorsed in blank.
(iv) Whenever as a result of a Special
Demand the Company determines to consider its election under Section
2.2(a)(ii)(2) and, accordingly, a determination of the Fair Market Value of the
Common Stock must be made and such determination shall be made in good faith by
the Board of Directors of the Company within 15 Business Days following the
Special Demand. The Company shall notify SCF of such determination no later than
two Business Days following the date of such determination. If SCF disagrees
with the Fair Market Value as so determined by the Board of Directors, SCF shall
so notify the Company within three Business Days after receipt of notice from
the Board of Directors of its determination and SCF shall include in such notice
(a "Dissenting Notice"), SCF's estimate of the Fair Market Value. In the event
SCF and the Company are unable to reach an agreement regarding the Fair Market
Value within two Business Days after receipt by the Company of the Dissenting
Notice, then the Fair Market Value shall be determined by an independent third
party, knowledgeable and experienced in the valuation of private businesses, and
who is mutually acceptable to the Company and SCF (the "Appraiser"). In the
event the Company and SCF are unable to agree upon an Appraiser within two
Business Days after receipt by the Company of the Dissenting Notice, each party
shall select an investment banking firm and the two investment banking firms so
selected shall, within three Business Days, select a third investment banking
firm to be the Appraiser. The Appraiser shall make a determination of Fair
Market Value within 15 Business Days of his appointment and shall notify the
Company and SCF of such determination, which shall be binding on all parties if
the Company elects to proceed under Section 2.2(a)(ii)(2).
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Costs associated with the determination of Fair Market Value shall be borne by
the Company unless the Fair Market Value as determined by the Appraiser is
closer to the value determined by the Board of Directors than the value
estimated by SCF, in which event SCF shall pay such costs; provided, that if,
following the appraisal the Company elects under Section 2(a)(ii) to register
the shares pursuant to the Special Demand, the Company shall pay the costs of
the Appraiser.
(v) All requests made pursuant to this
Section 2.2(a) will specify the amount of Registrable Securities to be
registered and will also specify the intended methods of disposition thereof.
(vi) For purposes of Section 2.2(a)(ii), a
Repurchase Event Date shall occur if (i) the holders of warrants (the
"Warrants") that were originally issued to Joint Energy Development Investment
II Limited Partnership and Enron Capital & Trade Resources Corp. on June 5, 1998
give the Company notice that such holders are exercising any of their rights
under Section 3 of Warrants to require the Company to repurchase Warrants or
(ii) the Board of Directors of the Company determines ("Board Determination") to
redeem Warrants or to enter into a transaction with the holders of Warrants to
substantially the same effect as a redemption or repurchase of Warrants;
provided, however, that, if the holders of Warrants elect to withdraw their
notice of election to require repurchase of Warrants or the Board of Directors
elects to rescind the Board Determination, SCF's right to a Special Demand prior
to the fourth anniversary of the date hereof shall simultaneously terminate. The
Company shall promptly give SCF notice of any Repurchase Event Date.
(b) Supplemental Demand Registrations. If the
managing underwriter or underwriters of a Demand Registration (or in the case of
a Demand Registration not being underwritten, the holders of a majority of the
Registrable Securities being registered therein), advise the Company in writing
that in its or their opinion the number of securities proposed to be sold in
such Demand Registration exceeds the number which can be sold in such offering
at the desired price, the Company will include in such registration only the
number of securities which, in the opinion of such underwriter or underwriters
(or Holders, as the case may be) can be sold, selected pro rata among the
Holders which have requested to be included in such Demand Registration. In such
event, the Holders of the shares requested to be included but not so included
(the "Excess Requested Shares") shall be treated as if there had been no Demand
Registration, and shall be entitled to the benefit of this Section 2.2 with
respect to the Excess Requested Shares, provided that any subsequent Demand
Registration shall not be required to become effective within twelve months of
the effective date of any prior Demand or Piggy-back Registration hereunder.
With respect to such a Demand Registration subsequently initiated, only Excess
Requested Shares shall be deemed Registrable Shares, and no Holder shall have
any further Demand Registration rights with respect to shares for which he
failed to request inclusion pursuant to Section 2.2(a) in a prior Demand
Registration that became effective.
(c) Selection of Underwriters. If any Demand
Registration is an underwritten offering, the holders of a majority of the
Registrable Securities to be included in such Demand Registration will select a
managing underwriter or underwriters acceptable to the Company to administer the
offering, which acceptance will not be unreasonably withheld.
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(d) Company Registration. Notwithstanding the
provisions of paragraphs 2.2(a)-(c), the Company shall not be obligated to
effect a registration requested pursuant to paragraphs 2.2(a)-(c) (other than
pursuant to a Special Demand) if within 10 Business Days after receiving the
notice provided by a Holder under paragraphs 2.2(a)-(c) (other than a Special
Demand), the Company notifies all Holders of Registrable Securities of its
intention to file a registration statement for a firm commitment underwritten
public offering of Common Stock and within ninety days after providing such
notice, files a registration statement for such offering. In such case, the
Holders shall have all the rights provided herein as if no such demand for
registration had been requested. If at any time the Company fails diligently to
pursue its registration statement or the offering, the provisions of the
preceding sentence shall not apply, and the Company shall be obligated to
satisfy its obligations under paragraphs 2.2(a)-(c). With respect to such
registration, the Company shall have sole authority to select or terminate the
employment of underwriters, and to make all decisions in connection with the
filing, effectiveness and consummation of the proposed offering, subject to the
express provisions hereof.
(e) The obligations of the Company under Sections
2.2(a)-(c) are subject to each of the following limitations, conditions and
qualifications:
(i) The Company shall be entitled to
postpone for a reasonable period of time (not exceeding 60 days) the filing (but
not the preparation) of any registration statement otherwise required to be
prepared and filed by it pursuant hereto if, at the time the Company receives a
request for such registration, the Company is in possession of material
non-public information that would be required to be disclosed in a registration
statement but that has not been and will otherwise not be disclosed to the
public and the Company deems disclosure not to be in the best interests of the
Company and its stockholders (for this purpose, the interest of the Holders in
effecting the registration shall not be considered). The Company shall be
entitled to postpone the filing of such a registration statement for additional
30-day periods (not to exceed in any event an aggregate of 90 days) if it
delivers to the Holders of Registrable Securities an opinion of counsel to the
effect that there is a reasonable likelihood that the filing of a registration
statement would result in the disclosure of material non-public information that
would be required to be disclosed in a registration statement, the disclosure of
which at such time appears not to be in the best interests of the Company and
its stockholders (for this purpose, the interest of the Holders in effecting the
registration shall not be considered).
(ii) The Company shall be entitled to
postpone for a reasonable period of time (not exceeding 90 days) the
distribution of preliminary or final prospectuses under any registration
statement required to be prepared and filed by it pursuant hereto, if at the
time such distribution would otherwise be made the Company is engaged in an
issuer tender offer within the meaning of Section 13(e) of the Exchange Act, as
amended, for securities of the same class as the Registrable Securities, unless
the Holders of the Registrable Securities proposed to be registered can obtain a
no-action letter from the staff of the Commission to the effect that the staff
would not recommend enforcement action to the Commission if offers or sales were
made pursuant to a prospectus under such circumstances.
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(iii) The Company shall be entitled to
postpone for a reasonable period of time (not exceeding 90 days) the
effectiveness (but not the filing or preparation) of any registration statement
otherwise required to be prepared and filed by it pursuant hereto if, within 10
Business Days after it receives a request for a registration pursuant hereto,
the Company's investment banking firm determines (and the Company so notifies
the Holders of Registrable Securities) that in its judgment, such registration
and offering would materially interfere with any financing, acquisition,
corporate reorganization or other material transaction involving the Company
that prior to such request the Board of Directors of the Company had agreed by
resolution to pursue.
(iv) Intentionally Omitted.
(v) The holders of securities that may be
registered pursuant to Section 2.1 of the 1997 Stockholders' Agreement may
exercise the piggy-back registration rights granted to such holders under such
Section 2.1 of the 1997 Stockholders' Agreement with respect to the Demand
Registration or Special Demand Registration and be included in a registration
statement pertaining to such demand registration on the same terms and
conditions as the Holders of the Registrable Securities requesting such
registration, subject to possible reduction at the initiative of the managing
underwriter or underwriters as provided in Section 2.1(a).
(vi) The holders of securities that may be
registered pursuant to Section 2.02 of the Enron
Registration Rights Agreement
may exercise the piggy-back registration rights granted to such holders under
such Section 2.02 of the Enron
Registration Rights Agreement with respect to the
Demand Registration or Special Demand Registration and be included in a
registration statement pertaining to such demand registration on the same terms
and conditions as the Holders of the Registrable Securities requesting such
registration subject to possible reduction at the initiative of the managing
underwriter or underwriters as provided in Section 2.1(a).
(vii) The Company shall be entitled to
include in any registration statement filed pursuant to this Section 2.2, for
sale in accordance with the method of disposition specified by the requesting
Holder, securities of the Company entitled to vote generally in the election of
directors (or any securities convertible into or exchangeable for or exercisable
for the purchase of securities so entitled generally to vote in the election of
directors) (collectively, "Voting Securities") to be sold by the Company for its
own account, except as and 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 materially jeopardize the successful marketing
of the Registrable Securities to be sold.
2.3 Holdback Agreements; Requirements of Holders.
(a) Restrictions on Public Sale by Holders of
Registrable Securities. To the extent not inconsistent with applicable law,
including insurance codes, SCF and each Holder of Registrable Securities that
are included in a registration statement which registers Registrable Securities
pursuant to this Agreement agree not to effect any public sale or distribution
of the issue being registered or a similar security of the Company or any
securities
9
convertible into or exchangeable or exercisable for such securities, during the
14 days prior to, and during the 180-day period (or such shorter period as to
which the Company or any other Person is subject) beginning on, the effective
date of a registration statement filed by the Company (except as part of such
registration), but only if and to the extent requested in writing (with
reasonable prior notice) by the managing underwriter or underwriters in the case
of an underwritten public offering by the Company and/or selling stockholders of
securities similar to the Registrable Securities; provided, however, that the
period of time for which the Company is required to keep such registration
statement which includes Registrable Securities continuously effective shall be
increased by a period equal to such requested holdback period.
(b) Restrictions on Public Sale by the Company. The
Company agrees not to effect any public sale or distribution of any securities
similar to those being registered, or any securities convertible into or
exchangeable or exercisable for such securities, during the 14 days prior to,
and during the 90-day period beginning on, the effective date of any
registration statement in which the Holders of Registrable Securities are
participating (except pursuant to such registration statement).
(c) Cooperation by Holders. The offering of
Registrable Securities by any Holder shall comply in all respects with the
applicable terms, provisions and requirements set forth in this Agreement, and
such Holder shall timely provide the Company with all information and materials
required to be included in a registration statement that (a) relate to the
offering, (b) are in possession of such Holder, and (c) relate to such Holder,
and to take all such action as may be reasonably required in order not to delay
the registration and offering of the securities by the Company. The Company
shall have no obligation to include in such registration statement shares of a
Holder who has failed to furnish such information which, in the written opinion
of counsel to the Company, is required in order for the registration statement
to be in compliance with the 1933 Act.
2.4 Registration Procedures. Whenever any Registrable
Securities are to be registered pursuant to Sections 2.1 or 2.2 of this
Agreement, the Company will use reasonable diligence to effect the registration
of such Registrable Securities in accordance with the intended method of
disposition thereof as quickly as practicable. In connection with any Piggy-back
Registration, Demand Registration or Special Demand Registration, the Company
will as expeditiously as possible:
(a) prepare and file with the Commission a
registration statement which includes the Registrable Securities and use
reasonable diligence to cause such registration statement to become effective;
provided, however, that before filing a registration statement or prospectus or
any amendments or supplements thereto, including documents incorporated by
reference after the initial filing of the registration statement, the Company
will furnish to the Holders of the Registrable Securities covered by such
registration statement and the underwriters, if any, draft copies of all such
documents proposed to be filed at least 3 Business Days prior thereto, which
documents will be subject to the reasonable review of such Holders and
underwriters, and the Company will not file any registration statement or
amendment thereto or any prospectus or any supplement thereto (including such
documents incorporated by reference) to which holders of a majority of the
Registrable Securities covered by such
10
registration statement or the underwriters with respect to such Registrable
Securities, if any, shall reasonably object, and will notify each Holder of the
Registrable Securities of any stop order issued or threatened by the Commission
in connection therewith and take all reasonable actions required to prevent the
entry of such stop order or to remove it if entered;
(b) prepare and file with the Commission such
amendments and post-effective amendments to the registration statement as may be
necessary to keep the registration statement effective for a period of not less
than six months (or such shorter period which will terminate when all
Registrable Securities covered by such registration statement have been sold or
withdrawn, but not prior to the expiration of the 90-day period referred to in
Section 4(3) of the 1933 Act and Rule 174 thereunder, if applicable); cause the
prospectus to be supplemented by any required prospectus supplement, and as so
supplemented to be filed pursuant to Rule 424 under the 1933 Act; and comply
with the provisions of the 1933 Act applicable to it with respect to the
disposition of all securities covered by such registration statement during the
applicable period in accordance with the intended methods of disposition by the
sellers thereof set forth in such registration statement or supplement to the
prospectus;
(c) furnish to any Holder of Registrable Securities
included in such registration statement and the underwriter or underwriters, if
any, without charge, such number of conformed copies of the registration
statement and any post-effective amendment thereto and such number of copies of
the prospectus (including each preliminary prospectus) and any amendments or
supplements thereto, and any documents incorporated by reference therein, as
such Holder or underwriter may reasonably request in order to facilitate the
disposition of the Registrable Securities being sold by such Holder (it being
understood that the Company consents to the use of the prospectus and any
amendment or supplement thereto by each Holder of Registrable Securities covered
by the registration statement and the underwriter or underwriters, if any, in
connection with the offering and sale of the Registrable Securities covered by
the prospectus or any amendment or supplement thereto);
(d) notify each Holder of Registrable Securities
included in such registration statement, at any time when a prospectus relating
thereto is required to be delivered under the Securities Act, when the Company
becomes aware of the happening of any event as a result of which the prospectus
included in such registration statement (as then in effect) contains any untrue
statement of a material fact or omits to state a material fact necessary to make
the statements therein (in the case of the prospectus or any preliminary
prospectus, in light of the circumstances under which they were made) not
misleading and, as promptly as practicable thereafter, prepare and file with the
Commission and furnish a supplement or amendment to such prospectus so that, as
thereafter delivered to the purchasers of such 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 light of the
circumstances under which they were made, not misleading;
(e) use reasonable diligence to cause all Registrable
Securities included in such registration statement to be listed, by the date of
the first sale of Registrable Securities pursuant to such registration
statement, on each securities exchange (including, for this purpose, NASDAQ
Stock Market) on which the Common Stock of the Company is then listed or
proposed
11
to be listed, if any and, in the case of a Special Demand Registration, use all
reasonable diligence to cause all Registrable Securities included in such
registration statement to be listed on the New York Stock Exchange, the American
Stock Exchange or the NASDAQ Stock Market's National Market System.
(f) make generally available to its security holders
an earnings statement satisfying the provisions of Section 11(a) of the 1933 Act
no later than 45 days after the end of the 12-month period beginning with the
first day of the Company's first fiscal quarter commencing after the effective
date of the registration statement, which earnings statement shall cover said
12-month period, which requirement will be deemed to be satisfied if the Company
timely files complete and accurate information on Forms 10-Q, 10-K and 8-K under
the Securities Exchange Act of 1934, as amended (the "Exchange Act"), and
otherwise complies with Rule 158 under the 1933 Act as soon as feasible;
(g) make every reasonable effort to obtain the
withdrawal of any order suspending the effectiveness of the registration
statement at the earliest possible moment;
(h) if requested by the managing underwriter or
underwriters or any Holder of Registrable Securities covered by the registration
statement, promptly incorporate in a prospectus supplement or post-effective
amendment such information as the managing underwriter or underwriters or such
Holder requests to be included therein, including, without limitation, with
respect to the number of Registrable Securities being sold by such Holder to
such underwriter or underwriters, the purchase price being paid therefor by such
underwriter or underwriters and any other terms of the underwritten offering of
such Registrable Securities, and promptly make all required filings of such
prospectus supplement or post-effective amendment;
(i) as promptly as practicable after filing with the
Commission of any document which is incorporated by reference into a
registration statement, deliver a copy of such document to each Holder of
Registrable Securities covered by such registration statement;
(j) on or prior to the date on which the registration
statement is declared effective, use reasonable diligence to register or
qualify, and cooperate with the Holders of Registrable Securities included in
such registration statement, the underwriter or underwriters, if any, and their
counsel, in connection with the registration or qualification of the Registrable
Securities covered by the registration statement for offer and sale under the
securities or blue sky laws of each state and other jurisdiction of the United
States as any such Holder or underwriter reasonably requests in writing, to use
reasonable diligence to keep each such registration or qualification effective,
including through new filings, or amendments or renewals, during the period such
registration statement is required to be kept effective and to do any and all
other acts or things necessary or advisable to enable the disposition in all
such jurisdictions of the Registrable Securities covered by the applicable
registration statement; provided that the Company will not be required to
qualify generally to do business in any jurisdiction where it is not then so
qualified or to take any action which would subject it to general service of
process in any such jurisdiction where it is not then so subject;
12
(k) cooperate with the Holders of Registrable
Securities covered by the registration statement and the managing underwriter or
underwriters, if any, to facilitate the timely preparation and delivery of
certificates (not bearing any restrictive legends) representing securities to be
sold under the registration statement, and enable such securities to be in such
denominations and registered in such names as the managing underwriter or
underwriters, if any, or such Holders may request, subject to the underwriters'
obligation to return any certificates representing securities not sold;
(l) use reasonable diligence to cause the Registrable
Securities covered by the registration statement to be registered with or
approved by such other governmental agencies or authorities within the United
States as may be necessary to enable the seller or sellers thereof or the
underwriter or underwriters, if any, to consummate the disposition of such
securities;
(m) enter into such customary agreements (including
an underwriting agreement in customary form) and take all such other reasonable
actions as the Holders of a majority of the Registrable Securities being sold or
the underwriters retained by Holders participating in an underwritten public
offering, if any, reasonably request in order to expedite or facilitate the
disposition of such Registrable Securities;
(n) make available for inspection by one
representative of the Holders of Registrable Securities included in such
Registration Statement, any underwriter participating in any disposition
pursuant to such registration statement, and any attorney, accountant or other
agent retained by any such representative of the Holders or underwriter
(collectively, the "Inspectors"), all nonconfidential financial and other
records, pertinent corporate documents and properties of the Company
(collectively, the "Records"), as shall be reasonably necessary to enable each
of the foregoing to exercise its due diligence responsibility, and cause the
Company's officers, directors and employees to supply all Records reasonably
requested by any such Inspector in connection with such registration statement;
provided, however, that with respect to any Records that are confidential, the
Inspectors shall execute such confidentiality agreements as the Company may
reasonably request in order to maintain the confidentiality of the Records; and
(o) use reasonable diligence in connection with any
underwritten offering to obtain a "cold comfort" letter from the Company's
independent public accountants in customary form and covering such matters of
the type customarily covered by cold comfort letters as the managing underwriter
or underwriters may reasonably request.
Each Holder, upon receipt of any notice from the Company of the
happening of any event of the kind described in subsection (d) of this Section
2.4, will forthwith discontinue disposition of the Registrable Securities until
such Holder's receipt of the copies of the supplemented or amended prospectus
contemplated by subsection (d) of this Section 2.4 or until it is advised in
writing (the "Advice") by the Company that the use of the prospectus may be
resumed, and has received copies of any additional or supplemental filings which
are incorporated by reference in the prospectus, and, if so directed by the
Company, such Holder will, or will request the managing underwriter or
underwriters, if any, to, deliver to the Company (at the Company's
13
expense) all copies, other than permanent file copies then in such Holder's
possession, of the prospectus covering such Registrable Securities current at
the time of receipt of such notice. In the event the Company shall give any such
notice, the time periods mentioned in subsection (b) of this Section 2.4 shall
be extended by the number of days during the period from and including the date
of the giving of such notice to and including the date when each seller of
Registrable Securities covered by such registration statement shall have
received the copies of the supplemented or amended prospectus contemplated by
subsection (d) of this Section 2.4 hereof or the Advice.
If such registration statement refers to any Holder by name or
otherwise as the Holder of any securities of the Company then such Holder shall
have the right to require (i) the insertion therein of language, in form and
substance satisfactory to such holder, to the effect that the holding by such
Holder of such securities is not to be construed as a recommendation of such
Holder of the investment quality of the Company's securities covered thereby and
that such holding does not imply that such Holder will assist in meeting any
future financial requirements of the Company, or (ii) in the event that such
reference to such Holder by name or otherwise is not required by the 1933 Act or
any similar federal statute then in force, the deletion of the reference to such
Holder.
2.5 Expenses.
(a) Registration Expenses. "Registration Expenses"
means all expenses incurred by the Company incident to the Company's performance
of or compliance with this Agreement, including without limitation, all SEC and
securities exchange, NASDAQ or National Association of Securities Dealers, Inc.
registration and filing fees, fees and expenses (other than the pro rata portion
of filing fees required by state law attributable to the securities to be sold)
of compliance with securities or blue sky laws (including fees and
disbursements, if any, of any underwriters' counsel in connection with blue sky
qualifications of the Registrable Securities), rating agency fees, printing
expenses, messenger and delivery expenses, internal expenses (including, without
limitation, all salaries and expenses of its officers and employees performing
legal or accounting duties), the fees and expenses incurred in connection with
the listing of the securities to be registered on each securities exchange or
NASDAQ on which similar securities issued by the Company are to be or are then
listed and fees and disbursements of counsel for the Company and its independent
certified public accountants (including the expenses of any special audit or
"cold comfort" letters required by or incident to such performance), securities
act liability insurance (if the Company elects to obtain such insurance), the
fees and expenses of any special experts retained by the Company in connection
with such registration and reasonable fees of one counsel for all selling
Holders (the "Sellers' Attorney") (but not including any Selling Expenses).
"Selling Expenses" means all underwriting fees, discounts and selling
commissions allocable to the sale of Registrable Securities sold pursuant to the
applicable registration statement and all out-of-pocket expenses incurred
directly by the selling Holders, including for legal counsel other than the
Sellers' Attorney.
(b) The Company will pay all Registration Expenses in
connection with each Demand Registration, Special Demand Registration or
Piggyback Registration and the selling Holders shall pay all Selling Expenses.
14
2.6 Indemnification; Contribution.
(a) Indemnification by the Company. The Company
agrees to indemnify and hold harmless each Holder of Registrable Securities, its
officers, directors and each Person who controls such Holder (within the meaning
of the 1933 Act), and any Agent (as hereinafter defined) or investment advisor
thereof against all Liabilities arising out of or based upon any untrue or
alleged untrue statement of material fact contained in any registration
statement, any amendment or supplement thereto, any prospectus or preliminary
prospectus or any omission or alleged omission to state therein a material fact
required to be stated therein or necessary to make the statements therein not
misleading, except insofar as any such Liabilities arise out of or are based
upon any untrue statement or omission based upon information with respect to
such indemnified Person furnished in writing to the Company by such indemnified
Person expressly for use therein. In connection with an underwritten offering,
the Company will indemnify the underwriters thereof, their officers and
directors and each Person who controls such underwriters (within the meaning of
the 0000 Xxx) to the same extent as provided above with respect to the
indemnification of the Holders of Registrable Securities or to such other extent
as the Company and such underwriters may agree. For purposes of this Section
2.6(a), an "Agent" of a Holder of Registrable Securities is any person acting
for or on behalf of such Holder with respect to the holding or sale of such
Registrable Securities.
(b) Indemnification by Holders of Registrable
Securities. In connection with any registration statement in which a Holder of
Registrable Securities is participating, each such Holder will furnish to the
Company in writing such information with respect to the name and address of such
Holder and the amount of Registrable Securities held by such Holder and such
other information as the Company shall reasonably request for use in connection
with any such registration statement or prospectus, and agrees to indemnify, to
the extent permitted by law, the Company, its directors and officers and each
Person who controls the Company (within the meaning of the 0000 Xxx) against any
Liabilities resulting from any untrue statement of a material fact or any
omission of a material fact required to be stated in the registration statement
or prospectus or any amendment thereof or supplement thereto or necessary to
make the statements therein not misleading, to the extent, but only to the
extent, that such untrue statement or omission was made in reliance upon and in
conformity with information with respect to such Holder so furnished in writing
by such Holder specifically for inclusion in any prospectus or registration
statement. In no event shall the liability of any selling Holder of Registrable
Securities hereunder be greater in amount than the dollar amount of the proceeds
received by such Holder upon the sale of the Registrable Securities giving rise
to such indemnification obligation.
(c) Conduct of Indemnification Proceedings. Any
Person entitled to indemnification hereunder agrees to give prompt written
notice to the indemnifying party after the receipt by such Person of any written
notice of the commencement of any action, suit, proceeding or investigation or
threat thereof made in writing for which such Person may claim indemnification
or contribution pursuant to this Agreement and, unless in the written opinion of
counsel for such indemnified party a conflict of interest may exist between such
indemnified party and the indemnifying party with respect to such claim, permit
the indemnifying party to assume the defense of such claim with counsel
reasonably satisfactory to such indemnified party.
15
Whether or not such defense is assumed by the indemnifying party, the
indemnifying party will not be subject to any liability for any settlement made
without its consent. No indemnifying party will consent to entry of any judgment
or enter into any settlement which does not include as an unconditional term
thereof the giving by the claimant or plaintiff to such indemnified party of a
release from all liability in respect of such claim or litigation. If the
indemnifying party is not entitled to, or elects not to, assume the defense of a
claim, it will not be obligated to pay the fees and expenses of more than one
counsel with respect to such claim, unless in the opinion of counsel for any
indemnified party a conflict of interest may exist between such indemnified
party and any other of such indemnified parties with respect to such claim, in
which event the indemnifying party shall be obligated to pay the fees and
expenses of such additional counsel or counsels.
(d) Contribution. If the indemnification provided for
in this Section 2.6 from the indemnifying party is unavailable to or
insufficient to hold harmless an indemnified party hereunder in respect of any
Liabilities referred to therein, then the indemnifying party, in lieu of
indemnifying such indemnified party, shall contribute to the amount paid or
payable by such indemnified party as a result of such Liabilities in such
proportion as is appropriate to reflect the relative fault of the indemnifying
party and indemnified parties in connection with the actions which resulted in
such Liabilities, as well as any other relevant equitable considerations. The
relative fault of such indemnifying party and indemnified parties shall be
determined by reference to, among other things, whether any action in question,
including any untrue or alleged untrue statement of a material fact, has been
made by, or relates to information supplied by, such indemnifying party or
indemnified parties, and the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent such action. The amount paid
or payable by a party as a result of the Liabilities referred to above shall be
deemed to include, subject to the limitations set forth in Section 2.6(c), any
legal or other fees or expenses reasonably incurred by such party in connection
with any investigation or proceeding.
The parties hereto agree that it would not be just and equitable if
contribution pursuant to this Section 2.6(d) were determined by pro rata
allocation or by any other method of allocation which does not take account of
the equitable considerations referred to in the immediately preceding paragraph.
Notwithstanding the provisions of this Section 2.6(d), no selling Holder shall
be required to contribute any amount in excess of the amount by which the total
price at which the Registrable Securities of such selling Holder were offered to
the public exceeds the amount of any damages which such selling Holder has
otherwise been required to pay by reason of such untrue statement or omission.
No Person guilty of fraudulent misrepresentation (within the meaning of Section
11(f) of the 0000 Xxx) shall be entitled to contribution from any Person who was
not guilty of such fraudulent misrepresentation.
The obligations of the Company pursuant to this Section 2.6 shall be
further subject to such additional express agreements of the Company as may be
required to facilitate an underwritten offering, provided that no such agreement
shall in any way limit the rights of the Holders of Registrable Securities under
this Agreement, or create additional obligations of such Holders not set forth
herein, except as otherwise expressly agreed in writing by any such Holders.
16
2.7 Participation in Underwritten Registrations. No Holder of
Registrable Securities may participate in any underwritten registration
hereunder unless such Holder (a) agrees to sell such Holder's securities on the
terms of and on the basis provided in any underwriting arrangements approved by
the Persons entitled hereunder to approve such arrangements (which shall be the
Company in the case of an offering of securities by the Company); (b) completes
and executes all questionnaires, powers of attorney, indemnities, underwriting
agreements and other documents reasonably required under the terms of such
underwriting arrangements; and (c) agrees to be bound by all terms and
conditions of this Agreement.
Section 3. Other Registration Rights. The Company may only grant
registration rights to any Person (including the Holders of Registrable
Securities) with respect to any securities of the Company that are granted in
accordance with the terms of this Section 3. Such new rights must either (i) if
identical to those granted herein (through being designated as "Purchaser
Shares" hereunder), be approved in writing by Holders of a majority of the then
Registrable Securities, or (ii) if not identical to those granted herein,
nevertheless not be inconsistent with the terms of this Agreement while
providing that (a) with respect to demand registration rights granted to other
Persons, the Holders of Registrable Securities have a piggy-back right upon the
exercise of such new rights and shall be included in such registration statement
on the same terms and conditions as the holders of the new rights, subject to
possible reduction at the initiative of the managing underwriter or underwriters
on terms substantially equivalent to those set forth in Section 2.1 and with
respect to piggy-back rights granted to other Persons, such other Persons'
rights to be included in a registration statement shall not be superior to the
rights of the Holder. The Company may grant registration rights that would
permit any person the right to piggy-back or may itself exercise the right to
piggy-back on any Demand Registration or Special Demand Registration, provided
that if the managing underwriter or underwriters of such offering delivers an
opinion to the Holders of Registrable Securities that the total amount of
securities which they and the holders of such new piggy-back rights intend to
include in any Demand Registration or Special Demand Registration is so large as
to materially and adversely affect the success of such offering (including the
price at which such securities can be sold), then only the amount or kind of
securities to be offered for the account of holders of such new piggy-back
rights, or the Company if it is exercising piggy-back rights, will be reduced to
the extent necessary to reduce the total amount of securities to be included in
such offering to the amount recommended by the managing underwriter prior to any
reduction in the amount of Registrable Securities to be included; and further
provided that if such offering is not underwritten, then such piggy-back shall
only be exercised with the consent of the Holders of a majority of the
Registrable Securities being offered in the Demand Registration or Special
Demand Registration.
Section 4. Miscellaneous.
4.1 Recapitalizations, Exchanges, etc. The provisions of this
Agreement shall apply, to the full extent set forth herein with respect to the
Registrable Securities, to any and all shares of capital equity of the Company
or any successor or assign of the Company (whether by merger, consolidation,
sale of assets or otherwise) which may be issued in respect of, in exchange for,
or in substitution of the shares of Registrable Securities, in each case as the
17
amounts of such securities outstanding are appropriately adjusted for any equity
dividends, splits, reverse splits, combinations, recapitalizations and the like
occurring after the date of this Agreement.
4.2 Opinions. When any legal opinion is required to be
delivered hereunder, such opinion may contain such qualifications as may be
customary or otherwise appropriate for legal opinions in similar circumstances.
4.3 Notices. For purposes of this Agreement, notices and all
other communications provided for herein shall be in writing and shall be deemed
to have been duly given when personally delivered or when mailed by United
States registered or certified mail, return receipt requested, postage prepaid,
addressed as follows:
If to Company, to: XXXXXXXX-LEEVAC Marine Services, Inc.
000 X. Xxxxxxxx Xxxx.
Xxxxxxxxxx, XX 00000
Attention: Chairman
Attention: President
With a copy to: R. Xxxxx Xxxxxx, Xx., Esq.
Xxxxxxxx Xxxxxxxx & Xxxxxx P.C.
000 Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxx 00000
If to SCF, to: 6600 Chase Bank Tower
000 Xxxxxx Xxxxxx
Xxxxxxx, XX 00000
Attention: Xxxxxx X. Xxxxx
If to other Holders: At their addresses on the stock transfer
records of the Company.
or to such other address as any party may furnish to the others in writing in
accordance herewith, except that notices of changes of address shall be
effective only upon receipt, and that failure to copy legal counsel shall not
invalidate notices otherwise properly given.
4.4 Applicable Law. This contract is entered into under, and
shall be governed for all purposes by, the laws of the State of
Delaware.
4.5 Amendment and Waiver. This Agreement (other than Section
2.2(a)(ii)) may be amended, and the provisions hereof may be waived, only by a
written instrument signed by (i) the Holders holding a majority of the
Registrable Securities and (ii) the Company. Section 2.2(a)(ii) of this
Agreement may be amended and the provisions thereof may be waived only by a
written instrument signed by SCF and the Company. Actions by the Company to
amend this Agreement must be approved by the Company's board of directors. No
failure by any party hereto at any time to give notice of any breach by any
other party of, or to require
18
compliance with, any condition or provision of this Agreement shall be deemed a
waiver of similar or dissimilar provisions or conditions at the same or at any
prior or subsequent time.
4.6 Remedy for Breach of Contract. The parties agree that in
the event there is any breach or asserted breach of the terms, covenants or
conditions of this Agreement, the remedy of the parties hereto shall be at law
and in equity and injunctive relief shall lie for the enforcement of or relief
from any provisions of this Agreement.
4.7 Severability. It is a desire and intent of the parties
that the terms, provisions, covenants and remedies contained in this Agreement
shall be enforceable to the fullest extent permitted by law. If any such term,
provision, covenant or remedy of this Agreement or the application thereof to
any Person or circumstances shall, to any extent, be construed to be invalid or
unenforceable, in whole or in part, then such term, provision, covenant or
remedy shall be construed in a manner so as to permit its enforceability under
the applicable law to the fullest extent permitted by law. In any case, the
remaining provisions of this Agreement or the application thereof to any Person
or circumstances other than those to which they have been held invalid or
unenforceable, shall remain in full force and effect.
4.8 Counterparts. This Agreement may be executed in one or
more counterparts, each of which shall be deemed to be an original, but all of
which together will constitute one and the same Agreement.
4.9 Headings. The section and paragraph headings have been
inserted for purposes of convenience and shall not be used for interpretive
purposes.
4.10 Binding Effect. This Agreement may not be assigned to a
third party by any Holder other than to a Holder to whom SCF has transferred
substantially all of its Purchaser Shares in compliance with the restrictions
applicable under the Stockholders Agreement entered into of even date herewith
among SCF, the Company, Xxxx Investment Company, Xxxx X. Xxxxxxxx and Xxxx X.
Xxxxxxxx. Unless otherwise provided herein, the provisions of this Agreement
shall be binding upon and inure to the benefit of the parties hereto (including
those Holders who elect to participate in any registration) and their respective
heirs, legal representatives, successors and permitted assigns, and is not
intended to confer upon any other Person any right or remedies hereunder other
than purchasers in the Private Placement.
4.11 Entire Agreement. This Agreement, together with the other
agreements referenced herein, constitutes the entire agreement and supersedes
all prior agreements, understandings, both written and oral, among the parties
with respect to the subject matter hereof.
4.12 Binding on Holders. In addition to SCF, each other
Holder, by electing to exercise any rights under this Agreement or to
participate in any registration of Company securities pursuant hereto, agrees to
be bound by the terms of this Agreement and the Agreement Concerning
Registration Rights of even date herewith by and among the Company, SCF and the
other parties thereto.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
19
4.13 Effective and Binding. Notwithstanding anything else in
this Agreement, this Agreement will only become effective and binding on the
parties hereto (and other Holders in accordance with Section 4.12) upon the
closing under the Subscription Agreement of the sale of 8,150,944 shares of
Common Stock to SCF.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first above written.
XXXXXXXX-LEEVAC MARINE SERVICES, INC.
By: /s/ XXXXXXXXX X. XXXXXXX
------------------------------------------------
Xxxxxxxxx X. Xxxxxxx
Chairman and Chief Executive Officer
SCF-IV, L.P.
a
Delaware limited partnership
By: SCF-IV, G.P., Limited Partnership,
its general partner
By: X.X. Xxxxxxx & Associates
Incorporated, its general partner
By: /s/ XXXXXXX X. XxXXXX
------------------------------
Xxxxxxx X. XxXxxx
Managing Director
[SIGNATURE PAGE TO REGISTRATION RIGHTS AGREEMENT]
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