AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON MAY 21, 1998.
REGISTRATION NO. 333-50751
================================================================================
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
------------------------
AMENDMENT NO. 2
TO
FORM S-1
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
------------------------
CAL DIVE INTERNATIONAL, INC.
(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
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1389
MINNESOTA 1311 95-3409686
(STATE OR OTHER JURISDICTION (PRIMARY STANDARD INDUSTRIAL (I.R.S. EMPLOYER
OF INCORPORATION OR ORGANIZATION) CLASSIFICATION CODE NUMBER) IDENTIFICATION NUMBER)
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400 N. SAM HOUSTON PARKWAY E., SUITE 400
HOUSTON, TEXAS 77060
(281) 618-0400
(ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER,
INCLUDING AREA CODE, OF REGISTRANTS PRINCIPAL EXECUTIVE OFFICES)
ANDREW C. BECHER
SENIOR VICE PRESIDENT AND GENERAL COUNSEL
CAL DIVE INTERNATIONAL, INC.
400 N. SAM HOUSTON PARKWAY E., SUITE 400
HOUSTON, TEXAS 77060
(281) 618-0400
(ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER,
INCLUDING AREA CODE, OF AGENT FOR SERVICE)
------------------------
COPIES TO:
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ARTHUR H. ROGERS RICHARD M. RUSSO T. MARK KELLY
FULBRIGHT & JAWORSKI L.L.P. GIBSON, DUNN & CRUTCHER LLP VINSON & ELKINS L.L.P.
1301 MCKINNEY STREET, SUITE 5100 1801 CALIFORNIA STREET, SUITE 4100 2300 FIRST CITY TOWER
HOUSTON, TEXAS 77010 DENVER, COLORADO 80202 1001 FANNIN STREET
(713) 651-5151 (303) 298-5700 HOUSTON, TEXAS 77002
(713) 758-2222
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APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO PUBLIC. As soon as
practicable after this Registration Statement becomes effective.
If any of the securities being registered on this Form are to be offered on
a delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, please check the following box. [ ]
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, check the following box and
list the Securities Act registration statement number of the earlier effective
registration statement for the same offering. [ ]
If this Form is a post-effective amendment filed pursuant to Rule 462(c)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. [ ]
If this Form is a post-effective amendment filed pursuant to Rule 462(d)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. [ ]
If delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box. [ ]
THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE OR
DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT SHALL
FILE A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS REGISTRATION
STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(A) OF
THE SECURITIES ACT OF 1933, AS AMENDED, OR UNTIL THIS REGISTRATION STATEMENT
SHALL BECOME EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING PURSUANT TO
SECTION 8(A), MAY DETERMINE.
================================================================================
<PAGE>
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
13. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION
The following table sets forth the estimated costs and expenses of the
Registrant in connection with the offering described in the Registration
Statement. All of the amounts shown are estimates except the SEC registration
fee and the NASD filing fee.
SEC Filing Fee....................... $ 28,100
NASD Filing Fee...................... 11,000
Legal Fees and Expenses.............. 120,000
Accounting Fees and Expenses......... 40,000
Printing Expenses.................... 120,000
Blue Sky Fees and Expenses........... 1,500
Miscellaneous Expenses............... 9,400
----------
Total........................... $ 330,000(1)
==========
- ------------
(1) All of the issuance and distribution expenses will be borne by the
Registrant.
14. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Minnesota Statutes Section 302A.521 provides that a corporation organized
under Minnesota law shall indemnify any director, officer, employee or agent of
the corporation made or threatened to be made a party to a proceeding, by reason
of the former or present official capacity (as defined) of the person, against
judgments, penalties, fines, settlements and reasonable expenses incurred by the
person in connection with the proceedings if certain statutory standards are
met. "Proceeding" means a threatened, pending or completed civil, criminal,
administrative, arbitration or investigative proceeding, including one by or in
the right of the corporation. Section 302A.521 contains detailed terms regarding
such rights of indemnification and reference is made thereto for a complete
statement of such indemnification rights.
Reference is made to the Underwriting Agreement filed as Exhibit 1 to this
Registration Statement for a description of indemnification arrangements related
to this Offering.
Insofar as indemnification for liabilities arising under the Securities Act
of 1933, as amended (the "Act") may be permitted to directors, officers and
controlling persons of the Registrant pursuant to the foregoing provisions, or
otherwise, the Registrant has been advised that, in the opinion of the
Securities and Exchange Commission, such indemnification is against public
policy as expressed in the Act and is, therefore, unenforceable. In the event
that a claim for indemnification against such liabilities (other than the
payment by the Registrant of expenses incurred or paid by a director, officer or
controlling person of the Registrant in the successful defense of any action,
suit or proceeding) is asserted by such director, officer or controlling person
in connection with the securities being registered, the Registrant will, unless
in the opinion of its counsel the matter has been settled by controlling
precedent, submit to a court of appropriate jurisdiction the question whether
such indemnification by it is against public policy as expressed in the Act and
will be governed by the final adjudication of such issue.
II-1
<PAGE>
15. RECENT SALES OF UNREGISTERED SECURITIES.
During the last three years, the Company has sold the following securities
that were not registered under the Act.
1. From November 1995 through May 1996, pursuant to the provisions of the
1995 Long Term Incentive Plan, as amended, the Company granted options to
purchase an aggregate of 476,500 shares of Common Stock at an exercise price of
$4.50 per share to certain employees, including officers and directors.
2. In April 1997, the Company granted options to employees to purchase an
aggregate of 435,000 shares at an exercise price of $9.50 per share.
3. On April 11, 1997, the Company issued an aggregate of 528,541 shares of
Common Stock to Coflexip at a per share price equal to $9.46 per share in
consideration for the purchase of certain assets valued at an aggregate of $5
million and in entering into a Business Cooperation Agreement pursuant to which
the Company and Coflexip intend to form a joint venture for combined services on
Gulf of Mexico projects.
4. Since April 1997, the Company granted options to employees to purchase
an aggregate of 220,000 shares at exercise prices ranging from $9.50 to $37.125.
5. Since the Company's initial public offering, 20,000 shares have been
issued pursuant to the exercise of employee stock options.
No underwriting commissions or discounts were paid with respect to the
sales of unregistered securities described herein.
Except as otherwise noted, all of the above sales were made in reliance on
Section 4(2) of the Act for transactions not involving a public offering. With
regard to the reliance by the Company upon such exemption for registration,
certain inquiries were made by the Company to establish that such sales
qualified for such exemption from the registration requirements. In particular,
the Company confirmed that (i) each purchaser provided the Company with written
assurance of investment intent, and the certificates for the shares sold
accordingly bear restrictive legends and (ii) sales were made a limited number
of persons.
16. EXHIBITS AND FINANCIAL STATEMENT SCHEDULES.
(A) EXHIBITS
EXHIBIT
NUMBER DESCRIPTION
- ----------------------------------------------------------------
1.1(1) -- Form of Underwriting Agreement
3.1 -- Amended and Restated Articles of
Incorporation of Registrant,
incorporated by reference to Exhibits
3.1 to the Form S-1 Registration
Statement filed by the Registrant (Reg.
No. 333-26357).
3.2 -- Bylaws of Registrant, incorporated by
reference to Exhibit 3.2 to the Form S-1
Registration Statement filed by the
Registrant (Reg. No. 333-26357).
4.1 -- Amended and Restated Loan and Security
Agreement by and among the Company, ERT
and Fleet Capital Corporation (f/n/a
Shawmut Capital Corporation) dated as of
May 23, 1995 incorporated by reference
to Exhibit 4.1 to the Form S-1
Registration Statement filed by the
Registrant (Reg. No. 333-26357).
4.2 -- Amendment No. 5 to Loan incorporated by
reference to Exhibit 4.2 to the Form S-1
Registration Statement filed by the
Registrant (Reg. No. 333-26357).
4.3 -- Form of Common Stock certificate,
incorporated by reference to Exhibit 4.1
to the Form S-1 Registration Statement
filed by the Registrant (Reg. No.
333-26357).
II-2
<PAGE>
4.4 -- Shareholders Agreement by and among the
Company, First Reserve Secured Energy
Asset Fund, First Reserve Fund V, First
Reserve Fund V-2, First Reserve Fund
(collectively the "Selling
Shareholders"), Messrs. Reuhl, Kratz,
Nelson and other shareholders of the
Company incorporated by reference to
Exhibit 4.4 to the Form S-1 Registration
Statement filed by the Registrant (Reg.
No. 333-26357).
4.5 -- Registration Rights Agreement by and
between the Company, the Selling
Shareholders, Messrs. Reuhl, Kratz,
Nelson and other shareholders of the
Company incorporated by reference to
Exhibit 4.5 to the Form S-1 Registration
Statement filed by the Registrant (Reg.
No. 333-26357).
4.6 -- Registration Rights Agreement by and
between the Company and Coflexip in-
corporated by reference to Exhibit 4.6
to the Form S-1 Registration Statement
filed by the Registrant (Reg. No.
333-26357).
4.7 -- First Amended and Restated 1995
Registration Rights Agreement dated as
of April 11, 1997, among the Company,
First Reserve Secured Energy Assets
Fund, Limited Partnership, First Reserve
Fund V, Limited Partnership, First
Reserve Fund V-2, Limited Partnership,
First Reserve Fund VI, Limited
Partnership, Gerald G. Reuhl, Owen Kratz
and S. James Nelson.
5.1 -- Opinion of Andrew C. Becher.
10.1 -- Purchase Agreement dated April 11, 1997
by and between Coflexip and the Company
incorporated by reference to Exhibit
10.1 to the Form S-1 the Registration
Statement filed by the Registrant (Reg.
No. 333-26357).
10.2 -- Business Cooperation Agreement dated
April 11, 1997 by and between Coflexip
and the Company incorporated by
reference to Exhibit 10.2 to the Form
S-1 the Registration Statement filed by
the Registrant (Reg. No. 333-26357).
10.3 -- 1995 Long Term Incentive Plan, as
amended incorporated by reference to
Exhibit 10.3 to the Form S-1 the
Registration Statement filed by the
Registrant (Reg. No. 333-26357).
10.4 -- Employment Agreement between Gerald G.
Reuhl and the Company incorporated by
reference to Exhibit 10.4 to the Form
S-1 the Registration Statement filed by
the Registrant (Reg. No. 333-26357).
10.5 -- Employment Agreement between Owen Kratz
and the Company incorporated by
reference to Exhibit 10.5 to the Form
S-1 the Registration Statement filed by
the Registrant (Reg. No. 333-26357).
10.6 -- Employment Agreement between S. James
Nelson and the Company incorporated by
reference to Exhibit 10.6 to the Form
S-1 the Registration Statement filed by
the Registrant (Reg. No. 333-26357).
10.7(1) -- Employment Agreement between Louis L.
Tapscott and the Company.
10.8 -- 1997 Annual Incentive Compensation
Program incorporated by reference to
Exhibit 10.7 to the Form S-1
Registration Statement filed by
Registrant (Reg. No. 333-26357).
21 -- Subsidiaries of the Registrant. The
Company has two subsidiaries, Energy
Resource Technologies, Inc., a Delaware
corporation, and Cal Dive Offshore,
Ltd., a Cayman Islands corporation.
23.1(1) -- Consent of Arthur Andersen LLP.
23.2 -- Consent of Andrew C. Becher (included in
Exhibit 5.1).
23.3(1) -- Consent of Miller & Lents, Ltd.
24(1) -- Power of Attorney.
- ------------
(1) Previously filed.
(B) FINANCIAL STATEMENT SCHEDULE
None
II-3
<PAGE>
17. UNDERTAKINGS.
(a) Insofar as indemnification for liabilities arising under the
Securities Act of 1993, as amended (the "Act") may be permitted to directors,
officers and controlling persons of the Registrant pursuant to the foregoing
provisions, or otherwise, the Registrant has been advised that in the opinion of
the Securities and Exchange Commission such indemnification is against public
policy as expressed in the Act and is, therefore, unenforceable. In the event
that a claim for indenmification against such liabilities (other than the
payment by the Registrant of expenses incurred or paid by a director, officer or
controlling person of the Registrant in the successful defense of any action,
suit or proceeding) is asserted by such director, officer or controlling person
in connection with the securities being registered, the Registrant will, unless
in the opinion of its counsel the matter has been settled by controlling
precedent, submit to a court of appropriate jurisdiction the question whether
such indemnification by it is against public policy as expressed in the Act and
will be governed by the final adjudication of such issue.
(b) The undersigned registrant hereby undertakes that:
(i) For purposes of determining liability under the Securities Act of
1993, the information omitted from the form of prospectus filed as part of
a registration statement filed pursuant to Rule 430A and contained in the
form of a prospectus filed by the registrant pursuant to Rule 424(b)(1) or
Rule 497(h) under the Securities Act of 1933 shall be deemed to be part of
the Registration Statement as of the time it was declared effective.
(ii) For the purpose of determining liability under the Securities
Act of 1933, each post-effective amendment that contains a form of
prospectus shall be deemed to be a new Registration Statement relating to
the securities offered therein, and the offering of such securities at that
time shall be deemed to be the initital bona fide offering thereof.
II-4
<PAGE>
SIGNATURES
PURSUANT TO THE REQUIREMENTS OF THE SECURITIES ACT OF 1933, AS AMENDED, THE
REGISTRANT CERTIFIES THAT IT HAS REASONABLE GROUNDS TO BELIEVE THAT IT MEETS ALL
OF THE REQUIREMENTS FOR FILING ON FORM S-1 AND HAS DULY CAUSED THIS REGISTRATION
STATEMENT TO BE SIGNED ON ITS BEHALF BY THE UNDERSIGNED, THEREUNTO DULY
AUTHORIZED, IN THE CITY OF HOUSTON, STATE OF TEXAS, ON MAY 21, 1998.
CAL DIVE INTERNATIONAL, INC.
By: /s/ ANDREW C. BECHER
-------------------------------
ANDREW C. BECHER
SENIOR VICE PRESIDENT
AND GENERAL COUNSEL
PURSUANT TO THE REQUIREMENTS OF THE SECURITIES ACT OF 1933, AS AMENDED, THIS
REGISTRATION STATEMENT HAS BEEN SIGNED BELOW BY THE FOLLOWING PERSONS IN THE
CAPACITIES INDICATED ON MAY 21, 1998.
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SIGNATURE TITLE
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* Chairman of the Board
-----------------------------
GERALD G. REUHL
* President, Chief Executive Officer,
----------------------------- Chief Operating Officer and Director
OWEN KRATZ (principal executive officer)
* Executive Vice President, Chief
----------------------------- Financial Officer and Director
S. JAMES NELSON (principal financial and accounting
officer)
* Director
-----------------------------
WILLIAM E. MACAULAY
* Director
-----------------------------
GORDON F. AHALT
* Director
-----------------------------
DAVID H. KENNEDY
* Director
-----------------------------
GERALD M. HAGE
* Director
-----------------------------
THOMAS M. EHRET
* Director
-----------------------------
JEAN-BERNARD FAY
* Director
-----------------------------
KENNETH HULLS
*By: /s/ANDREW C. BECHER
-----------------------------
ANDREW C. BECHER
ATTORNEY-IN-FACT
II-5
<PAGE>
INDEX TO EXHIBITS
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EXHIBIT
NUMBER DESCRIPTION
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1.1(1) -- Form of Underwriting Agreement
3.1 -- Amended and Restated Articles of Incorporation of Registrant, incorporated by reference to Exhibits
3.1 to the Form S-1 Registration Statement filed by the Registrant (Reg. No. 333-26357).
3.2 -- Bylaws of Registrant, incorporated by reference to Exhibit 3.2 to the Form S-1 Registration Statement
filed by the Registrant (Reg. No. 333-26357).
4.1 -- Amended and Restated Loan and Security Agreement by and among the Company, ERT and Fleet Capital
Corporation (f/n/a Shawmut Capital Corporation) dated as of May 23, 1995 incorporated by reference to
Exhibit 4.1 to the Form S-1 Registration Statement filed by the Registrant (Reg. No. 333-26357).
4.2 -- Amendment No. 5 to Loan incorporated by reference to Exhibit 4.2 to the Form S-1 Registration
Statement filed by the Registrant (Reg. No. 333-26357).
4.3 -- Form of Common Stock certificate, incorporated by reference to Exhibit 4.1 to the Form S-1
Registration Statement filed by the Registrant (Reg. No. 333-26357).
4.4 -- Shareholders Agreement by and among the Company, First Reserve Secured Energy Asset Fund, First
Reserve Fund V, First Reserve Fund V-2, First Reserve Fund (collectively the "Selling
Shareholders"), Messrs. Reuhl, Kratz, Nelson and other shareholders of the Company incorporated by
reference to Exhibit 4.4 to the Form S-1 Registration Statement filed by the Registrant (Reg. No.
333-26357).
4.5 -- Registration Rights Agreement by and between the Company, the Selling Shareholders, Messrs. Reuhl,
Kratz, Nelson and other shareholders of the Company incorporated by reference to Exhibit 4.5 to the
Form S-1 Registration Statement filed by the Registrant (Reg. No. 333-26357).
4.6 -- Registration Rights Agreement by and between the Company and Coflexip incorporated by reference to
Exhibit 4.6 to the Form S-1 Registration Statement filed by the Registrant (Reg. No. 333-26357).
4.7 -- First Amended and Restated 1995 Registration Rights Agreement dated as of April 11, 1997, among the
Company, First Reserve Secured Energy Assets Fund, Limited Partnership, First Reserve Fund V, Limited
Partnership, First Reserve Fund V-2, Limited Partnership, First Reserve Fund VI, Limited Partnership,
Gerald G. Reuhl, Owen Kratz and S. James Nelson.
5.1 -- Opinion of Andrew C. Becher.
10.1 -- Purchase Agreement dated April 11, 1997 by and between Coflexip and the Company incorporated by
reference to Exhibit 10.1 to the Form S-1 the Registration Statement filed by the Registrant (Reg. No.
333-26357).
10.2 -- Business Cooperation Agreement dated April 11, 1997 by and between Coflexip and the Company
incorporated by reference to Exhibit 10.2 to the Form S-1 the Registration Statement filed by the
Registrant (Reg. No. 333-26357).
10.3 -- 1995 Long Term Incentive Plan, as amended incorporated by reference to Exhibit 10.3 to the Form S-1
the Registration Statement filed by the Registrant (Reg. No. 333-26357).
10.4 -- Employment Agreement between Gerald G. Reuhl and the Company incorporated by reference to Exhibit 10.4
to the Form S-1 the Registration Statement filed by the Registrant (Reg. No. 333-26357).
10.5 -- Employment Agreement between Owen Kratz and the Company incorporated by reference to Exhibit 10.5 to
the Form S-1 the Registration Statement filed by the Registrant (Reg. No. 333-26357).
10.6 -- Employment Agreement between S. James Nelson and the Company incorporated by reference to Exhibit 10.6
to the Form S-1 the Registration Statement filed by the Registrant (Reg. No. 333-26357).
<PAGE>
INDEX TO EXHIBITS -- CONTINUED
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EXHIBIT
NUMBER DESCRIPTION
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10.7(1) -- Employment Agreement between Louis L. Tapscott and the Company.
10.8 -- 1997 Annual Incentive Compensation Program incorporated by reference to Exhibit 10.7 to the Form S-1
Registration Statement filed by Registrant (Reg. No. 333-26357).
21 -- Subsidiaries of the Registrant. The Company has two subsidiaries, Energy Resource Technologies, Inc.,
a Delaware corporation, and Cal Dive Offshore, Ltd., a Cayman Islands corporation.
23.1(1) -- Consent of Arthur Andersen LLP.
23.2 -- Consent of Andrew C. Becher (included in Exhibit 5.1).
23.3(1) -- Consent of Miller & Lents, Ltd.
24(1) -- Power of Attorney.
- ------------
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(1) Previously filed.
EXHIBIT 4.7
FIRST AMENDED AND RESTATED
1995 REGISTRATION RIGHTS AGREEMENT
This First Amended and Restated 1995 Registration Rights Agreement,
dated as of April 11, 1997 (this "First Amendment"), among Cal Dive
International, Inc., a Minnesota corporation (the "Company"), First Reserve
Secured Energy Assets Fund, Limited Partnership, a Delaware limited partnership
(SEA"), First Reserve Fund V, Limited Partnership, a Delaware limited
partnership ("Fund V"), First Reserve Fund V-2, Limited Partnership, a Delaware
limited partnership ("Fund V-2"), First Reserve Fund VI, Limited Partnership, a
Delaware limited partnership ("Fund VI"; together with SEA, Fund VI and Fund
V-2, the "Funds"), Gerald G. Reuhl, Owen Kratz and S. James Nelson, individually
(collectively, the "Executives") and as Trustees of the Cal Dive International,
Inc. Voting Trust (the "Trust").
RECITALS
The Funds, the Executives (individually and as Trustees) and the Company
are parties to a Registration Rights Agreement dated as of January 12, 1995 (the
"Original Registration Agreement").
The Funds, the Executives, the Company and Coflexip, a French
corporation ("CSO"), are parties to the 1997 Registration Rights Agreement dated
as of April 11, 1997 (the "CSO Registration Agreement") which contains terms
that are different than the terms of the Original Registration Agreement; and in
connection with the execution and delivery of the CSO Registration Agreement and
the Purchase Agreement dated as of April 11, 1997 among the Company, Coflexip
and certain shareholders of the Company (the "Purchase Agreement"), the Company
agreed, with the consent of Coflexip, pursuant to a Letter Agreement dated April
11, 1997, to amend the Original Registration Agreement in order to conform the
terms of the Original Registration Agreement in all respects to the terms of the
CSO Registration Agreement for the benefit of the Funds and the Executives.
AGREEMENT
NOW THEREFORE, in consideration of the mutual covenants and agreements
herein contained and other good and valuable consideration, receipt of which is
hereby acknowledged, the parties hereto agree as follows:
1. Definitions. (a) Unless otherwise defined herein, terms defined
in the Purchase Agreement are used herein as defined therein. For purposes of
this Agreement, the following terms have the meanings set forth below:
"CSO Registrable Securities" means (i) any Common Stock issued by the
Company or purchased by CSO from the Selling Securityholders under the Purchase
Agreement, and (ii) any other Common Stock acquired by CSO, including, without
limitation, any Common Stock issued or issuable with respect to the Common Stock
referred to in clause (i) above by way of a stock dividend or stock split, or in
connection with a combination of shares, recapitalization, merger,
consolidation, reorganization or similar event.
"Executive Registrable Securities" means (i) any Common Stock issued by
the Company to the Executives (or their permitted transferees) and/or issued in
the future to other employee shareholders of the Company and held by the Trust,
(ii) any Common Stock issued or issuable with respect to the Common Stock
referred to in clause (i) above by way of stock dividend or stock split, or in
connection with a combination of shares, recapitalization, merger,
consolidation, or other reorganization, and (iii) any other shares of Common
Stock held by the Executives (or their permitted transferees) or by the Trust.
<PAGE>
"Fund Registrable Securities" means (i) any Common Stock issued by the
Company to the Funds, (ii) any Common Stock issued or issuable with respect to
the Common Stock referred to in clause (i) above by way of stock dividend or
stock split or in connection with a combination of shares, recapitalization,
merger, consolidation, or other reorganization, and (iii) any other shares of
Common Stock held by the Funds.
"Public Offering" means any sale of capital stock of the Company to the
public pursuant to an effective registration statement filed under the
Securities Act.
"Registrable Securities" means the CSO Registrable Securities, Executive
Registrable Securities and the Fund Registrable Securities. As to any particular
Registrable Securities, such securities shall cease to be Registrable Securities
when they have been distributed to the public pursuant to a Public Offering or
sold to the public through a broker, dealer, or market maker in compliance with
Rule 144 under the Securities Act (or any similar rule then in force).
"Shareholders Agreement" means the 1997 Shareholders Agreement among
CSO, the Company, the Executives and the Funds dated as of the date hereof.
2. DEMAND REGISTRATIONS.
(a) REQUEST FOR REGISTRATION. At any time, and from time to time, after
the earlier of (i) January 12, 2000 or (ii) a Public Offering, the holders of
the Fund Registrable Securities or the holders of Executive Registrable
Securities, in each case who own, in the aggregate, not less than 25% of the
Fund Registrable Securities or Executive Registrable Securities then outstanding
may request registration under the Securities Act of all or part of their Fund
Registrable Securities or Executive Registrable Securities, respectively. Within
ten days after receipt of any such request (which shall specify the amount of
Registrable Securities to be registered), the Company shall give written notice
of such requested registration to all other holders of Registrable Securities
and shall include in such registration all Registrable Securities with respect
to which the Company has received written requests for inclusion therein within
15 days after the receipt of the Company's notice. All registrations requested
pursuant to this Section 2(a) are referred to herein as "Demand Registrations."
(b) DEMAND REGISTRATIONS. The holders of the Fund Registrable Securities
and the Executive Registrable Securities will each be entitled to have effected
up to three (3) Demand Registrations, provided, that at the time of such request
each of such groups of holders own, in the aggregate, not less than 5% of the
total outstanding shares of Common Stock. A registration will not count as one
of the permitted Demand Registrations until it has become effective, and a
registration initiated as one of the Demand Registrations will not count as one
of the permitted Demand Registrations unless the holders of the Fund Registrable
Securities or the Executive Registrable Securities, as the case may be, are able
to register and sell at least 50% of the Registrable Securities requested by
such holders to be included in such registration. All Demand Registrations shall
be underwritten registrations.
(c) PRIORITY ON DEMAND REGISTRATIONS. The Company shall not include in
any Demand Registration any securities which are not Registrable Securities
without the prior written consent of the holders of a majority of the
Registrable Securities initially requesting such registration. If in connection
with a Demand Registration the managing underwriters advise the Company and the
holders of Registrable Securities in writing that in their opinion the number of
Registrable Securities and, if permitted hereunder, other securities requested
to be included in such offering, exceeds the number of Registrable Securities
and other securities, if any, which can be sold in an orderly manner in such
offering within a price range
2
<PAGE>
acceptable to the holders of a majority of the Registrable Securities initially
requesting such registration, the Company shall include in such registration (i)
first, the Registrable Securities requested to be included in such registration,
allocated pro rata among the Funds, the holders of CSO Registrable Securities
and the Executives based on the number Registrable Securities owned, in the
aggregate, by the Funds, the holders of CSO Registrable Securities and the
Executives, respectively (with the Registrable Securities which are included in
the registration for the Funds, the holders of CSO Registrable Securities and
the Executives being allocated among the holders within each such group pro rata
based on the number of Registrable Securities owned by each holder within the
group or in such other manner as the holders within each group shall otherwise
agree), and (ii) second, other securities requested to be included in such
registration.
(d) RESTRICTIONS ON DEMAND REGISTRATIONS. The Company shall not be
obligated to effect any Demand Registration within six months after (i) the
effective date of a previous Demand Registration, (ii) the effective date of an
S-3 Registration (as defined in Section 4(a) hereof), or (iii) a registration in
which the holders of Registrable Securities initially requesting such
registration were given piggyback rights pursuant to Section 3 and in which
there was no reduction in the number of holders of Registrable Securities
initially requesting such registration requested to be included. The Company may
postpone for up to 90 days the filing or the effectiveness of a registration
statement for a Demand Registration if the Company and the holders of a majority
of the Registrable Securities initially requesting such registration agree that
such Demand Registration would reasonably be expected to have a material adverse
effect on any proposal or plan by the Company or any of its Subsidiaries to
engage in any acquisition of assets (other than in the ordinary course of
business) or any merger, consolidation, tender offer or similar transaction;
provided, that in such event, the holders of the Registrable Securities
requesting such Demand Registration shall be entitled to withdraw such request
and, if such request is withdrawn, such Demand Registration shall not count as a
Demand Registration.
(e) SELECTION OF UNDERWRITERS. The holders of a majority of the
Registrable Securities included in any Demand Registration shall have the right
to recommend the investment banker(s) and manager(s) to administer the offering,
subject to the approval of the Company, which shall not be unreasonably
withheld, delayed or conditioned.
(f) OTHER REGISTRATION RIGHTS. Except as provided in this Agreement and
the CSO Registration Agreement, the Company shall not grant to any Person the
right to require the Company to register any equity securities of the Company,
or any securities convertible or exchangeable into or exercisable for such
securities, without the prior written consent of the holders of a majority of
all Registrable Securities; provided, that the Company may grant rights to other
Persons who agree to be bound by the provisions of Section 8(d) of this
Agreement or enter into a comparable agreement with the Company of which the
holders of Registrable Shares are a third-party beneficiary to (i) participate
in Piggyback Registrations so long as such rights are subordinate to the rights
of the holders of Registrable Securities with respect to such Piggyback
Registrations and (ii) request registrations so long as the holders of Fund
Registrable Securities and Executive Registrable Securities are entitled to
participate in any such registrations with such Persons pro rata on the basis of
the number of shares owned by such Persons and such participating holders of
Fund Registrable Securities and Executive Registrable Securities, as the case
may be (assuming for this purpose that all shares owned by all participating
holders of Registrable Securities are aggregated, on the one hand, and all
shares owned by all other Persons participating in such Registration are
aggregated, on the other hand).
(g) REGISTRATION STATEMENT FORM. If any Demand Registration which is
proposed by the Company to be effected by the filing of a registration statement
on Form S-3 (or any successor or similar short-form registration statement)
shall be in connection with an underwritten public offering, and if the managing
underwriter shall advise the Company in writing that, in its opinion, the use of
another form of registration statement is of material importance to the success
of such proposed offering, then such registration shall be effected on such
other form.
(h) EFFECTIVE REGISTRATION STATEMENT. A Demand Registration will not be
deemed to have been effected unless it has become effective; provided that if
within 180 days after it has become effective, the offering of Registrable
Securities pursuant to such registration is interfered with by any stop order,
injunction or other order or requirement of the Securities and Exchange
Commission or other governmental agency or court, such registration will be
deemed not to have been effected.
3. PIGGYBACK REGISTRATIONS.
(a) RIGHT TO PIGGYBACK. Whenever the Company proposes to register any of
its securities under the Securities Act (other than pursuant to a Demand
Registration or S-3 Registration requested by holders of Registrable Securities)
and the registration form to be used may be used for the registration of
Registrable Securities (a "Piggyback Registration"), the Company shall give
prompt written notice (in any event within three business days after its receipt
of notice of any exercise of demand registration rights other than under this
Agreement or the CSO Registration Agreement) to all holders of Registrable
Securities of its intention to effect such a registration and shall include in
such registration all Registrable Securities with respect to which the Company
has received written requests for inclusion therein within 15 days after such
holder's receipt of the Company's notice.
(b) PIGGYBACK NOT A DEMAND REGISTRATION. The exercise by holders of
Registrable Securities of their rights under this Section 3 shall not constitute
a Demand Registration under Section 2 hereof.
(c) PRIORITY ON PRIMARY REGISTRATIONS . If a Piggyback Registration is
an underwritten primary registration on behalf of the Company, and the managing
underwriters advise the Company and the holders of Registrable Securities in
writing that in their opinion the number of securities requested to be included
in such registration exceeds the number which can be sold in an orderly manner
in such offering within a price range acceptable to the Company, the Company
shall include in such registration (i) first, the securities the Company
proposes to sell, (ii) second, the Registrable Securities requested to be
included in such registration, allocated pro rata among the Funds, the holders
of CSO Registrable Securities and the Executives based on the number Registrable
Securities owned, in the aggregate, by the Funds, the holders of CSO Registrable
Securities and the Executives, respectively (with the Registrable Securities
which are included in the registration for the Funds, the holders of CSO
Registrable Securities and the Executives being allocated among the holders
within each such group pro rata based on the number of Registrable Securities
owned by each holder within the group or in such other manner as the holders
within each group shall otherwise agree), and (iii) third, other securities
requested to be included in such registration.
(d) PRIORITY ON SECONDARY REGISTRATIONS. If a Piggyback Registration is
an underwritten secondary registration on behalf of holders of the Company's
securities, and the managing underwriters advise the Company and the holders of
Registrable Securities in writing that in their opinion the number of securities
requested to be included in such registration exceeds the number which can be
sold in an orderly manner in such offering within a price range acceptable to
the holders of a majority of the securities initially requesting such
registration, the Company shall include in such registration (i) first, the
securities requested to be included therein by the holders requesting such
registration and the Registrable Securities requested to be included in such
registration, allocated pro rata among holders requesting the registration, the
Funds, the holders of CSO Registrable Securities and the Executives based on the
number Registrable Securities owned, in the aggregate, by the holders requesting
the registration, the Funds, the holders of CSO Registrable Securities and the
Executives, respectively (with the Registrable Securities which are included in
the registration for the holders requesting the registration, the Funds, the
holders of CSO Registrable Securities
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and the Executives being allocated among the holders within each such group pro
rata based on the number of Registrable Securities owned by each holder within
the group or in such other manner as the holders within each group shall
otherwise agree) and (ii) second, other securities requested to be included in
such registration.
(e) OTHER REGISTRATIONS. If the Company has filed a registration
statement with respect to Registrable Securities pursuant to Section 2 or 4 or
subject to this Section 3, and if such registration statement has not been
withdrawn or abandoned, the Company shall not file or cause to be effected any
other registration of any of its equity securities or securities convertible or
exchangeable into or exercisable for its equity securities under the Securities
Act (except on Form S-8 or any successor form), whether on its own behalf or at
the request of any holder or holders of such securities, until a period of at
least six months has elapsed from the effective date of such previous
registration statement.
4. FORM S-3 REGISTRATIONS.
(a) If the Company becomes eligible to use Form S-3 under the Securities
Act or a comparable successor form, the Company shall use its reasonable best
efforts to continue to qualify at all times for registration of its capital
stock on Form S-3 or such successor form. In such event, the holders of the Fund
Registrable Securities or the Executive Registrable Securities, in each case
owning at least 25% of the Fund Registrable Securities or the Executive
Registrable Securities, respectively, then outstanding shall have the right,
from time to time, to request and have effected up to three (3) registrations of
shares of their Registrable Securities on Form S-3 or such successor form (which
request shall specify the amount of such Registrable Securities to be
registered), provided that, at the time of such request, each of the holders of
the Fund Registrable Securities or the Executive Registrable Securities, as the
case may be, own, in the aggregate, not less than 5% of the total outstanding
shares of Common Stock. All registrations requested pursuant to this Section
4(a) are referred to herein as "S-3 Registrations." A registration will not
count as one of the permitted S-3 Registrations until it has become effective.
If so requested by any holder of Registrable Securities in connection with an
S-3 Registration, the Company shall take such steps as are required to register
such holder's Registrable Securities for sale on a delayed or continuous basis
under Rule 415 and shall take such steps as are required to keep such
registration effective until all of such holder's Registrable Securities
registered thereunder are sold. S-3 Registrations need not be underwritten
unless either the Company (if it includes shares in the S-3 Registration
pursuant to Section 4(b) hereof) or the holders of a majority of the Registrable
Securities demanding the registration request that it be underwritten.
(b) USE OF ALTERNATE REGISTRATION STATEMENTS; PRIORITY IN S-3
REGISTRATIONS. At the Company's option, the Company may elect to include in an
S-3 Registration, Common Stock to be issued by the Company and, if required in
order to effect the registration of such securities, cause the registration to
be made pursuant to a registration statement on Form S-l or S-2, which shall
count as one of the three (3) S-3 Registrations. If in connection with an
underwritten S-3 Registration the managing underwriters advise the Company and
the holders of Registrable Securities in writing that in their opinion the
number of Registrable Securities and, if permitted hereunder, other securities
requested to be included in such offering, exceeds the number of Registrable
Securities aud other securities, if any, which can be sold in an orderly manner
in such offering within a price range acceptable to the holders of a majority of
the Registrable Securities requesting such registration, the Company shall
include in such registration (i) first, the Registrable Securities requested to
be included in such registration, allocated pro rata among the Funds, the
holders of CSO Registrable Securities and the Executives based on the number
Registrable Securities owned, in the aggregate, by the Funds, the holders of CSO
Registrable Securities and the Executives, respectively (with the Registrable
Securities which are included in the registration for the Funds, the holders of
CSO Registrable Securities and the Executives being allocated among the holders
within each such group pro rata based on the number of Registrable Securities
owned by each holder within the group or in such other manner as the holders
within
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each group shall otherwise agree), and (ii) second, other securities requested
to be included in such registration.
(c) RESTRICTIONS ON S-3 REGISTRATIONS. The Company shall not be
obligated to effect any S-3 Registration within six months after (i) the
effective date of a previous Demand Registration, (ii) the effective date of a
previous S-3 Registration hereof; or (iii) a registration in which the holders
of Registrable Securities were given piggyback rights pursuant to Section 3 and
in which there was no reduction in the number of Registrable Securities
requested to be included. The Company may postpone for up to 90 days the filing
or the effectiveness of a registration statement for an S-3 Registration if the
Company and the holders of a majority of the Registrable Securities agree that
such S-3 Registration would reasonably be expected to have a material adverse
effect on any proposal or plan by the Company or any of its Subsidiaries to
engage in any acquisition of assets (other than in the ordinary course of
business) or any merger, consolidation, tender offer or similar transaction;
provided that in such event, the holders of the Registrable Securities
requesting such S-3 Registration shall be entitled to withdraw such request and,
if such request is withdrawn, such S-3 Registration shall not count as an S-3
Registration.
(d) SELECTION OF UNDERWRITERS. If an underwriter is requested pursuant
to Section 4(a) hereof, the holders of a majority of the Registrable Securities
included in the S-3 Registration shall have the right to recommend the
investment banker(s) and manager(s) to administer the offering, subject to the
approval of the Company, which shall not be unreasonably withheld, delayed or
conditioned.
(e) EFFECTIVE REGISTRATION STATEMENT. An S-3 Registration will not be
deemed to have been effected unless it has become effective; provided that if
within 180 days after it has become effective, the offering of Registrable
Securities pursuant to such registration is interfered with by any stop order,
injunction or other order or requirement of the Securities and Exchange
Commission or other governmental agency or court, such registration will be
deemed not to have been effected.
5. HOLDBACK AGREEMENTS. Each holder of Registrable Securities agrees not
to effect any public sale or distribution of equity securities of the Company,
or any securities convertible into or exchangeable or exercisable for such
securities, during the seven days prior to and the 90-day period beginning on
the effective date of the first registration statement of the Company declared
effective under the Securities Act unless the underwriters managing the related
offering otherwise agree; provided that the holders of the Registrable
Securities shall not be so restricted unless comparable agreements are entered
into by each executive officer and director of the Company and each holder of at
least 2% (on a fully-diluted basis) of its equity securities, or any securities
convertible into or exchangeable or exercisable for such securities, purchased
from the Company at any time after the date hereof.
6. REGISTRATION PROCEDURES.
(a) Whenever the holders of Registrable Securities have requested that
any Registrable Securities be registered pursuant to this Agreement, the Company
shall use its best efforts to effect the registration and the sale of such
Registrable Securities in accordance with the intended method or disposition
thereof, and pursuant thereto the Company shall as expeditiously as possible:
(i) prepare and file with the Securities and Exchange Commission
a registration statement with respect to such Registrable Securities and use its
best efforts to cause such registration statement to become effective (provided
that before filing a registration statement or prospectus or any amendments or
supplements thereto, the Company shall furnish to one counsel selected by the
holders of Registrable Securities covered by such registration statement copies
of all such documents proposed to be filed, which documents shall be subject to
the review and approval of such counsel);
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(ii) prepare and file with the Securities and Exchange Commission
such amendments and supplements to such registration statement and the
prospectus used in connection therewith as may be necessary to keep such
registration statement effective for a period of not less than six months and
comply with the provisions of the Securities Act, the Securities Exchange Act of
1934, as amended (the "Exchange Act"), and the rules and regulations promulgated
thereunder with respect to the disposition of all securities covered by such
registration statement during such period in accordance with the intended
methods of disposition by the sellers thereof disclosed to the Company by such
sellers or set forth in such registration statement;
(iii) furnish to each seller of Registrable Securities such
number of copies of such registration statement, each amendment and supplement
thereto (in each case including all exhibits), the prospectus included in such
registration statement (including each preliminary prospectus and summary
prospectus) in conformity with the requirements of the Securities Act, and such
other documents as such seller may reasonably request in order to facilitate the
disposition of the Registrable Securities owned by such seller;
(iv) use its best efforts to register or qualify such Registrable
Securities under such other securities or blue sky laws of such jurisdictions as
any seller and the managing underwriter or underwriters may reasonably request
and do any and all other acts and things which may be reasonably necessary or
advisable to enable such seller to consummate the disposition in such
jurisdictions of the Registrable Securities owned by such seller; provided that
the Company shall not be required to (i) qualify generally to do business in any
jurisdiction where it would not otherwise be required to qualify but for this
subsection, or (ii) subject itself to taxation in any such jurisdiction;
(v) notify each seller of such Registrable Securities and the
managing underwriter or underwriters, at any time when a prospectus relating
thereto is required to be delivered under the Securities Act, of the happening
of any event as a result of which the prospectus included in such registration
statement contains an untrue statement of a material fact or omits to state any
fact required to be stated therein to make the statements therein not misleading
in the light of the circumstances then existing, and, at the request of any such
seller, the Company shall prepare a supplement or amendment to such prospectus
so that, as thereafter delivered to the purchaser of such Registrable
Securities, such prospectus shall not contain an untrue statement of a material
fact or omit to state any fact required to be stated therein to make the
statements therein not misleading in the light of the circumstances then
existing;
(vi) cause all such Registrable Securities to be listed on each
securities exchange (including the NASDAQ National Market) on which similar
securities issued by the Company are then listed and, if not so listed, to be
listed on the NASD automated quotation system;
(vii) provide a transfer agent and registrar for all such
Registrable Securities not later than the effective date of such registration
statement;
(viii) enter into such customary agreements (including
underwriting agreements in customary form) and take all such other actions as
the holders of a majority of the Registrable Securities being sold or the
underwriters, if any, reasonably request in order to expedite or facilitate the
disposition of such Registrable Securities (including effecting a stock split or
a combination of shares);
(ix) make available for inspection by any seller of Registrable
Securities, any underwriter participating in any disposition pursuant to such
registration statement and any attorney, accountant or other agent retained by
any such seller or underwriter, all financial and other records, pertinent
corporate documents and properties of the Company, and cause the Company's
officers, directors, employees, attorneys
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and independent accountants to supply all information reasonably requested (and
not privileged in the case of information from attorneys) by any such seller,
underwriter, attorney, accountant or agent in connection with such registration
statement;
(x) otherwise use its best efforts to comply with all applicable
rules and regulations of the Securities and Exchange Commission, and make
available to its security holders, as soon as reasonably practicable, an
earnings statement covering the period of at least twelve months beginning with
the first day of the Company's first full calendar quarter after the effective
date of the registration statement, which earnings statement shall satisfy the
provisions of Section 11(a) of the Securities Act and the rules and regulations
promulgated thereunder;
(xi) obtain for the benefit of the holders of Registrable
Securities included in the registration 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 holders of a
majority of the Registrable Securities being sold reasonably request;
(xii) obtain for the benefit of the holders of Registrable
Securities included in the registration an opinion of counsel in customary form
and covering such matters of the type customarily covered by underwriters in an
underwritten public offering; and
(xiii) if any such registration or comparable statement refers to
any holder of Registrable Securities by name or otherwise as the holder of any
securities of the Company and if in its sole and exclusive judgment, such holder
is or might be deemed to be a controlling Person of the Company, such holder
shall have the right to require (A) the insertion therein of language, in form
and substance satisfactory to such holder and presented to the Company in
writing, to the effect that the holding by such holder of such securities is not
to be construed as a recommendation by such holder of the investment quality of
the Company's securities covered thereby and that such holding does not imply
that such holder shall assist in meeting any future financial requirements of
the Company or (B) in the event that such reference to such holder by name or
otherwise is not required by the Securities Act or any similar federal statute
then in force, the deletion of the reference to such holder; provided that with
respect to this clause (B) such holder shall furnish to the Company an opinion
of counsel to such effect, which opinion of counsel shall be reasonably
satisfactory to the Company.
(b) Each seller of Registrable Securities agrees that, upon receipt of
any notice from the Company of the happening of any event of the type described
in clause (v) of Section 6(a) hereof, such seller shall forthwith discontinue
disposition of such Registrable Securities covered by such registration
statement or related prospectus until such seller's receipt of the copies of the
supplemental or amended prospectus contemplated by clause (v) of Section 6(a)
hereof, and, if so directed by the Company, such seller will deliver to the
Company (at the Company's expense) all copies, other than permanent file copies
then in such seller'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 period mentioned in clause (ii) of
Section 6(a) hereof shall be extended by the number of days during the period
from and including the date of the giving of such notice pursuant to clause (v)
of Section 6(a) hereof and including the date when each seller of Registrable
Securities shall have received the copies of the supplemental or amended
prospectus contemplated by clause (v) of Section 6(a) hereof.
(c) Each seller of Registrable Securities agrees to provide the
Company, upon receipt of its request, with such information about such seller as
is necessary to enable the Company to comply with the requirements of the
Securities Act and to execute such certificates as the Company may reasonably
request in connection with such information and otherwise to satisfy any
requirements of law.
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7. REGISTRATION EXPENSES.
(a) PAYMENT OF REGISTRATION EXPENSES. All expenses incident to the
Company's performance of or compliance with this Agreement, including all
registration and filing fees, fees and expenses of compliance with securities or
blue sky laws, printing expenses, messenger and delivery expenses, fees and
disbursements of counsel for the Company and all independent certified public
accountants, underwriters (excluding discounts and commissions) and other
Persons retained by the Company, internal expenses, liability insurance and the
expenses and fees for listing the securities to be registered on each securities
exchange (including the NASDAQ National Market) on which similar securities
issued by the Company are then listed or, if not so listed, on the NASD
automated quotation system (all such expenses being herein called "Registration
Expenses"), shall be borne by the Company or such holders of Registrable
Securities or other securities included in the registration (other than holders
of Registrable Securities) with whom the Company has agreements regarding the
payment of such Registration Expenses.
(b) COUNSEL TO HOLDERS. In connection with each Demand Registration, S-3
Registration and each Piggyback Registration in which only the Company and
holders of Registrable Securities participate, the Company shall reimburse the
holders of Registrable Securities covered by such registration for the
reasonable fees and disbursements of one counsel chosen by the holders of a
majority of the Registrable Securities requested to be included in such
registration; provided such counsel shall agree to represent the other holders
of Registrable Securities or other securities included in such registration if
requested by such other holders. In connection with each Piggyback Registration
in which holders of Registrable Securities participate which is not subject to
the preceding sentence, the Company shall arrange for the holders of Registrable
Securities covered by such registration to be represented, jointly with holders
of other securities included in such registration and without expense to the
holders of the Registrable Securities included in such registration, by counsel
acceptable to the holders of a majority of the Registrable Securities requested
to be included in such registration, which acceptance shall not be unreasonably
withheld.
8. INDEMNIFICATION.
(a) The Company agrees to indemnify, to the extent permitted by law,
each holder of Registrable Securities, its officers and directors, general and
limited partners, employees and agents and each Person who controls such holder
(within the meaning of the Securities Act or the Exchange Act) against any and
all losses, claims, damages, liabilities and expenses (including any amount paid
in settlement of any action, suit or proceeding or any claim asserted subject to
Section 8(c) below) arising out of or based upon (i) any untrue or alleged
untrue statement of material fact contained in any registration statement,
prospectus or preliminary prospectus or any amendment thereof or supplement
thereto, (ii) any omission or alleged omission of a material fact required to be
stated therein or necessary to make the statements therein not misleading in the
light of the circumstances then existing or (iii) any violation by the Company
of the Securities Act or any rule or regulation thereunder in connection with
such registration, and the Company will reimburse such Persons for any legal or
any other expenses reasonably incurred by it in connection with investigating or
defending any such loss, claim, liability, action or proceeding or enforcing its
rights under this Section 8; provided, that the Company shall not be liable to
any Person in any such case to the extent that any such loss, claim, damage,
liability (or action or proceeding in respect thereof) or expense arises out of
or is based upon any untrue statement or alleged untrue statement or omission or
alleged omission made in such registration statement or amendment or supplement
thereto or in any such preliminary, final or summary prospectus in reliance upon
and in conformity with written information with respect to such seller furnished
to the Company by such seller expressly for use in the preparation thereof. In
connection with an underwritten offering, the Company shall indemnify such
underwriters, their officers and directors, general and limited partners,
employees and agents and each Person who controls such underwriters (within the
meaning of the Securities Act or the Exchange Act) to the same extent as
provided above with respect to the indemnification
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of the holders of Registrable Securities.
(b) In connection with any registration statement in which a holder of
Registrable Securities is participating, each such holder shall furnish to the
Company in writing such information and affidavits as the Company reasonably
requests for use in connection with any such registration statement or
prospectus and, to the extent permitted by law, shall indemnify the Company, its
directors and officers and each Person who controls the Company (within the
meaning of the Securities Act) against any losses, claims, damages, liabilities
and expenses resulting from any untrue or alleged untrue statement of material
fact contained in the registration statement, prospectus or preliminary
prospectus or any amendment thereof or supplement thereto or any omission or
alleged omission of a material fact required to be stated therein or necessary
to make the statements therein not misleading, but only to the extent that such
untrue statement or omission is contained in any information or affidavit so
furnished in writing by such holder expressly for use in such Registration
Statement, provided that the obligation to indemnification shall be individual
to each holder and shall be limited to the net amount of proceeds received by
such holder from the sale of Registrable Securities pursuant to such
registration statement.
(c) Any Person entitled to indemnification hereunder shall (i) give
prompt written notice to the indemnifying party of any claim with respect to
which it seeks indemnification; provided that the failure of the indemnified
party to give notice as provided herein shall not relieve the indemnifying party
of its obligations under the preceding subsections of this Section 8, except to
the extent that the indemnifying party is actually prejudiced by such failure to
give notice and (ii) unless in such indemnified party's reasonable judgment a
conflict of interest between such indemnified and indemnifying parties may exist
with respect to such claim, permit such indemnifying party to assume the defense
of such claim with counsel reasonably satisfactory to the indemnified party. If
such defense is assumed, the indemnifying party shall not be subject to any
liability for any settlement made by the indemnified party without its consent
(but such consent shall not be unreasonably withheld). An indemnifying party who
is not entitled to, or elects not, to assume the defense of a claim shall not be
obligated to pay the fees and expenses of more than one counsel for all parties
indemnified by such indemnifying party with respect to such claim, unless in the
reasonable judgment of any indemnifying party, a conflict of interest may exist
between such indemnified party and any other of such indemnified parties with
respect to such claim.
(d) The indemnification provided for under this Agreement shall remain
in full force and effect regardless of any investigation made by or on behalf of
the indemnified party or any officer, director or controlling Person of such
indemnified party and shall survive the transfer of securities. If the
indemnification provided for in this Section 8 for any reason is held by a court
of competent jurisdiction to be unavailable to an indemnified party in respect
of any losses, claims, damages, expenses or liabilities referred to therein,
then each indemnifying party under this Section 8, in lieu of indemnifying such
indemnified party hereunder, shall contribute to the amount paid or payable by
such indemnified party as a result of such losses, claims, damages, expenses or
liabilities in such proportion as is appropriate to reflect (i) the relative
benefits received by the Company, the holders of Registrable Securities or other
securities sold in an offering (the "Selling Holders") and the underwriters from
the offering, (ii) the relative fault of the Company, the Selling Holders and
the underwriters in connection with the statements or omissions which resulted
in such losses, claims, damages, expenses or liabilities, and (iii) any other
relevant equitable considerations. The relative benefits received by the
Company, the Selling Holders and the underwriters shall be deemed to be in the
same respective proportions as the net proceeds from the offering (before
deducting expenses) received by the Company and the Selling Holders and the
underwriting discount received by the underwriters, in each case as set forth in
the table on the cover page of the applicable prospectus, bear to the aggregate
public offering price of the securities sold in the offering. The relative fault
of the Company, the Selling Holders and the underwriters 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
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fact relates to information supplied by the Company, the Selling Holders or the
underwriters and the parties' relative intent, knowledge, access to information
and opportunity to correct or prevent such statement or omission. The Company
and the holders of the Registrable Securities agree that it would not be just
and equitable if contribution pursuant to this Section 8 were determined by pro
rata or per capita allocation or by any other method of allocation which does
not take account of the equitable considerations referred to in this subsection.
In no event, however, shall a Selling Holder be required to contribute any
amount under this Section 8 in excess of the net amount of proceeds received by
such Selling Holder from its sale of securities under such registration
statement. No Person found 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.
(e) Indemnification similar to that specified in the preceding
subsections of this Section 8 (with appropriate modifications) shall be given by
the Company and each seller of Registrable Securities with respect to any
required registration or other qualification of securities under any federal or
state law or regulation or governmental authority other than the Securities Act.
(f) The obligations of the parties under this Section 8 shall be in
addition to any liability which any party may otherwise have to any other party.
9. PARTICIPATION IN UNDERWRITTEN REGISTRATIONS. No Person may
participate in any registration hereunder which is underwritten unless such
Person (a) agrees to sell such Person's securities on the basis provided in any
underwriting arrangements approved by the Person or Persons entitled hereunder
to approve such arrangements and (b) completes and executes all questionnaires,
powers of attorney, indemnities, underwriting agreements and other documents
required under the terms of such underwriting arrangements; provided that no
holder of Registrable Securities included in any underwritten registration shall
be required to make any representations or warranties to the Company or the
underwriters other than representations and warranties regarding such holder and
such holder's intended method of distribution.
10. RULES 144 AND 144A:.
(a) RULE 144. The Company covenants that it will file the reports
required to be filed by it under the Securities Act and the Exchange Act and the
rules and regulations promulgated thereunder (or, if the Company is not required
to file such reports, it will, upon the request of any holder of Registrable
Securities, make publicly available such information), and it will take such
further action as any holder may reasonably request, all to the extent required
from time to time to enable such holder to sell Registrable Securities without
registration under the Securities Act within the limitation of the exemptions
provided by (i) Rule 144 under the Securities Act, as such Rule may be amended
from time to time, or (ii) any similar rule or regulation hereafter adopted by
the Securities and Exchange Commission. Upon the request of any holder of
Registrable Securities from time to time, the Company will deliver to any such
holder (i) a written statement as to whether it has complied with such
requirements, and (ii) at the Company's expense, an opinion of the Company's
counsel as to the availability of an exemption from registration in connection
with a proposed transfer of Registrable Securities by such holder.
Notwithstanding anything contained in this Section 10, the Company may
deregister under Section 12 of the Exchange Act if it then is permitted to do so
pursuant to the Exchange Act and the rules and regulations promulgated
thereunder.
(b) RULE 144A. The Company shall, at all times during which it is
neither subject to the reporting requirements of Section 13 or 15(d) of the
Exchange Act, nor exempt from reporting pursuant to Rule 12g3-2(b) under the
Exchange Act, promptly upon the written request of any holder of Registrable
Securities, provide in writing to such holder and to any prospective transferee
of any of the Registrable Securities of such holder the information concerning
the Company described in Rule 144A(d)(4) under the
11
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Securities Act ("Rule 144A Information"). The Company also shall, upon the
written request of any such holder, cooperate with and assist such holder or any
member of the National Association of Securities Dealers, Inc. PORTAL system in
applying to designate and thereafter maintain the eligibility of the Common
Stock for trading through PORTAL. The Company's obligations under this Section
10(b) shall at all times be contingent upon receipt from the prospective
transferees of Registrable Securities of a written agreement to take all
reasonable precautions to safeguard the Rule 144 Information from disclosure to
anyone other than Persons who will assist such transferee in evaluation the
purchase of the Registrable Securities.
11. MISCELLANEOUS.
(a) NO INCONSISTENT AGREEMENTS. The Company shall not hereafter enter
into any agreement with respect to its securities which is inconsistent with or
violates the rights granted to the holders of Registrable Securities under this
Agreement.
(b) ADJUSTMENTS AFFECTING REGISTRABLE SECURITIES. The Company shall not
take any action, or permit any change to occur, with respect to its securities
which would materially and adversely affect the ability of the holders of
Registrable Securities to include such Registrable Securities in a registration
undertaken pursuant to this Agreement or which would materially and adversely
affect the marketability of such Registrable Securities in any such registration
(including affecting a stock split or a combination of shares).
(c) REMEDIES. Any Person having any rights under any provision of this
Agreement shall be entitled to enforce such rights specifically, to recover
damages caused by reason of any breach of any provision of this Agreement and to
exercise all other rights granted by law. The parties hereto agree and
acknowledge that money damages may not be an adequate remedy for any breach of
the provisions of this Agreement and that any party may in its sole discretion
apply to any court of law or equity of competent jurisdiction (without posting
any bond or other security) for specific performance and for other injunctive
relief in order to enforce or prevent violation of the provisions of this
Agreement.
(d) CONSENT TO AMENDMENTS. Except as otherwise expressly provided
herein, no modification, amendment or waiver of any provision of this Agreement
shall be effective against the Company or the holders of the Registrable
Securities unless such modification, amendment or waiver is approved in writing
by the Company and the holders of a majority of the Fund Registrable Securities
and Executive Registrable Securities. The failure of any party to enforce any of
the provisions of this Agreement shall not affect the right of such party
thereafter to enforce each and every provision of this Agreement in accordance
with its terms.
(e) SUCCESSORS AND ASSIGNS. The provisions of this Agreement shall be
binding upon and shall inure to the benefit of the parties hereto and their
respective successors and assigns. In addition, whether or not any express
assignment has been made, the provisions of this Agreement which are for the
benefit of purchasers or holders of Registrable Securities are also for the
benefit of, and enforceable by, any subsequent holder of Registrable Securities;
provided, that subsequent holders of Registrable Securities shall be permitted
to have their shares registered pursuant to this Agreement only if they agree in
writing to be bound by the terms of this Agreement (including without limitation
Section 8(b) hereof) if requested by the Company.
(f) SEVERABILITY. Any provision of this Agreement which is prohibited or
unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective
to the extent of such prohibition or unenforceability without invalidating the
remaining provisions hereof, and any such prohibition or unenforceability in any
jurisdiction shall not invalidate or render unenforceable such provisions in any
other jurisdiction.
12
<PAGE>
(g) COUNTERPARTS. This Agreement may be executed in two or more
counterparts, and by different parties on separate counterparts, each of which
shall be deemed an original, and all of which shall constitute one and the same
agreement.
(h) GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED
AND INTERPRETED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK WITHOUT
REGARD TO THE PRINCIPLES OF CONFLICTS OF LAW THEREOF.
(i) SECTION HEADINGS. The Section headings of this Agreement are
inserted for convenience only and do not constitute a part of this Agreement.
(j) Notices. All notices, requests and demands to or upon the respective
parties hereto to be effective shall be in writing and shall be either
personally delivered or sent by reputable overnight courier service (charges
prepaid) or by confirmed facsimile transmission to the recipient at the address
for such recipient set forth below and to any subsequent holder of Registrable
Securities subject to this Agreement at such address as indicated by the
Company's records, or at such address or to the attention of such other Person
as the recipient party has specified by prior written notice to the sending
party. Notices shall be deemed to have been given hereunder when delivered
personally or by confirmed facsimile transmission and one day after deposit with
a reputable overnight courier service.
If to the Funds:
c/o First Reserve Partnerships
475 Steamboat Road
Greenwich, Connecticut 06830
Attention:William E. Macaulay
If to the Executives:
Cal Dive International,, Inc.
13430 Northwest Freeway
Suite 350
Houston, Texas 77040
Attention:Owen Kratz
Facsimile No: (713) 690-2204
If to the Company:
Cal Dive International,, Inc.
13430 Northwest Freeway
Suite 350
Houston, Texas 77040
Attention:Owen Kratz
Facsimile No: (713) 690-2204
or to such other address or to the attention of such other Person as the
recipient party has specified by prior written notice to the sending
party.
12. JOINDER CONSENT AND WAIVER OF CSO. By its execution of this
Agreement, CSO hereby (i) consents, pursuant to Section 2(f) of the 1997
Registration Agreement, and (ii) waives the application of
13
<PAGE>
Sections 11(a) and 11(b) of the 1997 Registration Agreement, evidencing its
consent, as required pursuant to Sections 2(f), 11(a) and 11(b) of the 1997
Registration Agreement, to the Company entering into this Agreement and granting
to the Funds and Executives the registration rights described herein, and agrees
to be bound by the terms of this Section 12. The parties agree that this
Agreement and the 1997 Registration Agreement are to be interpreted together so
as to provide holders of Fund Registrable Securities, Executive Registrable
Securities and CSO Registrable Securities with equal registration rights with
respect to all registrations of Registrable Securities by the Company, except as
expressly provided otherwise herein or therein. Without limiting the generality
of the foregoing, CSO agrees that in any demand registration under Section 2 of
the 1997 Registration Agreement or in any registration in which the holders of
CSO Registrable Securities exercise their rights under Section 3 of the 1997
Registration Agreement, in each case where holders of the Fund Registrable
Securities or Executive Registrable Securities participate in such registration
pursuant to Section 3 of this Agreement, Section 2(c), 3(c) or 3(d) of this
Agreement, as applicable, shall govern the determination of the Registrable
Securities to be included in such registration so that the Funds, the Executives
and the holders of CSO Registrable Securities have the same priority in such
registrations.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first written above.
CAL DIVE INTERNATIONAL, INC.
By:/s/ Owen Kratz
Owen Kratz, President
14
<PAGE>
FIRST RESERVE SECURED ENERGY ASSETS FUND, LIMITED PARTNERSHIP
By: FIRST RESERVE CORPORATION, as General Partner
By:/s/ David H. Kennedy
David H. Kennedy, Managing Director
FIRST RESERVE FUND V, LIMITED PARTNERSHIP
By: FIRST RESERVE CORPORATION, as General Partner
By:/s/ David H. Kennedy
David H. Kennedy, Managing Director
FIRST RESERVE FUND V-2, LIMITED PARTNERSHIP
By: FIRST RESERVE CORPORATION, as General Partner
By:/s/ David H. Kennedy
David H. Kennedy, Managing Director
FIRST RESERVE FUND VI, LIMITED PARTNERSHIP
By: FIRST RESERVE CORPORATION, as General Partner
By:/s/ David H. Kennedy
David H. Kennedy, Managing Director
15
<PAGE>
EXECUTIVES
/s/Gerald G. Reuhl
- --------------------------------------------------
Gerald G. Reuhl individually and as
Trustee of the Trust
/s/ Owen Kratz
- --------------------------------------------------
Owen Kratz, Individually and as
Trustee of the Trust
/s/ S. James Nelson
- --------------------------------------------------
S. James Nelson, Individually and as
Trustee of the Trust
FOR PURPOSES OF THE CONSENT IN SECTION 12 HEREOF.
COFLEXIP
/s/ Pierre Marie Valentin
- --------------------------------------------------------
By: Pierre Marie Valentin
Title: Chairman and Chief Executive Officer
16
EXHIBIT 5.1
[CALDIVE INTERNATIONAL LETTERHEAD]
May 21, 1998
Cal Dive International, Inc.
400 N. Sam Houston Parkway E.
Suite 400
Houston, Texas 77060
Gentlemen:
I am acting as General Counsel for Cal Dive
International, Inc., a Minnesota corporation (the "Company"), and
give this opinion in connection with the registration under the
Securities Act of 1933, as amended (the "Act"), of up to 2,867,070
shares of the Company's common stock, no par value per share (the
"Common Stock"), to be offered upon the terms and subject to the
conditions set forth in the Company's Registration Statement on
Form S-1 (Registration No. 333-50751) (the "Registration
Statement") relating thereto filed with the U.S. Securities and
Exchange Commission.
In connection therewith, I have examined originals or
copies certified or otherwise identified to my satisfaction of the
Amended and Restated Articles of incorporation of the Company, the
Bylaws of the Company, the corporate proceedings with respect to
the offering of shares and such other documents and instruments as
I have deemed necessary or appropriate for the expression of the
opinions contained herein.
I have assumed the authenticity and completeness of all
records, certificates and other instruments submitted to me as
originals, the conformity to original documents of all records,
certificates and other instruments submitted to me as copies; the
authenticity and completeness of the originals of those records,
certificates and other instruments submitted to me as copies and
the correctness of all statements of fact contained in all records,
certificates and other instruments that I have examined.
Based on the foregoing examination, I am of the opinion
that the 2,867,070 shares of Common Stock (including the 373,966
shares subject to the underwriters' over-allotment option)
<PAGE>
Cal Dive International, Inc.
May 21, 1998
Page 2
proposed to be sold by certain holders of securities of the Company
have been duly and validly issued, and are fully paid and
nonassessable.
I hereby consent to the filing of this opinion as an
exhibit to the Registration Statement and to the references to me
under the caption "Legal Opinions" in the Prospectus included as
part of the Registration Statement.
Very truly yours,
/s/Andrew C. Becher
-------------------------
Andrew C. Becher
Senior Vice President
and General Counsel
ACB:sg
