UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d)
of the Securities Exchange Act of 1934
Date of Report (date of earliest event reported): November 29, 2018
MCDERMOTT INTERNATIONAL, INC.
(Exact name of registrant as specified in its charter)
Republic of Panama | 001-08430 | 72-0593134 | ||
(State or other jurisdiction of incorporation) |
(Commission file number) |
(I.R.S. employer identification number) |
757 N. Eldridge Parkway Houston, Texas | 77079 | |
(Address of principal executive offices) | (Zip code) |
Registrants telephone number, including area code: (281) 870-5000
(Former name or former address, if changed since last report)
Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions:
☐ | Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425) |
☐ | Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12) |
☐ | Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b)) |
☐ | Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c)) |
Indicate by check mark whether the registrant is an emerging growth company as defined in Rule 405 of the Securities Act of 1933 (§230.405 of this chapter) or Rule 12b-2 of the Securities Exchange Act of 1934 (§240.12b-2 of this chapter).
Emerging growth company ☐
If an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards provided pursuant to Section 13(a) of the Exchange Act. ☐
Item 1.01 Entry into a Material Definitive Agreement
Securities Purchase Agreement
On November 29, 2018 (the Closing Date), McDermott International, Inc. (McDermott, we or us) completed its previously reported private placement (the Private Placement) of (1) 300,000 shares of 12% Redeemable Preferred Stock, par value $1.00 per share (the Redeemable Preferred Stock), and (2) Series A warrants (the Warrants) to purchase 6,773,094 shares of common stock of McDermott, par value $1.00 per share (Common Stock), with an initial exercise price per share of $0.01, for aggregate proceeds of $289.5 million, before payment of placement fees and related costs and expenses. These securities were issued pursuant to the Securities Purchase Agreement, dated as of October 30, 2018 (the Purchase Agreement), by and among McDermott and West Street Capital Partners VII Offshore Investments, L.P. (the Initial Purchaser). Prior to the closing of the Private Placement (the Closing), the Initial Purchaser assigned a portion of its rights and obligations under the Purchase Agreement to certain affiliates. McDermott intends to use the proceeds from the Private Placement for general corporate purposes, including the funding of working capital requirements. Concurrently with the closing of the Private Placement, we also completed the requirements for initial availability under the previously reported $230 million letter of credit agreement entered into on October 30, 2018.
Warrant Agreement
Pursuant to the Purchase Agreement, on the Closing Date, McDermott entered into a Warrant Agreement (the Warrant Agreement) with Computershare Inc. and Computershare Trust Company, N.A., to, among other things, authorize and establish the terms of the Warrants, subject to certain adjustments described below. The Warrants are exercisable at any time after the earlier of (1) any Change of Control (as defined in the Certificate of Designation relating to the Redeemable Preferred Stock) or the commencement of proceedings for the voluntary or involuntary dissolution, liquidation or winding up of the Company and (2) the first anniversary of the Closing Date, and from time to time, in whole or in part, until the tenth anniversary of the Closing Date.
The exercise price and the number of shares of Common Stock for which a Warrant is exercisable are subject to adjustment from time to time upon the occurrence of certain events including: (1) payment of a dividend or distribution to holders of shares of Common Stock payable in Common Stock, (2) the distribution of any rights, options or warrants to all holders of Common Stock entitling them for a period of not more than 60 days to purchase shares of Common Stock at a price per share less than the fair market value per share, (3) a subdivision, combination, or reclassification of Common Stock, (4) a distribution to all holders of Common Stock of cash, any shares of McDermotts capital stock (other than Common Stock), evidences of indebtedness or other assets of McDermott, and (5) any dividend of shares of a subsidiary of McDermott in a spin-off transaction.
The foregoing description of the Warrant Agreement does not purport to be complete and is qualified in its entirety by reference to the full text of the Warrant Agreement, which is filed as Exhibit 4.1 to this Current Report on Form 8-K and incorporated herein by reference.
Registration Rights Agreement
Pursuant to the Purchase Agreement, on the Closing Date, McDermott entered into a Registration Rights Agreement with the holders of the Warrants (the Registration Rights Agreement). The Registration Rights Agreement grants the holders of the Warrants certain registration rights for the shares of Common Stock issuable upon the exercise of the Warrants. The Registration Rights Agreement provides that McDermott will use its commercially reasonable efforts to prepare and file a shelf registration statement with the U.S. Securities and Exchange Commission (the SEC) within 90 days after the date of the Closing and to cause such shelf registration statement to be declared effective as soon as practicable after its filing (but in any event by the first anniversary of the Closing Date) to permit the public resale of registrable securities covered by the Registration Rights Agreement.
McDermott will generally be required to effect registrations for up to two underwritten offerings, provided that any such offering involves at least $25 million of registrable securities. McDermott has generally agreed to pay the related registration expenses and has also agreed to indemnify the holders of the Warrants for certain liabilities arising from such registrations.
The foregoing description of the Registration Rights Agreement does not purport to be complete and is qualified in its entirety by reference to the full text of the Registration Rights Agreement, which is filed as Exhibit 10.1 to this Current Report on Form 8-K and incorporated herein by reference.
Item 3.02 Unregistered Sales of Equity Securities
The information regarding the Private Placement set forth in Item 1.01 of this Current Report is incorporated by reference into this Item 3.02. The Private Placement of the Redeemable Preferred Stock and Warrants pursuant to the Purchase Agreement was undertaken in reliance upon an exemption from the registration requirements of the Securities Act of 1933, as amended (the Securities Act), pursuant to Section 4(a)(2) thereof. To the extent that any shares of Common Stock are issued upon exercise of the warrants by a Warrant holder, they will be issued in transactions anticipated to be exempt from registration under the Securities Act by virtue of Section 3(a)(9) thereof. The maximum number of shares of Common Stock that may be issued under the Warrants is described in Item 1.01.
Item 3.03 Material Modification to Rights of Security Holders
Pursuant to the Purchase Agreement, on the Closing Date, McDermott issued the Redeemable Preferred Stock, the terms of which are governed by the previously reported Certificate of Designation. As a result of the issuance of the Redeemable Preferred Stock, the rights of security holders are modified in accordance with the Certificate of Designation, which was described in McDermotts Current Report on Form 8-K filed with the SEC on October 31, 2018, attached as Exhibit 3.1 thereto and the terms of which are incorporated herein by reference.
Item 9.01 Financial Statements and Exhibits
(d) Exhibits.
SIGNATURE
Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.
MCDERMOTT INTERNATIONAL, INC. | ||
By: | /s/ Stuart Spence | |
Stuart Spence | ||
Executive Vice President and Chief Financial Officer |
Date: November 29, 2018
Exhibit 4.1
Execution Version
MCDERMOTT INTERNATIONAL, INC.
(as Issuer)
and
Computershare Inc. and Computershare Trust Company, N.A.
(as Warrant Agent)
Warrant Agreement
Dated as of November 29, 2018
Warrants Exercisable for
Shares of Common Stock
TABLE OF CONTENTS
Page
ARTICLE I DEFINITIONS |
1 | |||||
Section 1.01 |
Definitions | 1 | ||||
Section 1.02 |
Rules of Construction | 5 | ||||
ARTICLE II APPOINTMENT OF WARRANT AGENT |
6 | |||||
Section 2.01 |
Appointment of Warrant Agent | 6 | ||||
ARTICLE III THE WARRANTS |
6 | |||||
Section 3.01 |
Form and Dating; Legends | 6 | ||||
Section 3.02 |
Execution and Countersignature | 7 | ||||
Section 3.03 |
Warrant Registrar and Countersignature Agent | 7 | ||||
Section 3.04 |
Replacement Warrants | 7 | ||||
Section 3.05 |
Outstanding Warrants | 7 | ||||
Section 3.06 |
Cancellation | 8 | ||||
Section 3.07 |
CUSIP Numbers | 8 | ||||
Section 3.08 |
Registration, Transfer and Exchange | 8 | ||||
Section 3.09 |
Restrictions on Transfer and Exchange | 9 | ||||
ARTICLE IV SEPARATION OF WARRANTS; TERMS OF WARRANTS; EXERCISE OF WARRANTS |
10 | |||||
Section 4.01 |
Terms of Warrants; Exercise of Warrants | 10 | ||||
Section 4.02 |
Conditional Exercise | 13 | ||||
Section 4.03 |
Opinion of Counsel | 13 | ||||
Section 4.04 |
Cost Basis Information | 13 | ||||
ARTICLE V COVENANTS OF THE COMPANY |
13 | |||||
Section 5.01 |
Maintenance of Office or Agency | 13 | ||||
Section 5.02 |
Payment of Taxes | 14 | ||||
Section 5.03 |
Rule 144A(d)(4) Information | 14 | ||||
Section 5.04 |
Reservation of Warrant Shares | 14 | ||||
Section 5.05 |
Listing | 14 | ||||
Section 5.06 |
HSR Act | 15 | ||||
ARTICLE VI ADJUSTMENT OF EXERCISE PRICE AND NUMBER OF WARRANT SHARES ISSUABLE |
15 | |||||
Section 6.01 |
Adjustment to Number of Warrant Shares | 15 | ||||
Section 6.02 |
Fractional Interests | 21 | ||||
Section 6.03 |
Notices to Warrant Holders | 22 |
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Section 6.04 |
No Rights as Stockholders; Limitations of Liability | 23 | ||||
ARTICLE VII WARRANT AGENT |
23 | |||||
Section 7.01 |
Warrant Agent | 23 | ||||
Section 7.02 |
Compensation; Indemnity; Limitation on Liability | 25 | ||||
Section 7.03 |
Individual Rights of Warrant Agent | 26 | ||||
Section 7.04 |
Replacement of Warrant Agent | 26 | ||||
Section 7.05 |
Successor Warrant Agent by Merger | 27 | ||||
Section 7.06 |
Holder Lists | 28 | ||||
ARTICLE VIII MISCELLANEOUS |
28 | |||||
Section 8.01 |
Holder Actions | 28 | ||||
Section 8.02 |
Notices and Communications | 28 | ||||
Section 8.03 |
Entire Agreement | 30 | ||||
Section 8.04 |
Amendments, Supplements and Waivers | 30 | ||||
Section 8.05 |
Benefits of This Agreement | 32 | ||||
Section 8.06 |
Successors and Assigns | 32 | ||||
Section 8.07 |
Governing Law; Jurisdiction and Venue; Waiver of Jury Trial | 32 | ||||
Section 8.08 |
Severability | 33 | ||||
Section 8.09 |
Counterparts | 33 | ||||
Section 8.10 |
Table of Contents and Headings | 33 | ||||
Section 8.11 |
No Adverse Interpretation of Other Agreements | 33 | ||||
Section 8.12 |
No Presumption | 33 | ||||
Section 8.13 |
Obligations Limited to Parties to This Agreement and Holders | 33 | ||||
Section 8.14 |
Bank Accounts | 34 | ||||
Section 8.15 |
Further Assurances | 34 | ||||
Section 8.16 |
Confidentiality | 34 | ||||
Section 8.17 |
Force Majeure | 34 |
EXHIBITS |
Exhibit A Form of Series A Warrant |
Exhibit B Restricted Legend |
Exhibit C Rule 144A Certificate |
Exhibit D Accredited Investor Certificate |
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WARRANT AGREEMENT, dated as of November 29, 2018, among McDermott International, Inc., a corporation organized under the laws of the Republic of Panama (as further defined below, the Company), and Computershare Inc., a Delaware corporation (Computershare), and its wholly owned subsidiary Computershare Trust Company, N.A., a federally chartered trust company (collectively, the Warrant Agent).
WHEREAS, the Company proposes to issue Series A warrants (the Warrants), that upon exercise may be settled solely for shares of Common Stock (as defined herein) (the Common Stock issuable on exercise of the Warrants being referred to herein as the Warrant Shares) or, at the option of the Company, via net share settlement, to certain third-party purchasers; and
WHEREAS, the Company desires the Warrant Agent to act on behalf of the Company, and the Warrant Agent is willing so to act in connection with the issuance of the Warrants and other matters as provided herein;
NOW, THEREFORE, in consideration of the premises and the mutual agreements herein set forth, the parties hereto agree as follows:
ARTICLE I
DEFINITIONS
Section 1.01 Definitions. As used in this Agreement, the following terms shall have the following respective meanings.
act has the meaning set forth in Section 8.01.
Accredited Investor Certificate means a certificate substantially in the form of Exhibit D hereto.
Affiliate has the meaning assigned to such term, as of the date hereof, in Rule 405 under the Securities Act.
Agent means any Registrar or Countersignature Agent as the context so requires.
Agreement means this Warrant Agreement, as amended or supplemented from time to time.
Articles of Incorporation means the Amended and Restated Articles of Incorporation of the Company, as amended or modified.
Average VWAP per share over any specified period means the arithmetic average of the VWAP per share for each Trading Day in such period.
Board of Directors means the Board of Directors of the Company or, with respect to any action to be taken by the Board of Directors, any committee of the Board of Directors duly authorized to take such action.
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Business Combination means a merger, consolidation, business combination or similar transaction of the Company with another Person.
Business Day means any day other than a Saturday, Sunday, any federal legal holiday or day on which banking institutions in the State of New York or State of Texas are authorized or required by law or other governmental action to close.
Capital Stock means:
(1) | in the case of a corporation, corporate stock; |
(2) | in the case of an association or business entity, any and all shares, interests, participations, rights or other equivalents (however designated) of corporate stock; |
(3) | in the case of a partnership or limited liability company, partnership interests (whether general or limited) or membership interests, respectively; and |
(4) | any other interest or participation that confers on a Person the right to receive a share of the profits and losses of, or distributions of assets of, the issuing Person, but excluding from all of the foregoing any debt securities convertible into Capital Stock, whether or not such debt securities include any right of participation with Capital Stock. |
Certificate of Designation means the Certificate of Designation of 12% Redeemable Preferred Stock of the Company, dated as of October 30, 2018.
Closing Sale Price per share of the Common Stock means, as of any date, the closing sale price per share (or if no closing sale price is reported, the average of the closing bid and ask prices or, if more than one in either case, the average of the average closing bid and the average closing ask prices) on such date as reported (1) on the principal National Securities Exchange on which the Common Stock is traded, (2) if the Common Stock is not listed on a National Securities Exchange, on the principal regional securities exchange, or (3) if the Common Stock is not listed on a National Securities Exchange or regional securities exchange, in the over-the-counter market as reported by OTC Markets Group Inc. or a similar organization. In the absence of such a quotation, the Closing Sale Price shall be an amount determined by the Board of Directors to be the fair market value of a share of Common Stock.
Commission means the U.S. Securities and Exchange Commission.
Common Stock means the common stock, par value $1.00 per share, of the Company or any other Capital Stock of the Company into which such common stock shall be reclassified or changed.
Company means McDermott International, Inc., a corporation organized under the laws of the Republic of Panama, or any successor to the Company.
Computershare has the meaning assigned to such term in the recitals to this Agreement.
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Corporate Trust Office means the office of the Warrant Agent designated for the purposes contemplated hereunder, which at the Issue Date is located at 250 Royall Street, Canton, MA 02021.
Countersignature Agent refers to a Person engaged to countersign the Warrants in the stead of the Warrant Agent.
Ex-Date means, when used with respect to any issuance of or distribution in respect of the Common Stock or any other securities, the first date on which the Common Stock or such other securities trade without the right to receive such issuance or distribution.
Exchange Act means the U.S. Securities Exchange Act of 1934, as amended, and the rules and regulations of the Commission promulgated thereunder.
Exercise Notice has the meaning assigned to such term in Section 4.01(b).
Exercise Price means the exercise price for the Warrants as set forth on Exhibit A, subject to adjustment pursuant to Section 6.01.
Expiration Time has the meaning assigned to such term in Section 4.01(a).
Full Share Settlement has the meaning assigned to such term in Section 4.01(b).
Full Share Settlement Election has the meaning assigned to such term in Section 4.01(b).
Funds has the meaning assigned to such term in Section 8.14.
GAAP means accounting principles generally accepted in the United States.
Holder means the registered holder of any Warrant.
HSR Act has the meaning assigned to such term in Section 5.06.
Industry Competitor means a company engaged primarily in providing engineering, procurement and construction services to the energy industry or any holding company thereof or its Subsidiaries; provided, however, that for the avoidance of doubt, a private equity fund, financial institution, asset management firm or similar firm shall not be considered an Industry Competitor but any of its portfolio companies that are engaged primarily in providing engineering, procurement and construction services to the energy industry would be considered an Industry Competitor.
Issue Date means the date on which the Warrants are originally issued under this Agreement.
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Market Value means, the Average VWAP during a five consecutive Trading Day period ending on the Trading Day immediately prior to the date of determination, as reported (1) on the principal National Securities Exchange on which the Common Stock is traded, (2) if the Common Stock is not listed on a National Securities Exchange, on the principal regional securities exchange, or (3) if the Common Stock is not listed on a National Securities Exchange or regional securities exchange, in the over-the-counter market as reported by OTC Markets Group Inc. or a similar organization. In the absence of such a listing or reporting, the Market Value shall be an amount determined by the Board of Directors.
National Securities Exchange means an exchange registered with the Commission under Section 6(a) of the Exchange Act.
Net Share Settlement has the meaning assigned to such term in Section 4.01(b).
Net Share Settlement Election has the meaning assigned to such term in Section 4.01(b).
Officer means any of the Chief Executive Officer, the Chief Financial Officer, the Chief Accounting Officer and the General Counsel of the Company.
Officers Certificate means a certificate signed by two Officers, and delivered to the Warrant Agent, that meets the requirements set forth herein.
Opinion of Counsel means a written opinion of counsel who shall be reasonably acceptable to the Warrant Agent that meets the requirements set forth herein.
Pro Rata Repurchases means any purchase of shares of Common Stock by the Company or any Affiliate thereof pursuant to (i) any tender offer or exchange offer directed to all of the holders of Common Stock subject to Section 13(e) or 14(e) of the Exchange Act or Regulation 14E promulgated thereunder or (ii) any other tender offer available to substantially all holders of Common Stock, in the case of both (i) and (ii), whether for cash, shares of Capital Stock of the Company, other securities of the Company, evidences of indebtedness of the Company or any other Person or any other property (including shares of Capital Stock, other securities or evidences of indebtedness of a subsidiary), or any combination thereof, effected while the Warrants are outstanding. The Effective Date of a Pro Rata Repurchase shall mean the date of purchase with respect to any Pro Rata Purchase.
Person means any individual, corporation, company, voluntary association, partnership, joint venture, trust, limited liability company, unincorporated organization, government or any agency, instrumentality or political subdivision thereof or any other form of entity.
Purchase Agreement means the Securities Purchase Agreement, dated October 30, 2018, entered into by and among the Company and the purchasers party thereto.
Register means the register established by the Warrant Agent pursuant to Section 3.08.
Registrar means a Person engaged to maintain the Register.
Restricted Legend means the legend set forth in Exhibit B.
Rule 144 means Rule 144 promulgated under the Securities Act.
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Rule 144A means Rule 144A under the Securities Act.
Rule 144A Certificate means a certificate substantially in the form of Exhibit C hereto.
Securities Act means the U.S. Securities Act of 1933, as amended, and the rules and regulations of the Commission promulgated thereunder.
Trading Day means a day during which trading in securities generally occurs on the New York Stock Exchange or, if the Common Stock is not listed on the New York Stock Exchange, on the principal other National Securities Exchange or regional securities exchange on which the Common Stock is then listed or, if the Common Stock is not listed on a National Securities Exchange or regional securities exchange, on the principal other market on which the Common Stock is then traded. If the Common Stock is not so listed or traded, Trading Day shall mean a Business Day.
Transfer Agent has the meaning assigned to such term in Section 5.04(b).
Trigger Event has the meaning assigned to such term in Section 6.01(a)(viii).
VWAP per share of Common Stock on any Trading Day means the per share volume-weighted average price as displayed on Bloomberg page MDR <Equity> AQR (or its equivalent successor if such page is not available) in respect of the period from 9:30 a.m. to 4:00 p.m., New York City time, on such Trading Day; or, if such price is not available, VWAP means the market value per share of Common Stock on such Trading Day as determined, using a volume-weighted average method, by a nationally recognized independent investment banking firm retained by the Company for this purpose.
Warrant Agent means the party named as such in the first paragraph of this Agreement or any successor warrant agent under this Agreement pursuant to Article VII.
Warrant Shares has the meaning assigned to such term in the recitals to this Agreement.
Warrants has the meaning assigned to such term in the recitals to this Agreement.
Section 1.02 Rules of Construction. Unless the context otherwise requires, as used in this Agreement:
(a) a defined term has the meaning assigned to it for all purposes of this Agreement, regardless of where it is defined herein;
(b) all accounting terms not otherwise defined shall have the respective meanings assigned to them under GAAP;
(c) or is not exclusive but shall be used in the inclusive sense of and/or;
(d) defined terms and other words used in the singular shall be deemed to include the plural, and vice versa;
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(e) The terms herein, hereof and hereunder and words of similar import refer to this Agreement as a whole and not to any particular Article, Section or other subdivision of this Agreement;
(f) when the words include, includes or including are used herein, they shall be deemed to be followed by the phrase without limitation;
(g) unless expressly qualified otherwise (e.g., by Business or Trading), all references to days are deemed to be references to calendar days;
(h) all references to Sections or Articles or Exhibits refer to Sections or Articles or Exhibits of or to this Agreement unless otherwise indicated; and
(i) references to agreements or instruments, or to statutes or regulations, are to such agreements or instruments, or statutes or regulations, as amended, supplemented or modified from time to time (or to successor statutes and regulations).
ARTICLE II
APPOINTMENT OF WARRANT AGENT
Section 2.01 Appointment of Warrant Agent. The Company hereby appoints the Warrant Agent to act as agent for the Company with respect to the Warrants in accordance with the instructions set forth hereinafter in this Agreement and the Warrant Agent hereby accepts such appointment and shall perform the same in accordance with the express terms and conditions set forth in this Agreement.
ARTICLE III
THE WARRANTS
Section 3.01 Form and Dating; Legends. The Warrants will be categorized as Series A Warrants and, if certificated, will be substantially in the form attached as Exhibit A. The terms and provisions contained in the form of the Warrants attached as Exhibit A constitute, and are hereby expressly made, a part of this Agreement. The Warrants may have notations, legends or endorsements required by law, rules of or agreements with National Securities Exchanges to which the Company is subject, or usage. Each Warrant will be dated the date of its countersignature.
(a) Except as otherwise provided in Section 3.01(c) or Section 3.09, each Warrant will bear the Restricted Legend.
(b) If the Company determines (upon the advice of counsel and such other certifications and evidence as the Company may reasonably require) that a Warrant is eligible for resale pursuant to Rule 144 under the Securities Act (or a successor provision) without the need to satisfy current information or other requirements therein and that the Restricted Legend is no longer necessary or appropriate in order to ensure that subsequent transfers of the Warrant are effected in compliance with the Securities Act, the Company may instruct the Warrant Agent in writing to cancel the Warrant and issue to the Holder thereof (or to its transferee) a new Warrant of like tenor, registered in the name of the Holder thereof (or its transferee), that does not bear the Restricted Legend, and the Warrant Agent will comply with such instruction.
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(c) By its acceptance of any Warrant bearing the Restricted Legend, each Holder thereof and each owner of a beneficial interest therein acknowledges the restrictions on transfer of such Warrant set forth in this Agreement and in the Restricted Legend and agrees that it will transfer such Warrant only in accordance with this Agreement and such legend.
Section 3.02 Execution and Countersignature. (a) An Officer shall execute the Warrants for the Company by facsimile or manual signature in the name and on behalf of the Company. If an Officer whose signature is on a Warrant no longer holds that office after the time the Warrant is countersigned, the Warrant will still be valid.
(b) A Warrant will not be valid until the Warrant Agent countersigns the Warrant, by manual or facsimile signature, and the signature shall be conclusive evidence that the Warrant has been countersigned under this Agreement. At any time and from time to time after the execution and delivery of this Agreement, the Company may deliver Warrants executed by the Company to the Warrant Agent for countersignature. The Warrant Agent will countersign and deliver Warrants for original issue after receipt by the Warrant Agent of an Officers Certificate specifying (i) the number of Warrants to be countersigned and the date on which the Warrants are to be countersigned and (ii) other information the Company may determine to include or the Warrant Agent may reasonably request.
Section 3.03 Warrant Registrar and Countersignature Agent. The Company may appoint one or more Registrars, and the Warrant Agent may appoint a Countersignature Agent, in which case each reference in this Agreement to the Warrant Agent in respect of the obligations of the Warrant Agent to be performed by that Countersignature Agent will be deemed to be references to the Countersignature Agent. The Company may act as Registrar. In each case the Company and the Warrant Agent will enter into an appropriate agreement with the Countersignature Agent implementing the provisions of this Agreement relating to the obligations of the Warrant Agent to be performed by the Countersignature Agent and the related rights. The Company initially appoints the Warrant Agent as Registrar.
Section 3.04 Replacement Warrants. The Warrant Agent shall issue replacement Warrants in a form mutually agreed to by the Warrant Agent and the Company for those certificates alleged to have been lost, stolen or destroyed, upon receipt by Warrant Agent and the Company of (i) evidence reasonably satisfactory to the Warrant Agent of such loss, theft or destruction of such Warrants, and (ii) indemnity reasonably satisfactory to the Warrant Agent, which indemnity shall include an open penalty surety bond reasonably satisfactory to the Warrant Agent (unless waived by the Warrant Agent) and holding it and Company harmless, absent notice to Warrant Agent that such certificates have been acquired by a bona fide purchaser. The Warrant Agent may, at its option, issue replacement Warrants for mutilated certificates upon presentation thereof without such indemnity. The Company may charge the Holder for the expenses of the Company and the Warrant Agent in replacing a Warrant.
Section 3.05 Outstanding Warrants. Warrants outstanding at any time are all Warrants that have been countersigned by the Warrant Agent except for:
(i) Warrants canceled by the Warrant Agent or Company or delivered to the Warrant Agent for cancellation;
7
(ii) Warrants exercised by the Holder thereof; and
(iii) any Warrant which has been replaced pursuant to Section 3.04 unless and until the Warrant Agent and the Company receive proof satisfactory to them that the replaced Warrant is held by a bona fide purchaser, in which case the replacement Warrant issued pursuant to Section 3.04 shall be automatically canceled.
Section 3.06 Cancellation. Notwithstanding any Warrants cancelled in accordance with Section 4.01, the Company will promptly deliver to the Warrant Agent for cancellation any Warrants previously countersigned and delivered hereunder which the Company may have acquired in any manner whatsoever, and may deliver to the Warrant Agent for cancellation any Warrants previously countersigned hereunder which the Company has not issued and sold. Any Registrar will forward to the Warrant Agent any Warrants surrendered to it for transfer or exchange. The Warrant Agent will cancel all Warrants surrendered for transfer, exchange or cancellation and dispose of them in accordance with its normal procedures. Certification of the cancellation of all canceled Warrants shall be delivered to the Company upon written request. The Company may not issue new Warrants to replace Warrants that have been exercised or delivered to the Warrant Agent for cancellation.
Section 3.07 CUSIP Numbers. The Company in issuing the Warrants shall obtain and use CUSIP numbers for the Warrants and the Warrant Agent will use such CUSIP numbers in notices as a convenience to Holders, with any such notice stating that no representation is made as to the correctness of such numbers either as printed on the Warrants or as contained in any notice to any Holder. The Company will promptly notify the Warrant Agent and Holders in writing of any change in such CUSIP numbers.
Section 3.08 Registration, Transfer and Exchange. (a) The Company shall cause the Registrar to maintain a register (the Register) for registering the record ownership of the Warrants by the Holders and transfers and exchanges of the Warrants. Each Warrant will be registered in the name of the Holder thereof or its nominee.
(b) Subject to Section 3.09 hereof, a Holder may transfer a Warrant to another Person or exchange a Warrant for another Warrant by presenting to the Registrar a written request therefor stating the name of the proposed transferee or requesting such an exchange, accompanied by any certification, opinion or other document required by this Agreement together with a certification from such Holder that such transfer is in compliance with Section 5.02 of the Purchase Agreement. The Registrar will promptly register any transfer or exchange that meets the requirements of this Section 3.08 by noting the same in the Register maintained by the Registrar for such purpose; provided that no transfer or exchange will be effective until it is registered in the Register. Prior to the registration of any transfer, the Company, the Warrant Agent and their agents will treat the Person in whose name the Warrant is registered as the owner and Holder thereof for all purposes, and will not be affected by notice to the contrary.
From time to time the Company will execute and the Warrant Agent will countersign additional Warrants as necessary in order to permit the registration of a transfer or exchange in accordance with this Section. All Warrants issued upon transfer or exchange shall be the duly authorized, executed and delivered Warrants of the Company entitled to the benefits of this Agreement.
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No service charge will be imposed solely in connection with any transfer or exchange of any Warrant, but the Company may require payment of a sum sufficient to cover any transfer tax or similar governmental charge payable in connection therewith.
A party requesting transfer of Warrants or other securities must provide any evidence of authority that may be required by the Warrant Agent, including a signature guarantee from an eligible guarantor institution participating in a signature guarantee program approved by the Securities Transfer Association.
(c) Subject to compliance with Section 3.09(b), if a Warrant is transferred or exchanged for another Warrant, the Warrant Agent will (i) cancel the Warrant being transferred or exchanged, (ii) deliver one or more new Warrants which (in the aggregate) reflect the amount equal to the amount of Warrants being transferred or exchanged to the transferee (in the case of a transfer) or the Holder of the canceled Warrant (in the case of an exchange), registered in the name of such transferee or Holder, as applicable, and (iii) if such transfer or exchange involves less than the entire amount of the canceled Warrant, deliver to the Holder thereof one or more Warrants which (in the aggregate) reflect the amount of the untransferred or unexchanged portion of the canceled Warrant, registered in the name of the Holder thereof.
Section 3.09 Restrictions on Transfer and Exchange. (a) The transfer or exchange of any Warrant may only be made in accordance with this Section 3.09 and Section 3.08; provided that no such transfer or exchange shall be made to an Industry Competitor. The Registrar shall refuse to register any requested transfer or exchange that does not comply with the immediately preceding sentence; however, unless and until the Company provides the Warrant Agent and Registrar with written notice that a proposed transferee is an Industry Competitor, the Warrant Agent and Registrar shall have no obligation under this Agreement to confirm or verify whether a proposed transferee is an Industry Competitor. Subject to Section 3.09(b), the Person requesting the transfer or exchange must deliver or cause to be delivered to the Warrant Agent a duly completed Rule 144A Certificate or Accredited Investor Certificate and such other certifications and evidence as the Company may reasonably require in order to determine that the proposed transfer or exchange is being made in compliance with this Section 3.09 and the applicable provisions of the Securities Act and any applicable securities laws of any state of the United States.
(b) No Rule 144A Certificate, Accredited Investor Certificate or other certification and evidence is required in connection with any transfer or exchange of any Warrant (or a beneficial interest therein) after such Warrant is eligible for resale pursuant to Rule 144 under the Securities Act (or a successor provision) without the need to satisfy current information or other requirements therein; provided that the Company and Registrar may require from any Person requesting a transfer or exchange in reliance upon this paragraph any other reasonable certifications and evidence in connection with such resale. Any Warrant delivered in reliance upon this paragraph will not bear the Restricted Legend.
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(c) The Registrar will retain electronic copies of all certificates and other documents received in connection with the transfer or exchange of a Warrant, and the Company will have the right to inspect and make copies thereof at any reasonable time upon written notice to the Registrar.
(d) Notwithstanding anything to the contrary contained in this Agreement or in the Certificate of Designation, the number of shares of Common Stock that may be issued under the Warrants and the 12% Redeemable Preferred Stock of the Company for any reason shall not exceed the maximum number of shares of Common Stock which the Company may issue without stockholder approval under the stockholder approval rules of the New York Stock Exchange or any other National Securities Exchange on which the shares of Common Stock are then listed, including New York Stock Exchange Listing Rule 312.03, unless the requisite stockholder approval has been obtained. The foregoing restriction shall continue notwithstanding any failure of the Common Stock to continue to be listed on the New York Stock Exchange or any other National Securities Exchange on which the shares of Common Stock are then listed.
ARTICLE IV
SEPARATION OF WARRANTS; TERMS OF WARRANTS;
EXERCISE OF WARRANTS
Section 4.01 Terms of Warrants; Exercise of Warrants.
(a) Subject to the terms of this Agreement, a Warrant shall be exercisable, at the election of the Holder thereof, either in full or from time to time in part during the period commencing at the earlier of (i) any Change of Control (as defined in the Certificate of Designation) or the commencement of proceedings for the voluntary or involuntary dissolution, liquidation or winding up of the Company and (ii) opening of business on November 29, 2019 and until 5:00 p.m., New York City time, on November 29, 2028 (the Expiration Time), and shall entitle the Holder thereof to receive Warrant Shares from the Company. No adjustments as to dividends will be made upon exercise of the Warrants. Each Warrant not exercised prior to the Expiration Time shall become void and all rights thereunder and all rights in respect thereof under this Agreement shall cease as of such time. The Company shall notify the Warrant Agent in writing upon the occurrence of either of the events described in this Section 4.01(a)(i), and until such written notice is received by the Warrant Agent, the Warrant Agent may presume conclusively for all purposes that neither of the events described in this Section 4.01(a)(i) has occurred.
(b) In order to exercise all or any of the Warrants, the Holder thereof must deliver to the Company (i) such Warrants and (ii) the form of election to exercise on the reverse thereof duly filled in and signed (the Exercise Notice). Following its receipt of any Exercise Notice, the Company will promptly (and in any event, within two Business Days) provide written notice to the Warrant Agent whether (A) the Company elects (a Net Share Settlement Election) to have the exercise of Warrants set forth in the Exercise Notice (the Warrant Exercise) net share settled pursuant to the procedures set forth in Section 4.01(c) (a Net Share Settlement) or (B) the Company elects (a Full Share Settlement Election) to have the Warrant Exercise settled solely in shares of Common Stock pursuant to the procedures set forth in Section 4.01(d) (a Full Share Settlement). If the Company shall not have provided such a notice to the Warrant Agent by 5:00 p.m., New York City time, on the second Business Day following the Companys receipt of any such Exercise Notice, the Company will be deemed to have made a Full Share Settlement Election with respect to the Warrants to which such Exercise Notice relates, as of such time.
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(c) If the Company makes a Net Share Settlement Election pursuant to Section 4.01(b) with respect to the Warrant Exercise, then the Warrant Exercise shall be net share settled whereupon the Warrant will be converted into shares of Common Stock pursuant to a cashless exercise, after which the Company will issue to the Holder the Warrant Shares equal to the result obtained by (i) subtracting B from A, (ii) dividing the result by A, and (iii) multiplying the difference by C as set forth in the following equation:
X = ((A - B)/A) x C
where:
X = | the Warrant Shares issuable upon exercise pursuant to this paragraph (c). |
A = | the Market Value as of the date on which the Holder delivers the applicable Exercise Notice. |
B = | the Exercise Price. |
C = | with respect to the Warrant then being exercised, the number of shares of Common Stock for which such Warrant is exercisable, prior to the Net Share Settlement procedures pursuant to this paragraph (c). |
If the foregoing calculation results in a negative number, then no shares of Common Stock shall be issued upon exercise pursuant to this paragraph (c). The Company shall calculate and transmit to the Warrant Agent, and the Warrant Agent shall have no obligation under this Agreement to make, any calculations in respect of any Net Share Settlements. The number of Warrant Shares to be issued on such Net Share Settlement will be determined by the Company (with written notice thereof to the Warrant Agent) using the formula set forth in this Section 4.01(c). The Warrant Agent shall have no duty or obligation to investigate or confirm whether the Companys determination of the number of Warrant Shares to be issued on such exercise, pursuant to this Section 4.01(c) is accurate or correct.
(d) If a Full Share Settlement Election is made pursuant to Section 4.01(b) with respect to a Warrant Exercise, then within one Business Day following the date of the Full Share Settlement Election, the Holder shall deliver payment to the Company of an amount equal to the Exercise Price multiplied by the number of Warrant Shares issuable as to which the Warrant was so exercised in cash or via wire transfer of immediately available funds.
(e) Upon compliance with the provisions set forth above, the Company shall promptly deliver or cause to be delivered, to or upon the written order of the Holder and in such name or names as the Holder may designate, a certificate or certificates for the number of whole Warrant Shares issuable upon the exercise of such Warrants or other securities or property to which such Holder is entitled, together with cash in lieu of fractional shares as provided in Section 6.02. Such certificate or certificates or other securities or property shall be deemed to have been issued, and any person so designated to be named therein shall be deemed to have become a holder of record
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of such Warrant Shares or other securities or property, as of the date of the surrender of such Warrants, notwithstanding that the stock transfer books of the Company shall then be closed or the certificates or other securities or property have not been delivered. If applicable, the Company shall provide to Computershare an initial funding of one thousand dollars ($1,000) for the purpose of issuing cash in lieu of fractional shares. From time to time thereafter, Computershare may request additional funding to cover fractional payments. Computershare shall have no obligation to make fractional payments unless the Company shall have provided the necessary funds to pay in full all amounts due and payable with respect thereto.
(f) If less than all the Warrants represented by a Warrant certificate are exercised, such Warrant certificate shall be surrendered and a new Warrant certificate of the same tenor and for the number of Warrants which were not exercised shall be executed by the Company and delivered to the Warrant Agent and the Warrant Agent shall countersign the new Warrant certificate, registered in such name or names as may be directed in writing by the Holder, and shall deliver the new Warrant certificate to the Person or Persons entitled to receive the same.
(g) All Warrant certificates surrendered upon exercise of Warrants shall be canceled by the Company. Such canceled Warrant certificates shall then be disposed of by the Company in accordance with its standard procedures. The Company shall promptly notify the Warrant Agent in writing of any exercise of Warrants, and to the extent that less than all the Warrants represented by a Warrant certificate are exercised, the Company shall notify the Warrant Agent in writing of such exercise of Warrants concurrently with the delivery of the executed Warrant certificate as provided in Section 4.01(f).
(h) The Warrant Agent shall keep copies of this Agreement and any notices given or received hereunder available for inspection by the Holders during normal business hours at its office upon reasonable notice to the Warrant Agent by the Holders. The Company shall supply the Warrant Agent from time to time with such numbers of copies of this Agreement as the Warrant Agent may reasonably request.
(i) Certificates, if any, representing Warrant Shares shall bear a Restricted Legend (with all references to Warrants therein replaced by references to Common Stock, and with such changes thereto as the Company may deem appropriate) if (i) the Warrants for which they were issued carried a Restricted Legend or (ii) the Warrant Shares are issued in a transaction exempt from registration under the Securities Act (other than the exemption provided by Section 3(a)(9) of the Securities Act), in each case until and unless the circumstances set forth in Section 3.01(c) apply to such Shares, and any transfers thereof shall comply with the Restricted Legend.
(j) Notwithstanding anything to the contrary herein, (i) unless otherwise agreed by the Company and the Holder, the Warrant Shares shall be in uncertificated, book-entry form as permitted by the by-laws of the Company and the laws of the Republic of Panama, and (ii) delivery of Warrant Shares upon exercise of a Warrant shall be made to the applicable Holder through the facilities of The Depository Trust Company as directed by such Holder unless such Holder shall otherwise instruct.
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(k) If a Holder elects to partially exercise a Warrant, the number of Warrant Shares deliverable upon such partial exercise (before giving effect to any Net Share Settlement with respect thereto) must be not less than 50,000 Warrant Shares.
Section 4.02 Conditional Exercise. Notwithstanding any other provision hereof, if an exercise of any portion of a Warrant is to be made in connection with a public offering or a sale of the Company (pursuant to a merger, sale of stock or otherwise), such exercise may at the election of the Holder be conditioned upon the consummation of such transaction, in which case such exercise shall not be deemed to be effective until immediately prior to the consummation of such transaction.
Section 4.03 Opinion of Counsel. The Company shall provide one or more Opinions of Counsel prior to the issuance of Warrants to set up a reserve of warrants and related Common Stock. The opinions shall, taken together, state that all warrants or Common Stock, as applicable, are: (i) registered under the Securities Act, as amended, or are exempt from such registration, and all appropriate state securities law filings have been made with respect to the warrants or shares; and (ii) validly issued, fully paid and non-assessable.
Section 4.04 Cost Basis Information.
(a) In the event of a Full Share Settlement, the Company shall instruct the Warrant Agent to record cost basis for newly issued Warrant Shares issued pursuant to a Full Share Settlement in a manner reasonably determined by the Company to be subsequently communicated by the Company to the Warrant Agent.
(b) In the event of a Net Share Settlement, the Company shall provide cost basis for Warrant Shares issued pursuant to a Net Share Settlement at the time the Company confirms the number of Warrant Shares issuable in connection with the Net Share Settlement to the Warrant Agent.
ARTICLE V
COVENANTS OF THE COMPANY
Section 5.01 Maintenance of Office or Agency. The Company will maintain in the United States an office or agency where Warrants may be surrendered for registration of transfer or exchange or for presentation for exercise. The Company hereby initially designates the Corporate Trust Office of the Warrant Agent as such office of the Company. The Company will give prompt written notice to the Warrant Agent of the location, and any change in the location, of such office or agency. If at any time the Company fails to maintain any such required office or agency or fails to furnish the Warrant Agent with the address thereof, such presentations and surrenders may be made or served to the Warrant Agent.
The Company may also from time to time designate one or more other offices or agencies where the Warrants may be surrendered or presented for any of such purposes and may from time to time rescind such designations. The Company will give prompt written notice to the Warrant Agent of any such designation or rescission and of any change in the location of any such other office or agency.
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Section 5.02 Payment of Taxes. The Company will pay all documentary, stamp or similar issue or transfer taxes in respect of the issuance or delivery of Warrant Shares upon the exercise of Warrants; provided that the exercising Holder shall be required to pay any tax or taxes which may be payable in respect of any transfer involved in the issue of any Warrants or any Warrant Shares in a name other than that of the registered holder of a Warrant surrendered upon exercise, and the Company and the Warrant Agent shall not be required to issue or deliver such Warrant unless or until the exercising Holder shall have paid to the Company the amount of such tax or shall have established to the satisfaction of the Company and the Warrant Agent that such tax has been paid.
Section 5.03 Rule 144A(d)(4) Information. For so long as any of the Warrants or Warrant Shares remain outstanding and constitute restricted securities under Rule 144, the Company will make available upon request to any prospective purchaser of the Warrants or Warrant Shares or beneficial owner of Warrants or Warrants Shares in connection with any sale thereof the information required by Rule 144A(d)(4) under the Securities Act; provided that such information shall be deemed conclusively to be made available pursuant to this Section 5.03 if the Company has filed such information with the Commission via its Electronic Data Gathering, Analysis and Retrieval System (or any successor electronic system maintained by the Commission) and such information is publicly available on such system.
Section 5.04 Reservation of Warrant Shares. The Company will reserve and keep available for issuance and delivery such number of its authorized but unissued shares of Common Stock or other securities of the Company as will from time to time be sufficient to permit the exercise in full of all outstanding Warrants, which shares or securities will, when issued, be free and clear of all liens, security interests, charges and other encumbrances and free and clear of all preemptive rights.
The Company will authorize and direct the transfer agent for the Common Stock (the Transfer Agent) and every subsequent transfer agent for any securities of the Company issuable upon the exercise of the Warrants to reserve such number of authorized securities as shall be required for such purpose. The Company will supply such Transfer Agent with duly executed certificates for such purposes and will provide or otherwise make available any cash which may be payable as provided in Sections 4.01(e) and 6.02. The Company will furnish such Transfer Agent a copy of all notices of adjustments, and certificates related thereto, transmitted to each Holder pursuant to Section 6.01(d).
Section 5.05 Listing. The Company shall use commercially reasonable efforts to cause the Warrant Shares, immediately upon such exercise, to be listed on the New York Stock Exchange or the principal securities exchange on which shares of Common Stock or other securities constituting Warrant Shares are listed at the time of such exercise. The Company shall take all such actions as may be necessary to ensure that all Warrant Shares are issued without violation by the Company of any applicable law or governmental regulation or any requirements of any securities exchange upon which shares of Common Stock or other securities constituting Warrant Shares may be listed at the time of such exercise.
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Section 5.06 HSR Act. If the Company or any Holder of Warrants determines, after consultation with the other, that a filing is required pursuant to the Hart-Scott-Rodino Antitrust Improvements Act of 1976, as amended (the HSR Act), solely in connection with the exercise of Warrants hereunder, then the Company, on the one hand, and such Holder of Warrants, on the other hand, shall (A) as promptly as practicable make, or cause to be made, all filings and submissions required under the HSR Act with respect to the exercise of such Warrants and (B) use their commercially reasonable efforts to obtain, or cause to be obtained, consent in respect of such filings and submissions (or the termination or expiration of the applicable waiting period, as applicable) as soon as possible thereafter.
ARTICLE VI
ADJUSTMENT OF EXERCISE PRICE AND NUMBER OF
WARRANT SHARES ISSUABLE
Section 6.01 Adjustment to Number of Warrant Shares. The Exercise Price and the number of Warrant Shares issuable upon the exercise of each Warrant are subject to adjustment from time to time upon the occurrence of the events enumerated in this Section 6.01.
In the event that, at any time as a result of the provisions of this Section 6.01, the Holders of the Warrants shall become entitled upon subsequent exercise to receive any shares of Capital Stock of the Company other than Common Stock, the number of such other shares so receivable upon exercise of this Warrant shall thereafter be subject to adjustment from time to time in a manner and on terms as nearly equivalent as practicable to the provisions contained herein.
(a) Adjustments for Change in Capital Stock.
(i) If the Company pays a dividend (or other distribution) in shares of Common Stock to all holders of the Common Stock, then the Exercise Price in effect immediately following the record date for such dividend (or distribution) shall be divided by the following fraction:
OS1 |
OS0 |
where
OS0 = | the number of shares of Common Stock outstanding immediately prior to the record date for such dividend or distribution; and |
OS1 = | the sum of (A) the number of shares of Common Stock outstanding immediately prior to the record date for such dividend or distribution and (B) the total number of shares of Common Stock constituting such dividend. |
In any such event, the number of Warrant Shares issuable upon exercise of each Warrant at the time of the record date for such dividend or distribution shall be proportionately adjusted so that the Holder, after such date, shall be entitled to purchase the number of shares of Common Stock that such Holder would have owned or been entitled to receive in respect of the shares of Common Stock subject to the Warrant after such date had the Warrant been exercised immediately prior to such date.
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(ii) If the Company issues to all holders of shares of the Common Stock rights, options or warrants entitling them, for a period of not more than 60 days from the date of issuance of such rights, options or warrants, to subscribe for or purchase shares of Common Stock at less than the Market Value determined on the Ex-Date for such issuance, then the Exercise Price in effect immediately following the close of business on the Ex-Date for such issuance shall be divided by the following fraction:
OS0 + X |
OS0 + Y |
where
OS0 = | the number of shares of Common Stock outstanding at the close of business on the record date for such issuance; |
X = | the total number of shares of Common Stock issuable pursuant to such rights, options or warrants; and |
Y = | the number of shares of Common Stock equal to the aggregate price payable to exercise such rights, options or warrants divided by the Market Value determined as of the last trading day preceding the date of the agreement on pricing such rights, options or warrants. |
In any such event, the number of Warrant Shares issuable upon the exercise of each Warrant immediately prior to the date of the agreement on pricing of such rights, options or warrants (the Initial Number) shall be increased to the number obtained by multiplying the Initial Number by a fraction (i) the numerator of which shall be the sum of (x) the number of shares of Common Stock outstanding on such date and (y) the number of additional shares of Common Stock issuable in connection with such rights, options or warrants and (ii) the denominator of which shall be the sum of (1) the number of shares of Common Stock outstanding on such date and (2) the number of shares of Common Stock that the aggregate consideration receivable by the Company for the total number of shares of Common Stock so issuable in connection with such rights, options or warrants would purchase at the Market Value on the last trading day preceding the date of the agreement on pricing such rights, options or warrants.
To the extent that such rights, options or warrants are not exercised prior to their expiration or shares of Common Stock are otherwise not delivered pursuant to such rights or warrants upon the exercise of such rights or warrants, the Exercise Price and the number of Warrant Shares shall be readjusted to the Exercise Price and the number of Warrant Shares that would have then been in effect had the adjustment made upon the issuance of such rights, options or warrants been made on the basis of the delivery of only the number of shares of Common Stock actually delivered. If such rights, options or warrants are only exercisable upon the occurrence of certain triggering events, then the Exercise Price and the number of Warrant Shares shall not be adjusted until such triggering events occur. In determining the aggregate offering price payable for such shares of Common Stock, the conversion agent shall take into account any consideration received for such rights, options or warrants and the value of such consideration (if other than cash, to be determined by the Board of Directors).
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(iii) If the Company subdivides, combines or reclassifies the shares of Common Stock into a greater or lesser number of shares of Common Stock, then the Exercise Price in effect immediately following the effective date of such share subdivision, combination or reclassification shall be divided by the following fraction:
OS1 |
OS0 |
where
OS0 = | the number of shares of Common Stock outstanding immediately prior to the effective date of such share subdivision, combination or reclassification; and |
OS1 = | the number of shares of Common Stock outstanding immediately after the opening of business on the effective date of such share subdivision, combination or reclassification (after giving effect thereto). |
In any such event, the number of Warrant Shares issuable upon exercise of each Warrant at the time of the effective date of such subdivision, combination or reclassification, shall be proportionately adjusted so that the Holder, after such date, shall be entitled to purchase the number of shares of Common Stock that such Holder would have owned or been entitled to receive in respect of the shares of Common Stock subject to the Warrant after such date had the Warrant been exercised immediately prior to such date.
(iv) If the Company distributes to all holders of shares of Common Stock evidences of indebtedness, shares of Capital Stock (other than Common Stock) or other assets (including cash or securities, but excluding any dividend or distribution referred to in clause (i) above; any rights or warrants referred to in clause (ii) above; and any dividend of shares of Capital Stock of any class or series, or similar equity interests, of or relating to a subsidiary or other business unit in the case of certain spin-off transactions as described below), then the Exercise Price in effect immediately following the close of business on the record date for such distribution shall be divided by the following fraction:
SP0 |
SP0 - FMV |
where
SP0 = | the Closing Sale Price per share of Common Stock on the Trading Day immediately preceding the Ex-Date; and |
FMV = | the fair market value of the portion of the distribution applicable to one share of Common Stock on the Trading Day immediately preceding the Ex-Date as determined by the Board of Directors. |
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In any such event, the number of Warrant Shares issuable upon the exercise of each Warrant shall be increased to the number obtained by dividing (x) the product of (1) the number of Warrant Shares issuable upon the exercise of the Warrant before such adjustment, and (2) the Exercise Price in effect immediately prior to the distribution giving rise to this adjustment by (y) the new Exercise Price determined in accordance with the immediately preceding sentence.
In a spin-off, where the Company makes a distribution to all holders of shares of Common Stock consisting of Capital Stock of any class or series, or similar equity interests of, or relating to, a subsidiary or other business unit the Exercise Price shall be adjusted on the fourteenth Trading Day after the effective date of the distribution by dividing the Exercise Price in effect immediately prior to such fourteenth Trading Day by the following fraction:
MP0 + MPS |
MP0 |
where
MP0 = | the average of the Closing Sale Price of the Common Stock over each of the first 10 Trading Days commencing on and including the fifth Trading Day following the effective date of such distribution; and |
MPS = | the average of the closing sale price of the Capital Stock or equity interests representing the portion of the distribution applicable to one share of Common Stock over each of the first 10 Trading Days commencing on and including the fifth Trading Day following the effective date of such distribution, or, as reported in the principal securities exchange or quotation system or market on which such shares are traded, or if not traded on a national or regional securities exchange or over-the-counter market, the fair market value of the Capital Stock or equity interests representing the portion of the distribution applicable to one share of Common Stock on such date as determined by the Board of Directors. |
In any such event, the number of Warrant Shares issuable upon the exercise of each Warrant shall be increased to the number obtained by dividing (x) the product of (1) the number of Warrant Shares issuable upon the exercise of the Warrant before such adjustment, and (2) the Exercise Price in effect immediately prior to the distribution giving rise to this adjustment by (y) the new Exercise Price determined in accordance with the immediately preceding sentence.
In the event that such distribution described in this clause (iv) is not so made, the Exercise Price shall be readjusted, effective as of the date the Board of Directors publicly announces its decision not to pay such dividend or distribution, to the Exercise Price that would then be in effect if such dividend distribution had not been declared.
(v) In case the Company effects a Pro Rata Repurchase of Common Stock, then the Exercise Price shall be adjusted to the price determined by multiplying the Exercise Price in effect immediately prior to the effective date of such Pro Rata Repurchase by a fraction of which the numerator shall be (i) the product of (x) the number of shares of Common Stock outstanding immediately before such Pro Rata Repurchase and (y) the Market Value of a share of Common Stock on the trading day immediately preceding the
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first public announcement by the Company or any of its Affiliates of the intent to effect such Pro Rata Repurchase, minus (ii) the aggregate purchase price of the Pro Rata Repurchase, and of which the denominator shall be the product of (1) the number of shares of Common Stock outstanding immediately prior to such Pro Rata Repurchase minus the number of shares of Common Stock so repurchased and (2) the Market Value per share of Common Stock on the trading day immediately preceding the first public announcement by the Company or any of its Affiliates of the intent to effect such Pro Rata Repurchase. In such event, the number of Warrant Shares be adjusted to the number obtained by dividing (A) the product of (I) the number of Warrant Shares issuable upon the exercise of the Warrant before such adjustment, and (II) the Exercise Price in effect immediately prior to the Pro Rata Repurchase giving rise to this adjustment by (B) the new Exercise Price determined in accordance with the immediately preceding sentence.
(vi) In case of any Business Combination or reclassification of Common Stock (other than a reclassification of Common Stock referred to in Section 6.01(a)(iii)), the Holders right to receive Warrant Shares upon exercise of the Warrants shall be converted into the right to exercise the Warrants to acquire the number of shares of stock or other securities or property (including cash) that the Common Stock issuable (at the time of such Business Combination or reclassification) upon exercise of each Warrant immediately prior to such Business Combination or reclassification would have been entitled to receive upon consummation of such Business Combination or reclassification; and in any such case, if necessary, the provisions set forth herein with respect to the rights and interests thereafter of the Holder shall be appropriately adjusted so as to be applicable, as nearly as may reasonably be, to the Holders right to exercise each Warrant in exchange for any shares of stock or other securities or property pursuant to this Section 6.01(a)(vi). In determining the kind and amount of stock, securities or the property receivable upon exercise of each Warrant following the consummation of such Business Combination, if the holders of Common Stock have the right to elect the kind or amount of consideration receivable upon consummation of such Business Combination, then the Holder shall have the right to make a similar election (including being subject to similar proration constraints) upon exercise of each Warrant with respect to the number of shares of stock or other securities or property that the Holder will receive upon exercise of a Warrant.
(vii) Notwithstanding anything herein to the contrary, no adjustment under this Section 6.01 need be made to the Exercise Price unless such adjustment would require a cumulative increase or decrease of at least 2.0% of the Exercise Price then in effect. Any lesser adjustment shall be carried forward and shall be made at the time of and together with the next subsequent adjustment, if any, which, together with any adjustment or adjustments so carried forward, shall amount to a cumulative increase or decrease of at least 2.0% of such Exercise Price.
(viii) The Company reserves the right to make such reductions in the Exercise Price in addition to those required in the foregoing provisions as it considers advisable in order that any event treated for Federal income tax purposes as a dividend or distribution of stock or stock rights will result in less or no tax to the recipients. In the event the Company elects to make such a reduction in the Exercise Price, the Company shall comply with the requirements of Rule 14e-1 under the Exchange Act, and any other securities laws and regulations thereunder if and to the extent that such laws and regulations are applicable in connection with the reduction of the Exercise Price.
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(ix) Notwithstanding any other provisions of this Section 6.01(a), rights or warrants distributed by the Company to all holders of Common Stock entitling the holders thereof to subscribe for or purchase shares of the Companys Capital Stock (either initially or under certain circumstances), which rights or warrants, until the occurrence of a specified event or events (Trigger Event): (A) are deemed to be transferred with such shares of Common Stock; (B) are not exercisable; and (C) are also issued in respect of future issuances of Common Stock, shall be deemed not to have been distributed for purposes of this Section 6.01(a) (and no adjustment to the Exercise Price under this Section 6.01(a) will be required) until the occurrence of the earliest Trigger Event, whereupon such rights and warrants shall be deemed to have been distributed and an appropriate adjustment (if any is required) to the Exercise Price shall be made under Section 6.01(a)(ii). In addition, in the event of any distribution (or deemed distribution) of rights or warrants, or any Trigger Event or other event with respect thereto that was counted for purposes of calculating a distribution amount for which an adjustment to the Exercise Price under this Section 6.01 (a) was made, (1) in the case of any such rights or warrants that shall all have been redeemed or repurchased without exercise by any holders thereof, the Exercise Price shall be readjusted upon such final redemption or repurchase to give effect to such distribution or Trigger Event, as the case may be, as though it were a cash distribution, equal to the per share redemption or repurchase price received by a holder or holders of Common Stock with respect to such rights or warrants (assuming such holder had retained such rights or warrants), made to all holders of Common Stock as of the date of such redemption or repurchase, and (2) in the case of such rights or warrants that shall have expired or been terminated without exercise thereof, the Exercise Price shall be readjusted as if such expired or terminated rights and warrants had not been issued. To the extent that the Company has a rights plan or agreement in effect upon exercise of the Warrants, which rights plan provides for rights or warrants of the type described in this clause, then upon exercise of the Warrants, the Holder will receive, in addition to the Common Stock to which he is entitled, a corresponding number of rights in accordance with the rights plan, unless a Trigger Event has occurred and the adjustments to the Exercise Price with respect thereto have been made in accordance with the foregoing. In lieu of any such adjustment, the Company may amend such applicable stockholder rights plan or agreement to provide that upon exercise of the Warrants, the Holders will receive, in addition to the Common Stock issuable upon such exercise, the rights that would have attached to such Common Stock if the Trigger Event had not occurred under such applicable stockholder rights plan or agreement.
(b) Notwithstanding anything to the contrary in this Section 6.01, no adjustment to the Exercise Price shall be made with respect to any distribution or other transaction if Holders are entitled to participate in such distribution or transaction as if they held a number of shares of Common Stock issuable upon exercise of the Warrants immediately prior to such event, without having to exercise their Warrants.
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(c) If the Company shall take a record of the holders of its Common Stock for the purpose of entitling them to receive a dividend or other distribution, and shall thereafter (and before the dividend or distribution has been paid or delivered to stockholders) abandon its plan to pay or deliver such dividend or distribution, then thereafter no adjustment in the Exercise Price then in effect shall be required by reason of the taking of such record.
(d) Notice of Adjustment. Whenever the Exercise Price is adjusted, the Company shall provide the notices required by Section 6.03.
(e) Company Determination Final. Notwithstanding anything to the contrary herein, whenever the Board of Directors is permitted or required to determine Market Value or fair market value, such determination shall be made in good faith and, absent manifest error, shall be final and binding on the Holders and the Warrant Agent.
(f) When Issuance or Payment May Be Deferred. In any case in which this Section 6.01 shall require that an adjustment in the Exercise Price be made effective as of a record date for a specified event, the Company may elect to defer until the occurrence of such event (i) issuing to the Holder of any Warrant exercised after such record date the Warrant Shares and other Capital Stock of the Company, if any, issuable upon such exercise over and above the Warrant Shares and other Capital Stock of the Company, if any, issuable upon such exercise on the basis of the Exercise Price and (ii) paying to such Holder any amount in cash in lieu of a fractional share pursuant to Section 6.02; provided that the Company shall deliver to such Holder a due bill or other appropriate instrument evidencing such Holders right to receive such additional Warrant Shares, other Capital Stock and cash upon the occurrence of the event requiring such adjustment.
(g) Form of Warrants. Irrespective of any adjustments in the Exercise Price or the number or kind of shares purchasable upon the exercise of the Warrants, Warrants theretofore or thereafter issued may continue to express the same price and number and kind of shares as are stated in the Warrants initially issuable pursuant to this Agreement.
(h) No Adjustments Below Par Value. Notwithstanding anything herein to the contrary, no adjustment will be made to the Exercise Price if, as a result of such adjustment, the Exercise Price per Warrant Share would be less than the par value of the Companys Common Stock (or other Capital Stock for which any Warrant is exercisable); provided that, before taking any action which would but for the foregoing limitation in this sentence have caused an adjustment to reduce the Exercise Price below the then par value (if any) of its Common Stock (or other Capital Stock for which any Warrant is exercisable), the Company will take any commercially reasonable corporate action which would, in the opinion of its counsel, be necessary in order that the Company may validly issue Warrant Shares at the Exercise Price as so adjusted.
Section 6.02 Fractional Interests. The Company shall not be required to issue fractional Warrant Shares or scrip representing fractional shares on the exercise of Warrants. If more than one Warrant shall be presented for exercise in full at the same time by the same Holder, the number of full Warrant Shares which shall be issuable upon the exercise thereof shall be computed on the basis of the aggregate number of Warrant Shares issuable on exercise of the Warrants so presented. If any fraction of a Warrant Share would, except for the provisions of this Section 6.02, be issuable on the exercise of any Warrants (or specified portion thereof), the Company may, at its option, either pay an amount in cash equal to the current Closing Sale Price per Warrant Share, as determined on the date the Warrant is presented for exercise, multiplied by such fraction, computed
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to the nearest whole U.S. cent, or round the number of Warrant Shares issued up to the nearest number of whole Warrant Shares. Whenever a payment for fractional Warrant Shares is to be made by the Warrant Agent, the Company shall (i) promptly prepare and deliver to the Warrant Agent a certificate setting forth in reasonable detail the facts related to such payments and the prices and formulas utilized in calculating such payments, and (ii) provide sufficient monies to the Warrant Agent in the form of fully collected funds to make such payments. The Warrant Agent shall be fully protected in relying upon such a certificate and shall have no duty with respect to, and shall not be deemed to have knowledge of, any payment for fractional Warrant Shares under any section of this Agreement relating to the payment of fractional Warrant Shares unless and until the Warrant Agent shall have received such a certificate and sufficient monies. The Company shall provide an initial funding of one thousand dollars ($1,000) for the purpose of paying cash in lieu of fractional Warrant Shares. From time to time thereafter, Computershare may request additional funding to cover payments in lieu of fractional Warrant Shares.
Section 6.03 Notices to Warrant Holders. (a) Upon any adjustment of the Exercise Price pursuant to Section 6.01, the Company shall promptly thereafter (i) cause to be filed with the Warrant Agent a certificate of the Chief Financial Officer of the Company setting forth the Exercise Price after such adjustment and setting forth in reasonable detail the method of calculation and the facts upon which such calculations are based and setting forth the number of Warrant Shares (or portion thereof) or other securities or property issuable after such adjustment in the Exercise Price, upon exercise of a Warrant, which certificate shall be presumed, absent manifest error, to correctly present the matters set forth therein, and (ii) cause to be given to each of the Holders written notice of such adjustments by first-class mail, postage prepaid. Where appropriate, such notice may be given in advance and included as a part of the notice required to be mailed under the other provisions of this Section 6.03. Until such certificate is received by the Warrant Agent, the Warrant Agent may presume conclusively for all purposes that no such adjustments have been made, and the Warrant Agent shall have no duty or obligation to investigate or confirm whether any of the Companys determinations are accurate or correct.
(b) In case:
(i) the Company shall authorize the issuance to all holders of shares of Common Stock of rights, options or warrants to subscribe for or purchase shares of Common Stock or of any other subscription rights or warrants;
(ii) the Company shall authorize the distribution to all holders of shares of Common Stock of evidences of its indebtedness or assets (other than dividends or distributions referred to in Section 6.01(a));
(iii) of any reclassification or change of Common Stock issuable upon exercise of the Warrants (other than a change in par value, or from par value to no par value, or from no par value to par value, or as a result of a subdivision or combination), or a tender offer or exchange offer for shares of Common Stock by the Company;
(iv) of the voluntary or involuntary dissolution, liquidation or winding up of the Company; or
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(v) the Company proposes to take any action which would require an adjustment of the Exercise Price pursuant to Section 6.01;
then the Company shall cause to be filed with the Warrant Agent and shall cause to be given to each of the Holders, at least 10 days prior to any applicable record date, or promptly in the case of events for which there is no record date, by first-class mail, postage prepaid, a written notice stating (x) the date as of which the holders of record of shares of Common Stock to be entitled to receive any such rights, options, warrants or distribution are to be determined, (y) the initial expiration date set forth in any tender offer or exchange offer for shares of Common Stock, or (z) the date on which any such transaction is expected to become effective or consummated, and the date as of which it is expected that holders of record of shares of Common Stock shall be entitled to exchange such shares for securities or other property, if any, deliverable upon such transaction. The failure to give the notice required by this Section 6.03 or any defect therein shall not affect the legality or validity of any transaction, or the vote upon any action.
Section 6.04 No Rights as Stockholders; Limitations of Liability. Nothing contained in this Agreement or the Warrants shall be construed (i) as conferring upon the holders of Warrants the right to vote or to consent or to receive notice as stockholders in respect of the meetings of stockholders or the election of directors of the Company or any other matter, or any rights whatsoever, including the right to receive dividends or other distributions, as stockholders of the Company, or the right to share in the assets of the Company in the event of its liquidation, dissolution or winding up, except in respect of Common Stock received following exercise of Warrants or (ii) imposing any fiduciary or other duties on the Company or any of its directors or officers, all of which rights and duties are expressly waived by the Holders. In addition, nothing contained in this Agreement or the Warrants shall be construed as imposing any liabilities on the Holder as a stockholder of the Company, whether such liabilities are asserted by the Company or by creditors of the Company.
ARTICLE VII
WARRANT AGENT
Section 7.01 Warrant Agent. The Warrant Agent undertakes the express duties and obligations imposed by this Agreement upon the following terms and conditions (and no duties or obligations shall be inferred), by all of which the Company and the holders of Warrants, by their acceptance thereof, shall be bound:
(a) The statements and recitals contained herein and in the Warrants shall be taken as statements of the Company, and the Warrant Agent assumes no responsibility and shall not be liable for the correctness of any of the same except such as describe the Warrant Agent. The Warrant Agent assumes no responsibility with respect to the distribution of the Warrants except as herein otherwise expressly provided.
(b) The Warrant Agent has no duty to determine when an adjustment under Article VI should be made, how any such adjustment should be made or what any such adjustment should be. Nor shall the Warrant Agent have any obligation hereunder to determine whether an adjustment event has occurred. The Warrant Agent makes no representation as to the validity or value of any securities or assets issued upon exercise of Warrants. The Warrant Agent shall have no obligation under this Agreement to calculate, confirm, investigate or verify the accuracy of the correctness of, the number of Warrant Shares issuable in connection with any exercise hereunder.
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(c) The Warrant Agent shall not be accountable with respect to (i) the validity, value, kind or amount of any Warrant Shares, securities or property which may be issued or delivered at any time upon the exercise of any Warrant or (ii) whether any such Warrant Shares or other securities will, when issued, be validly issued, fully paid and nonassessable; and in each case, makes no representation with respect thereto.
(d) The Warrant Agent shall not be responsible for any failure of the Company to comply with any of the covenants contained in this Agreement or in the Warrants.
(e) The Warrant Agent may rely on, and will be held harmless, indemnified and protected and shall incur no liability in acting or refraining from acting, upon any resolution, certificate, statement, instrument, instruction, opinion, report, notice, request, direction, consent, order, bond, debenture, note, other evidence of indebtedness or other paper or document from the Company with respect to any matter relating to its acting as Warrant Agent hereunder believed by it to be genuine and to have been signed or presented by the proper Person. The Warrant Agent need not investigate any fact or matter stated in the document. The Warrant Agent, in its discretion, may make further inquiry or investigation into such facts or matters as it sees fit. The Warrant Agent shall not be held to have notice of any change of authority of any Person, until receipt of written notice thereof from the Company.
(f) The Warrant Agent may consult with legal counsel, and the advice of such counsel or any Opinion of Counsel will be full and complete authorization and protection to the Warrant Agent and the Warrant Agent will incur no liability for or in respect of any action taken, suffered or omitted by it hereunder in the absence of willful misconduct, bad faith or gross negligence (each as determined by a final judgment of a court of competent jurisdiction) in reliance thereon.
(g) The Warrant Agent may act through its attorneys and agents and will not be responsible for the misconduct or negligence of any agent absent gross negligence, bad faith or willful misconduct (each as determined by a final judgment of a court of competent jurisdiction) in the appointment of such agent.
(h) The Warrant Agent shall act hereunder solely as agent for the Company, and its duties shall be determined solely by the express provisions hereof. No provision of this Agreement shall be construed to relieve the Warrant Agent from liability for its own gross negligence, bad faith or willful misconduct (each as determined by a final judgment of a court of competent jurisdiction).
(i) The Warrant Agent shall not have any duty or responsibility in the case of the receipt of any written demand from any Holder of Warrants with respect to any action or default by the Company, including any duty or responsibility to initiate or attempt to initiate any proceedings at law or otherwise or to make any demand upon the Company.
(j) The Warrant Agent shall not be obligated to expend or risk its own funds or to take any action that it believes would expose or subject it to expense or liability or to a risk of incurring expense or liability, unless it has been furnished with assurances of repayment or indemnity satisfactory to it; provided, further, that the Warrant Agent may in any event resign pursuant to Section 7.04(i) instead of taking any such action.
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(k) The Warrant Agent shall not be liable or responsible for any failure of the Company to comply with any of its obligations relating to any registration statement filed with the Commission or this Agreement, including obligations under applicable regulation or law.
(l) The Warrant Agent shall not be accountable or under any duty or responsibility for the use by the Company of any Warrants authenticated by the Warrant Agent and delivered by it to the Company pursuant to this Agreement or for the application by the Company of the proceeds of the issue and sale, or exercise, of the Warrants.
(m) The Warrant Agent shall act hereunder solely as agent for the Company, and its duties shall be determined solely by the express provisions hereof (and no duties or obligations shall be inferred or implied). The Warrant Agent shall not assume any obligations or relationship of agency or trust with any of the owners or holders of the Warrants. The Warrant Agent shall not be charged with knowledge or notice of any fact or circumstance not expressly set forth herein, and shall not be bound by the provisions of any other agreement or document (including, but not limited to, the Purchase Agreement) among the Company and the Holders except this Agreement.
(n) The Warrant Agent may rely on and be fully authorized and protected in acting or failing to act upon (i) any guaranty of signature by an eligible guarantor institution that is a member or participant in the Securities Transfer Agents Medallion Program or other comparable signature guarantee program or insurance program in addition to, or in substitution for, the foregoing; or (ii) any law, act, regulation or any interpretation of the same even though such law, act, or regulation may thereafter have been altered, changed, amended or repealed.
(o) In the event the Warrant Agent believes any ambiguity or uncertainty exists hereunder or in any notice, instruction, direction, request or other communication, paper or document received by the Warrant Agent hereunder, the Warrant Agent, may, in its sole discretion, refrain from taking any action, and shall be fully protected and shall not be liable in any way to Company, any Holder of a Warrant or any other Person for refraining from taking such action, unless the Warrant Agent receives written instructions signed by the Company which eliminates such ambiguity or uncertainty to the reasonable satisfaction of Warrant Agent.
(p) The provisions of this Section 7.01, Section 7.02 and Section 7.03 will survive the termination of this Agreement, the exercise or expiration of the Warrants and the resignation, replacement or removal of the Warrant Agent.
Section 7.02 Compensation; Indemnity; Limitation on Liability. (a) The Company will pay the Warrant Agent compensation for all services rendered by it hereunder as agreed upon in writing for its services. The Company will reimburse the Warrant Agent upon request for all reasonable out-of-pocket expenses, disbursements and advances incurred or made by the Warrant Agent in the exercise and performance of its duties hereunder, except any such expense, disbursement or advance attributable to its gross negligence, bad faith or willful misconduct (each as determined by a final non-appealable judgment of a court of competent jurisdiction). Such expenses shall include the reasonable compensation and expenses of the Warrant Agents third-party agents and outside counsel.
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(b) The Company will indemnify the Warrant Agent for, and hold it harmless against, any loss, liability, suit, action, proceeding, damage, judgment, fine, penalty, claim, demand, settlement, costs or expense incurred (including the reasonable fees and expenses of outside legal counsel) without gross negligence, bad faith or willful misconduct (each as determined by a final, non-appealable judgment of a court of competent jurisdiction) on the part of the Warrant Agent, for anything done or omitted to be done by the Warrant Agent in connection with the acceptance, administration of, exercise and performance of its duties under this Agreement, including the costs and expenses of defending against any claim of liability arising therefrom, directly or indirectly. The reasonable costs and expenses incurred in enforcing this right of indemnification will be paid by the Company if the Warrant Agent is entitled to indemnification by the Company pursuant to this Agreement (as determined by a final, non-appealable judgment of a court of competent jurisdiction). The Warrant Agent shall notify the Company promptly of any claim for which it may seek indemnity. Failure by the Warrant Agent to so notify the Company shall not relieve the Company of its obligations hereunder, except to the extent the Company is prejudiced thereby. The Company need not pay for any settlement made without its consent, which consent shall not be unreasonably withheld.
(c) Notwithstanding anything contained herein to the contrary, the Warrant Agents aggregate liability during the term of this Agreement with respect to, or arising from or in connection with this Agreement, or from any services provided or omitted to be provided under this Agreement, whether in contract, or in tort, or otherwise, is limited to, and shall not exceed, the amounts paid hereunder by the Company to Warrant Agent as fees and charges (but not including reimbursable expenses) during the 12 months immediately preceding the event for which recovery from the Warrant Agent is being sought.
(d) Notwithstanding anything in this Agreement to the contrary, in no event will the Warrant Agent be liable for special, punitive, indirect, incidental or consequential loss or damage of any kind whatsoever (including lost profits), even if the Warrant Agent has been advised of the likelihood of such loss or damage and regardless of the form of action. The Warrant Agent will not be deemed to have knowledge of any event of which it was supposed to receive notice thereof hereunder, and the Warrant Agent will be fully protected and will incur no liability for failing to take any action in connection therewith unless and until it has received such notice.
Section 7.03 Individual Rights of Warrant Agent. The Warrant Agent, and any stockholder, director, officer or employee of it, may buy, sell or deal in any of the Warrants or other securities of the Company or become pecuniarily interested in any transaction in which the Company may be interested, or contract with or lend money to the Company or otherwise act as fully and freely as though it were not Warrant Agent under this Agreement. Nothing herein shall preclude the Warrant Agent from acting in any other capacity for the Company or for any other legal entity. An Agent may do the same with like rights.
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Section 7.04 Replacement of Warrant Agent. (a) The Warrant Agent
(i) may resign and be discharged from its duties under this Agreement at any time by not less than 30 days written notice to the Company (pursuant to Section 8.02),
(ii) may be removed at any time by the Company, for any reason, by at least 30 days written notice to the Warrant Agent, and
(iii) may be removed immediately by the Company if: (A) the Warrant Agent is adjudged a bankrupt or an insolvent; (B) a receiver or other public officer takes charge of the Warrant Agent or its property; or (C) the Warrant Agent becomes incapable of acting.
In the event the transfer agency relationship in effect between the Company and the Warrant Agent terminates, the Warrant Agent will be deemed to have resigned automatically and be discharged from its duties under this Agreement as of the effective date of such termination.
(b) If the Warrant Agent resigns or is removed, or if a vacancy exists in the office of Warrant Agent for any reason, the Company will promptly appoint a successor Warrant Agent. If the successor Warrant Agent does not deliver its written acceptance within 30 days after the retiring Warrant Agent resigns or is removed, the retiring Warrant Agent, the Company or the Holders of a majority of the outstanding Warrants may petition any court of competent jurisdiction for the appointment of a successor Warrant Agent.
(c) Upon delivery by the successor Warrant Agent of a written acceptance of its appointment to the retiring Warrant Agent and to the Company, (i) the retiring Warrant Agent will transfer all property held by it as Warrant Agent to the successor Warrant Agent, (ii) the resignation or removal of the retiring Warrant Agent will become effective, and (iii) the successor Warrant Agent will have all the rights, powers and duties of the Warrant Agent under this Agreement. Upon request of any successor Warrant Agent, the Company will execute any and all instruments for fully and vesting in and confirming to the successor Warrant Agent all such rights and powers. The Company will give notice of any resignation and any removal of the Warrant Agent, and the transfer agent, as the case may be, and each appointment of a successor Warrant Agent to all Holders, and include in the notice the name of the successor Warrant Agent and the address of its Corporate Trust Office.
(d) Notwithstanding replacement of the Warrant Agent pursuant to this Section, the Companys obligations under Section 7.02 will continue for the benefit of the retiring Warrant Agent.
Section 7.05 Successor Warrant Agent by Merger. (a) If the Warrant Agent consolidates with, merges or converts into, or transfers all or substantially all of its shareholder services business to, another Person or national banking association, the resulting, surviving or transferee Person or national banking association without any further act will be the successor Warrant Agent with the same effect as if the successor Warrant Agent had been named as the Warrant Agent in this Agreement.
(b) If, at the time such successor to the Warrant Agent shall succeed to the agency created by this Agreement, any of the Warrants have been countersigned but not delivered, the successor Warrant Agent may adopt the countersignature of the original Warrant Agent; and if any of the Warrants shall not have been countersigned, the successor Warrant Agent may countersign such Warrants, and in all such cases such Warrants shall have the full force and effect provided in the Warrants and in this Agreement.
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Section 7.06 Holder Lists. The Warrant Agent shall preserve in as current a form as is reasonably practicable the most recent list available to it of the names and addresses of all Holders. If the Warrant Agent is not the Registrar, the Company shall promptly furnish to the Warrant Agent at such times as the Warrant Agent may request in writing, a list in such form and as of such date as the Warrant Agent may reasonably require of the names and addresses of the Holders.
ARTICLE VIII
MISCELLANEOUS
Section 8.01 Holder Actions. (a) Any notice, consent to amendment, supplement or waiver provided by this Agreement to be given by a Holder (an act) may be evidenced by an instrument signed by the Holder delivered to the Warrant Agent.
(b) Any act by the Holder of any Warrant binds that Holder and every subsequent Holder of a Warrant certificate that evidences the same Warrant of the acting Holder, even if no notation thereof appears on the Warrant certificate. Subject to paragraph (c), a Holder may revoke an act as to its Warrants, but only if the Warrant Agent receives the notice of revocation before the date the amendment or waiver or other consequence of the act becomes effective.
(c) The Company may, but is not obligated to, fix a record date for the purpose of determining the Holders entitled to act with respect to any amendment or waiver or in any other regard. If a record date is fixed, those Persons that were Holders at such record date and only those Persons will be entitled to act, or to revoke any previous act, whether or not those Persons continue to be Holders after the record date. No act will be valid or effective if given or made more than 90 days after any applicable record date with respect thereto.
Section 8.02 Notices and Communications. (a) Any notice or communication by the Company, on the one hand, or the Warrant Agent, on the other hand, to the other shall be in writing and shall be deemed to have been duly given and received (i) when delivered in person, (ii) when actually received when mailed by first class mail, postage prepaid, (iii) when actually received by overnight delivery by a nationally recognized courier service, or (iv) when receipt has been acknowledged when sent via electronic mail email). In each case the notice or communication shall be addressed as follows:
if to the Company:
McDermott International, Inc.
757 N. Eldridge Parkway
Houston, TX 77079
Attention: John Freeman
Email: jfreeman@mcdermott.com
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With copies (which shall not constitute notice) to:
Baker Botts L.L.P.
910 Louisiana Street
Houston, TX 77002
Attention: Ted W. Paris
James H. Mayor
Email: ted.paris@bakerbotts.com
james.mayor@bakerbotts.com
if to the Warrant Agent:
Computershare Inc.
Computershare Trust Company, N.A.
250 Royall Street,
Canton, MA 02021
Attention: Client Services
other address as the Company or the Warrant Agent may designate in writing by notice delivered to the other party in accordance with this Section 8.02.
(b) Except as otherwise expressly provided with respect to published notices, any notice or communication to a Holder will be deemed duly given and received (i) five days after mailing when mailed to the Holder at its address set forth below or as it appears on the Register by first class mail or (ii) on the date sent by email of a .pdf document (with confirmation of transmission) if sent during normal business hours of the recipient, and on the next Business Day if sent after normal business hours of the recipient; provided that if the Company has been made aware of a different address pursuant to the Certificate of Designation or an applicable Warrant, the Company shall provide such notice to such address instead. Copies of any notice or communication to a Holder, if given by the Company, will be mailed to the Warrant Agent at the same time. Defect in mailing a notice or communication to any particular Holder will not affect its sufficiency with respect to other Holders. The notice or communication should be addressed as follows:
if to the Holders:
West Street Capital Partners VII Offshore Investments, L.P.
c/o Goldman Sachs & Co. LLC
200 West Street
New York, NY 10282
Attention: Chris Crampton
With a copy to:
Goldman Sachs & Co. LLC
200 West Street
New York, NY 10282
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Attention: General Counsel, Merchant Banking Division
With a copy (which shall not constitute notice) to:
Vinson & Elkins L.L.P.
666 Fifth Avenue, 26th Floor
New York, NY 10103
Attention: Caroline Blitzer Phillips
Email: cphillips@velaw.com
if to any other purchaser party to the Purchase Agreement, to the addresses set forth on Schedule 1 hereto.
(c) Where this Agreement provides for notice, the notice may be waived in writing by the Person entitled to receive such notice, either before or after the event, and the waiver will be the equivalent of the notice. Waivers of notice by Holders must be filed with the Warrant Agent, but such filing is not a condition precedent to the validity of any action taken in reliance upon such waivers.
Section 8.03 Entire Agreement. This Agreement is intended by the parties hereto as a final expression of their agreement and intended to be a complete and exclusive statement of the agreement and understanding of the parties hereto in respect of the subject matter hereof. There are no restrictions, promises, representations, warranties or undertakings, other than those set forth or referred to herein or in the certificates representing the Warrants, with respect to the rights granted by the Company set forth herein and therein. This Agreement supersedes all prior written or oral agreements and understandings among the parties hereto with respect to such subject matter.
Section 8.04 Amendments, Supplements and Waivers. (a) The Company and the Warrant Agent may amend, supplement or modify this Agreement or the Warrants without notice to or the consent of any Holder:
(i) to cure any ambiguity, omission, inconsistency or mistake in this Agreement or the Warrants in a manner that is not inconsistent with the provisions of this Agreement and that does not adversely affect the rights, preferences and privileges of the Warrants or any Holder;
(ii) to evidence and provide for the acceptance of an appointment hereunder by a successor Warrant Agent; or
(iii) to make any other change that does not adversely affect the rights of any Holder.
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(b) Except as otherwise provided in paragraphs (a) or (c) of this Section 8.04, this Agreement and the Warrants may be amended or modified only by means of a written amendment signed by the Company, the Warrant Agent and the Holders of a majority of the outstanding Warrants. Any amendment or modification of or supplement to this Agreement or the Warrants, any waiver of any provision of this Agreement, and any consent to any departure by the Company or any Holder from the terms of any provision of this Agreement shall be effective only in the specific instance and for the specific purpose for which such amendment, supplement, modification, waiver or consent has been made or given. In addition, any term of a specific Warrant may be amended or waived with the written consent of the Company and the Holder of such Warrant.
(c) Notwithstanding the provisions of paragraph (b), without the consent of each Holder affected, an amendment or waiver may not:
(i) increase the Exercise Price;
(ii) reduce the term of the Warrants;
(iii) make a material and adverse change that does not equally affect all Warrants; or
(iv) decrease the number of shares of Common Stock, cash or other securities or property issuable upon exercise of the Warrants
except, in each case, for adjustments expressly provided for in this Agreement.
(d) It is not necessary for Holders to approve the particular form of any proposed amendment, supplement or waiver if their consent approves the substance thereof.
(e) Subject to Section 8.04(h), an amendment, supplement or waiver under this Section 8.04(e) will become effective on receipt by the Warrant Agent of written consents from the Holders of the requisite percentage of the outstanding Warrants. After an amendment, supplement or waiver under this Section 8.04(e) becomes effective, the Company will send to the Holders affected thereby a notice describing the amendment, supplement or waiver in reasonable detail. Any failure of the Company to send such notice, or any defect therein, will not, however, in any way impair or affect the validity of any such amendment, supplement or waiver.
(f) After an amendment, supplement or waiver becomes effective, it will bind every Holder unless it is of the type requiring the consent of each Holder affected, pursuant to the terms of this Agreement. If the amendment, supplement or waiver is of the type requiring the consent of each Holder affected, the amendment, supplement or waiver will bind each Holder that has consented to it and every subsequent Holder of a Warrant with respect to which consent was granted.
(g) If an amendment, supplement or waiver changes the terms of a Warrant, the Company or the Warrant Agent may require the Holder to deliver it to the Warrant Agent so that the Warrant Agent may place an appropriate notation of the changed terms on the Warrant and return it to the Holder, or exchange it for a new Warrant that reflects the changed terms. The Warrant Agent may also place an appropriate notation on any Warrant thereafter countersigned. However, the effectiveness of the amendment, supplement or waiver shall not be not affected by any failure to annotate or exchange Warrants in this fashion.
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(h) The Warrant Agent shall be entitled to receive, and will be fully protected in relying on, an Opinion of Counsel stating that the execution of any amendment, supplement or waiver authorized pursuant to this Section 8.04 is authorized or permitted by this Agreement. If the Warrant Agent has received such an Opinion of Counsel, it shall sign the amendment, supplement or waiver so long as the same does not adversely affect the rights of the Warrant Agent. The Warrant Agent may, but shall not be obligated to, execute any amendment, supplement or waiver that affects the Warrant Agents own rights, duties or immunities under this Agreement.
Section 8.05 Benefits of This Agreement. Nothing in this Agreement shall be construed to give to any Person other than the Company, the Warrant Agent and the registered holders of Warrants any legal or equitable right, remedy or claim under this Agreement; but this Agreement shall be for the sole and exclusive benefit of the Company, the Warrant Agent and the registered holders of Warrants.
Section 8.06 Successors and Assigns. All agreements of the Company in this Agreement and the Warrants will bind its successors and assigns. All agreements of the Warrant Agent in this Agreement will bind its successors and assigns. Subject to the transfer conditions referred to in any legend in effect as set forth herein and Sections 3.08 and 3.09, each Holder may freely assign its Warrants and its rights under this Agreement, in whole or in part, to any Person; provided that no such assignment shall be made to an Industry Competitor.
Section 8.07 Governing Law; Jurisdiction and Venue; Waiver of Jury Trial. This Agreement and the Warrants shall be governed by and construed in accordance with the laws of the State of New York (without giving effect to any principles of conflicts of laws thereof that would result in the application of the laws of any other jurisdiction, except to the extent that the New York conflicts of laws principles would apply applicable laws of the Republic of Panama to internal matters relating to corporations organized thereunder). The Company, the Warrant Agent and each Holder of a Warrant each hereby irrevocably and unconditionally:
(a) submits for itself in any legal action or proceeding relating solely to this Agreement and the Warrant or the transactions contemplated hereby, to the exclusive jurisdiction of the courts of the State of New York and the Federal courts of the United States of America;
(b) consents that any such action or proceeding may be brought in such courts, and waives any objection that it may now or hereafter have to the venue of any such action or proceeding in any such court or that such action or proceeding was brought in an inconvenient court and agrees not to plead or claim the same to the extent permitted by applicable law;
(c) agrees that service of process in any such action or proceeding may be effected by mailing a copy thereof by registered or certified mail (or any substantially similar form of mail), postage prepaid, to the party, as the case may be, at its address set forth in Section 8.02 or at such other address of which the other party shall have been notified pursuant thereto;
(d) agrees that nothing herein shall affect the right to effect service of process in any other manner permitted by applicable law or shall limit the right to sue in any other jurisdiction for recognition and enforcement of any judgment or if jurisdiction in the courts referenced in the foregoing clause (a) are not available despite the intentions of the parties hereto;
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(e) agrees that final judgment in any such suit, action or proceeding brought in such a court may be enforced in the courts of any jurisdiction to which such party is subject by a suit upon such judgment, provided that service of process is effected upon such party in the manner specified herein or as otherwise permitted by applicable law;
(f) agrees that to the extent that such party has or hereafter may acquire any immunity from jurisdiction of any court or from any legal process with respect to itself or its property, such party hereby irrevocably waives such immunity in respect of its obligations under this Agreement and the Warrants issued hereunder, to the extent permitted by applicable law; and
(g) IRREVOCABLY AND UNCONDITIONALLY WAIVES TRIAL BY JURY IN ANY LEGAL ACTION OR PROCEEDING IN RELATION TO THIS AGREEMENT AND THE WARRANTS ISSUED HEREUNDER.
Section 8.08 Severability. In case any provision in this Agreement or in the Warrants is invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions will not in any way be affected or impaired thereby.
Section 8.09 Counterparts. This Agreement may be executed in any number of counterparts and by different parties hereto in separate counterparts, each of which counterparts, when so executed and delivered, shall be deemed to be an original and all of which counterparts, taken together, shall constitute but one and the same Agreement. Delivery of an executed counterpart of a signature page to this Agreement by facsimile or .pdf attachment to electronic mail shall be effective as delivery of a manually executed counterpart to this Agreement.
Section 8.10 Table of Contents and Headings. The Table of Contents and headings of the Articles and Sections of this Agreement have been inserted for convenience of reference only, and shall not limit or otherwise affect the meaning hereof.
Section 8.11 No Adverse Interpretation of Other Agreements. This Agreement may not be used to interpret another agreement of the Company, and no such agreement may be used to interpret this Agreement.
Section 8.12 No Presumption. If any claim is made by a party relating to any conflict, omission or ambiguity in this Agreement, no presumption or burden of proof or persuasion shall be implied by virtue of the fact that this Agreement was prepared by or at the request of a particular party or its counsel.
Section 8.13 Obligations Limited to Parties to This Agreement and Holders. Each of the parties hereto covenants, agrees and acknowledges that, other than as set forth herein, no Person other than the Warrant Agent, the Holders, their respective permitted assignees and the Company shall have any obligation hereunder and that, notwithstanding that one or more of such Persons may be a corporation, partnership or limited liability company, no recourse under this Agreement or under any documents or instruments delivered in connection herewith shall be had against any former, current or future director, officer, employee, agent, general or limited partner, manager, member, stockholder or Affiliate of any of such Persons or their respective permitted assignees, or any former, current or future director, officer, employee, agent, general or limited partner, manager, member, stockholder or Affiliate of any of the foregoing, whether by the enforcement of
33
any assessment or by any legal or equitable proceeding, or by virtue of any applicable law, it being expressly agreed and acknowledged that no personal liability whatsoever shall attach to, be imposed on or otherwise be incurred by any former, current or future director, officer, employee, agent, general or limited partner, manager, member, stockholder or Affiliate of any of such Persons or any of their respective assignees, or any former, current or future director, officer, employee, agent, general or limited partner, manager, member, stockholder or Affiliate of any of the foregoing, as such, for any obligations of such Persons or their respective permitted assignees under this Agreement or any documents or instruments delivered in connection herewith or for any claim based on, in respect of or by reason of such obligation or its creation, except, in each case, for any assignee of any Holder hereunder.
Section 8.14 Bank Accounts. All funds received by Computershare under this Agreement that are to be distributed or applied by the Warrant Agent in the performance of services under this Agreement (the Funds) shall be held by Computershare as agent for the Company and deposited in one or more bank accounts to be maintained by Computershare in its name as agent for the Company. Until paid pursuant to the terms of this Agreement, Computershare will hold the Funds through such accounts in: deposit accounts of commercial banks with Tier 1 capital exceeding $1 billion or with an average rating above investment grade by S&P (LT Local Issuer Credit Rating), Moodys (Long Term Rating) and Fitch Ratings, Inc. (LT Issuer Default Rating) (each as reported by Bloomberg Finance L.P.). Computershare shall have no responsibility or liability for any diminution of the Funds that may result from any deposit made by Computershare in accordance with this paragraph, including any losses resulting from a default by any bank, financial institution or other third party. Computershare may from time to time receive interest, dividends or other earnings in connection with such deposits. Computershare shall not be obligated to pay such interest, dividends or earnings to the Company, any holder or any other party.
Section 8.15 Further Assurances. The Company shall perform, acknowledge and deliver or cause to be performed, acknowledged and delivered all such further and other acts, documents, instruments and assurances as may be reasonably required by the Warrant Agent for the carrying out or performing by the Warrant Agent of the provisions of this Agreement.
Section 8.16 Confidentiality. The Warrant Agent and the Company agree that all books, records, information and data pertaining to the business of the other party, including personal, non-public Holder information, which are exchanged or received pursuant to the negotiation or the carrying out of this Agreement including the fees for services agreed upon by the parties hereto shall remain confidential, and shall not be voluntarily disclosed to any other Person, except as may be required by law or regulation, including pursuant to subpoenas from state or federal government authorities (e.g., in divorce and criminal actions).
Section 8.17 Force Majeure. Notwithstanding anything to the contrary contained herein, the Warrant Agent will not be liable for any delays or failures in performance resulting from acts beyond its reasonable control including acts of God, terrorist acts, shortage of supply, breakdowns or malfunctions, interruptions or malfunction of computer facilities, or loss of data due to power failures or mechanical difficulties with information storage or retrieval systems, labor difficulties, war, or civil unrest.
34
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed, as of the day and year first above written.
MCDERMOTT INTERNATIONAL, INC. | ||
By: | /s/ Stuart Spence | |
Stuart Spence | ||
Executive Vice President and Chief Financial Officer |
[Signature Page to Warrant Agreement]
COMPUTERSHARE Inc., and | ||
COMPUTERSHARE TRUST COMPANY, N.A. | ||
collectively, as Warrant Agent | ||
By: | /s/ Collin Ekeogu | |
Name: Collin Ekeogu | ||
Title: Manager, Corporate Actions |
[Signature Page to Warrant Agreement]
SCHEDULE 1
PURCHASER ADDRESSES
West Street Capital Partners VII Offshore Investments, L.P.
c/o Goldman Sachs & Co. LLC
200 West Street
New York, NY 10282
West Street Capital Partners VII Investments B, L.P.
c/o Goldman Sachs & Co. LLC
200 West Street
New York, NY 10282
West Street Capital Partners VII Parallel B, L.P.
c/o Goldman Sachs & Co. LLC
200 West Street
New York, NY 10282
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EXHIBIT A
[Face of Series A Warrant]
[Insert appropriate legend]
No. _____________________ | Warrants | |
CUSIP No. _____________ | ||
CUSIP No. _____________ |
Series A Warrant Certificate
This Series A Warrant Certificate certifies (this Warrant Certificate) that , or its registered assigns, is the registered holder of Series A Warrants (the Warrants), exercisable for shares of common stock, par value $1.00 (the Common Stock), of McDermott International, Inc., a corporation organized under the laws of the Republic of Panama (the Company). This Warrant Certificate is exercisable for [ ] shares of Common Stock. Each Warrant entitles the registered holder upon exercise at any time from 9:00 a.m., New York City time, on the earlier of (i) any Change of Control (as defined in the Certificate of Designation) or the commencement of proceedings for the voluntary or involuntary dissolution, liquidation or winding up of the Company and (ii) November 29, 2019 until 5:00 p.m., New York City time, on November 29, 2028 (the Expiration Time), to receive from the Company an amount of fully paid and nonassessable shares of Common Stock (the Warrant Shares) at an initial exercise price (the Exercise Price) of $0.01 per Warrant Share (as such price may be adjusted as provided in the Warrant Agreement), subject to the conditions and terms set forth herein and in the Warrant Agreement referred to on the reverse hereof. The Exercise Price and the number of Warrant Shares issuable upon exercise of the Warrants are subject to adjustment upon the occurrence of certain events set forth in the Warrant Agreement.
Reference is hereby made to the further provisions of this Warrant Certificate set forth on the reverse hereof and such further provisions shall for all purposes have the same effect as though fully set forth at this place.
IN WITNESS WHEREOF, the Company has caused this Warrant Certificate to be signed below by its duly authorized officer.
Dated: November 29, 2018
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MCDERMOTT INTERNATIONAL, INC. | ||
By: |
| |
Name: | ||
Title: |
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Countersigned on November 29, 2018:
COMPUTERSHARE Inc., and
COMPUTERSHARE TRUST COMPANY, N.A.
collectively, as Warrant Agent | ||
By: |
| |
Authorized Signatory |
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MCDERMOTT INTERNATIONAL, INC.
[Reverse of Series A Warrant]
1. Warrant Agreement
The Warrants evidenced by this Warrant Certificate are part of a duly authorized issue of Warrants issued or to be issued pursuant to a Warrant Agreement dated as of November 29, 2018 (the Warrant Agreement), among the Company and Computershare Inc., a Delaware corporation (Computershare), and its wholly owned subsidiary Computershare Trust Company, N.A., a federally chartered trust company (collectively, the Warrant Agent), which Warrant Agreement is hereby incorporated by reference in and made a part of this instrument and is hereby referred to for a description of the rights, limitation of rights, obligations, duties and immunities thereunder of the Warrant Agent, the Company and the holders (the words holders or holder meaning the registered holders or registered holder) of the Warrants. To the extent permitted by applicable law, in the event of an inconsistency or conflict between the terms of this Warrant and the Warrant Agreement, the terms of the Warrant Agreement will prevail.
2. Exercise
Warrants may be exercised at any time from 9:00 a.m., New York City time, on the earlier of (i) any Change of Control (as defined in the Certificate of Designation) or the commencement of proceedings for the voluntary or involuntary dissolution, liquidation or winding up of the Company and (ii) November 29, 2019, in each case, and on or before the Expiration Time.
In order to exercise all or any of the Warrants represented by this Warrant Certificate, the holder must deliver to the Company this Series A Warrant Certificate and the form of election to exercise on the reverse hereof duly completed, which signature shall be medallion guaranteed by an institution which is a member of a Securities Transfer Association recognized signature guarantee program.
The exercise of Warrants is subject to certain restrictions on exercise (including a minimum number of Warrants being exercised in a partial exercise of Warrants) as described in the Warrant Agreement.
No Warrant may be exercised after the Expiration Time, and, to the extent not exercised by such time, the Warrants evidenced hereby shall become void.
3. Adjustments
The Warrant Agreement provides that, upon the occurrence of certain events, the Exercise Price and, if applicable, the number of shares of Common Stock issuable upon the exercise of each Warrant shall be adjusted.
4. No Fractional Shares
No fractions of a share of Common Stock will be issued upon the exercise of any Warrant, but the Company will pay the cash value thereof determined as provided in the Warrant Agreement.
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5. Registered Form; Transfer and Exchange
The Warrants have been issued in registered form. Warrant Certificates, when surrendered at the office of the Registrar by the registered holder thereof in person or by legal representative or attorney duly authorized in writing, may be exchanged, in the manner and subject to the limitations provided in the Warrant Agreement, but without payment of any service charge (except as specified in the Warrant Agreement), for another Warrant Certificate or Warrant Certificate of like tenor evidencing in the aggregate a like number of Warrants.
Upon due presentation for registration of transfer of this Warrant Certificate at the office of the Registrar, a new Warrant Certificate or Warrant Certificates of like tenor and evidencing in the aggregate a like number of Warrants shall be issued to the transferee(s) in exchange for this Warrant Certificate, subject to the limitations provided in the Warrant Agreement, without charge except for any tax or other governmental charge imposed in connection therewith.
The Company and the Warrant Agent may deem and treat the registered holder(s) thereof as the absolute owner(s) of this Warrant Certificate (notwithstanding any notation of ownership or other writing hereon made by anyone), for the purpose of any exercise hereof, of any distribution to the holder(s) hereof, and for all other purposes, and neither the Company nor the Warrant Agent shall be affected by any notice to the contrary. This Warrant Certificate does not entitle any holder hereof to any rights of a stockholder of the Company.
6. Countersignature
This Warrant Certificate shall not be valid unless countersigned by the Warrant Agent.
7. Governing Law; Jurisdiction and Venue; Waiver of Jury Trial
This Warrant shall be governed by and construed in accordance with the laws of the State of New York (without giving effect to any principles of conflicts of laws thereof that would result in the application of the laws of any other jurisdiction, except to the extent that the New York conflicts of laws principles would apply applicable laws of the Republic of Panama to internal matters relating to corporations organized thereunder). The Company and the Holder of this Warrant each hereby irrevocably and unconditionally:
(i) submits for itself in any legal action or proceeding relating solely to this Warrant or the transactions contemplated hereby, to the exclusive jurisdiction of the courts of the State of New York and the Federal courts of the United States of America, in each case located within the Southern District of New York, and appellate courts thereof;
(ii) consents that any such action or proceeding may be brought in such courts, and waives any objection that it may now or hereafter have to the venue of any such action or proceeding in any such court or that such action or proceeding was brought in an inconvenient court and agrees not to plead or claim the same to the extent permitted by applicable law;
(iii) agrees that service of process in any such action or proceeding may be effected by mailing a copy thereof by registered or certified mail (or any substantially similar form of mail), postage prepaid, to the party, as the case may be, at its address set forth in the Register or at such other address of which the other party shall have been notified pursuant to the provisions of the Warrant Agreement;
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(iv) agrees that nothing herein shall affect the right to effect service of process in any other manner permitted by applicable law or shall limit the right to sue in any other jurisdiction for recognition and enforcement of any judgment or if jurisdiction in the courts referenced in the foregoing clause (i) are not available despite the intentions of the parties hereto;
(v) agrees that final judgment in any such suit, action or proceeding brought in such a court may be enforced in the courts of any jurisdiction to which such party is subject by a suit upon such judgment, provided that service of process is effected upon such party in the manner specified herein or as otherwise permitted by applicable law;
(vi) agrees that to the extent that such party has or hereafter may acquire any immunity from jurisdiction of any court or from any legal process with respect to itself or its property, such party hereby irrevocably waives such immunity in respect of its obligations under this Warrant Certificate, to the extent permitted by applicable law; and
(vii) IRREVOCABLY AND UNCONDITIONALLY WAIVES TRIAL BY JURY IN ANY LEGAL ACTION OR PROCEEDING IN RELATION TO THIS WARRANT CERTIFICATE.
A copy of the Warrant Agreement may be obtained by the holder hereof upon written request to the Company.
A-6
[Form of Exercise Notice]
(To Be Executed Upon Exercise Of Series A Warrant)
The undersigned holder (the Holder) hereby elects to exercise the right, represented by this Warrant Certificate, to acquire shares of Common Stock to be settled pursuant to the procedures set forth in the Warrant Agreement.
The Holder requests that delivery of such shares be made through the facilities of The Depository Trust Company as follows.
DTC Participant ______________________________________________________________
Participant Account Number: ______________________________________________
Contact Person: _______________________________________________________________
Telephone: ___________________________________________________________________
E-mail address: ________________________________________________________________
Payment of the Exercise Price shall, at the option of the Company, be either by Net Share Settlement as set forth in Sections 4.01(b) and (c) of the Warrant Agreement or through the procedures (including payment) for Full Share Settlement as set forth in Sections 4.01(b) and 4.01(d) of the Warrant Agreement.
[This exercise is made in connection with [insert relevant public offering or sale of the Company] and is conditioned upon consummation of such transaction. The exercise shall not be deemed to be effective until immediately prior to the consummation of such transaction.]
If said number of shares is less than all of the shares of Common Stock issuable hereunder, the Holder requests that a new Warrant Certificate representing the remaining balance of such shares be registered in the name of , whose address is , and that such Warrant Certificate be delivered to , whose address is .
The undersigned represents and warrants that (x) it is a qualified institutional buyer (as defined in Rule 144A) and is receiving the Warrant Shares for its own account or for the account of another qualified institutional buyer, and it is aware that the Company is issuing the Warrant Shares to it in reliance on Rule 144A; (y) it is an accredited investor within the meaning of Rule 501 under the Securities Act; or (z) it is receiving the Warrant Shares pursuant to another available exemption from the registration requirements of the Securities Act. Prior to receiving Warrant Shares pursuant to clause (x) above, the Company and the Warrant Agent may request a certificate substantially in the form of Exhibit C to the Warrant Agreement. Prior to receiving Warrant Shares pursuant to clause (y) above, the Company and the Warrant Agent may request a certificate substantially in the form of Exhibit D and/or an opinion of counsel. Prior to receiving Warrant Shares pursuant to clause (z) above, the Company and the Warrant Agent may request appropriate certificates and/or an opinion of counsel.
A-7
Date: |
| |
Signature | ||
[ | ||
Signature Guaranteed] |
Signatures must be guaranteed by an eligible guarantor institution meeting the requirements of the Warrant Agent, which requirements include membership or participation in the Security Transfer Agent Medallion Program (STAMP) or such other signature guarantee program as may be determined by the Warrant Agent in addition to, or in substitution for, STAMP, all in accordance with the Securities Exchange Act of 1934, as amended.
A-8
[FORM OF TRANSFER NOTICE]
FOR VALUE RECEIVED the undersigned registered holder hereby sell(s), assign(s) and transfer(s) unto (the Assignee)
(Please type or print block letters)
(Please print or typewrite name and address including zip code of assignee)
the within Warrant and all rights thereunder (the Securities), hereby irrevocably constituting and appointing attorney to transfer said Warrant Certificate on the books of the Company with full power of substitution in the premises.
[THE FOLLOWING PROVISION TO BE INCLUDED ON ALL CERTIFICATES BEARING A RESTRICTED LEGEND]
In connection with any transfer of this Warrant Certificate occurring prior to the removal of the Restricted Legend, the undersigned confirms (i) the understanding that the Securities have not been registered under the Securities Act of 1933, as amended; (ii) that such transfer is made without utilizing any general solicitation or general advertising; and (iii) further as follows:
Check One
☐ | (1) This Warrant Certificate is being transferred to a qualified institutional buyer in compliance with Rule 144A under the Securities Act of 1933, as amended and certification in the form of Exhibit C to the Warrant Agreement is being furnished herewith. |
or |
☐ | (2) This Warrant Certificate is being transferred other than in accordance with (1) above and documents are being furnished which comply with the conditions of transfer set forth in this Warrant and the Warrant Agreement. |
If none of the foregoing boxes is checked, the Warrant Agent is not obligated to register this Warrant in the name of any Person other than the Holder hereof unless and until the conditions to any such transfer of registration set forth herein and in the Warrant Agreement have been satisfied.
Date: | ||
| ||
Seller | ||
By: |
|
A-9
NOTICE: The signature to this assignment must correspond with the name as written upon the face of the within-mentioned instrument in every particular, without alteration or any change whatsoever.
[Signature Guaranteed] |
Signatures must be guaranteed by an eligible guarantor institution meeting the requirements of the Warrant Agent, which requirements include membership or participation in the Security Transfer Agent Medallion Program (STAMP) or such other signature guarantee program as may be determined by the Warrant Agent in addition to, or in substitution for, STAMP, all in accordance with the Securities Exchange Act of 1934, as amended.
A-10
EXHIBIT B
RESTRICTED LEGEND
THIS WARRANT AND THE UNDERLYING COMMON STOCK THAT MAY BE ISSUED UPON ITS EXERCISE HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE SECURITIES ACT), OR ANY STATE SECURITIES LAWS. NEITHER THIS SECURITY NOR ANY INTEREST OR PARTICIPATION HEREIN MAY BE REOFFERED, SOLD, ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR OTHERWISE DISPOSED OF IN THE ABSENCE OF SUCH REGISTRATION OR UNLESS SUCH TRANSACTION IS EXEMPT FROM, OR NOT SUBJECT TO, REGISTRATION.
THIS WARRANT EVIDENCES AND ENTITLES THE REGISTERED HOLDER HEREOF TO CERTAIN RIGHTS AS SET FORTH IN THE WARRANT AGREEMENT AMONG MCDERMOTT INTERNATIONAL, INC. AND COMPUTERSHARE INC. AND COMPUTERSHARE TRUST COMPANY, N.A. (OR ANY SUCCESSOR WARRANT AGENT) DATED AS OF NOVEMBER 29, 2018, AS IT MAY FROM TIME TO TIME BE SUPPLEMENTED OR AMENDED, THE TERMS OF WHICH ARE HEREBY INCORPORATED HEREIN BY REFERENCE AND A COPY OF WHICH IS ON FILE AT THE PRINCIPAL OFFICES OF THE COMPANY. THE HOLDER OF THIS SECURITY, BY ITS ACCEPTANCE HEREOF (1) REPRESENTS THAT (A) IT IS A QUALIFIED INSTITUTIONAL BUYER (AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT) OR (B) IT IS AN ACCREDITED INVESTOR WITHIN THE MEANING OF RULE 501 UNDER THE SECURITIES ACT AND (2) AGREES TO OFFER, SELL OR OTHERWISE TRANSFER SUCH WARRANT AND THE UNDERLYING COMMON STOCK THAT MAY BE ISSUED UPON ITS EXERCISE, PRIOR TO THE EXPIRATION OF THE APPLICABLE HOLDING PERIOD WITH RESPECT TO RESTRICTED SECURITIES SET FORTH IN RULE 144 UNDER THE SECURITIES ACT, ONLY (A) TO THE COMPANY OR ANY SUBSIDIARY THEREOF, (B) FOR SO LONG AS THE SECURITIES ARE ELIGIBLE FOR RESALE PURSUANT TO RULE 144A, TO A PERSON IT REASONABLY BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT THAT PURCHASES FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER TO WHICH NOTICE IS GIVEN THAT THE TRANSFER IS BEING MADE IN RELIANCE ON RULE 144A, (C) TO AN ACCREDITED INVESTOR WITHIN THE MEANING OF RULE 501 UNDER THE SECURITIES ACT THAT IS ACQUIRING THE SECURITY FOR ITS OWN ACCOUNT, OR FOR THE ACCOUNT OF SUCH AN ACCREDITED INVESTOR, FOR INVESTMENT PURPOSES AND NOT WITH A VIEW TO, OR FOR OFFER OR SALE IN CONNECTION WITH, ANY DISTRIBUTION IN VIOLATION OF THE SECURITIES ACT, (D) PURSUANT TO A REGISTRATION STATEMENT WHICH HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT, OR (E) PURSUANT TO ANOTHER AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT, SUBJECT TO THE COMPANYS AND THE WARRANT AGENTS (INCLUDING ANY SUCCESSOR WARRANT AGENT) RIGHT PRIOR TO ANY SUCH OFFER, SALE OR TRANSFER PURSUANT TO CLAUSE (C) OR (D) TO REQUIRE THE DELIVERY OF AN OPINION OF COUNSEL, CERTIFICATION AND/OR OTHER INFORMATION SATISFACTORY TO THE
B-1
WARRANT AGENT, AND IN EACH OF THE FOREGOING CASES, A CERTIFICATE OF TRANSFER IN THE FORM APPEARING ON THE OTHER SIDE OF THIS SECURITY IS COMPLETED AND DELIVERED BY THE TRANSFEROR TO THE WARRANT AGENT. THIS LEGEND WILL BE REMOVED UPON THE REQUEST OF THE HOLDER AFTER THE EXPIRATION OF THE APPLICABLE HOLDING PERIOD WITH RESPECT TO RESTRICTED SECURITIES SET FORTH IN RULE 144 UNDER THE SECURITIES ACT.
B-2
EXHIBIT C
Rule 144A Certificate
_________, ____
[ ] |
[ ] |
Attention: [ ]
Re: | Warrants to acquire Common Stock McDermott International, Inc. (the Warrants) Issued under the Warrant Agreement (the Agreement) dated as of November 29, 2018 relating to the Warrants |
Ladies and Gentlemen:
This Certificate relates to:
[CHECK A OR B AS APPLICABLE.]
☐ | A. Our proposed purchase of Warrants issued under the Agreement. |
☐ | B. Our proposed exchange of Warrants issued under the Agreement for an equal number of Warrants to be held by us. |
We and, if applicable, each account for which we are acting, in the aggregate owned and invested more than $100,000,000 in securities of issuers that are not affiliated with us (or such accounts, if applicable), as of , 20 , which is a date on or since close of our most recent fiscal year. We and, if applicable, each account for which we are acting, are a qualified institutional buyer within the meaning of Rule 144A (Rule 144A) under the Securities Act of 1933, as amended (the Securities Act). If we are acting on behalf of an account, we exercise sole investment discretion with respect to such account. We are aware that the transfer of Warrants to us, or such exchange, as applicable, is being made in reliance upon the exemption from the provisions of Section 5 of the Securities Act provided by Rule 144A. Prior to the date of this Certificate we have received such information regarding the Company as we have requested pursuant to Rule 144A(d)(4) or have determined not to request such information.
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You and the Company are entitled to rely upon this Certificate and are irrevocably authorized to produce this Certificate or a copy hereof to any interested party in any administrative or legal proceeding or official inquiry with respect to the matters covered hereby.
Very truly yours, | ||
[NAME OF PURCHASER (FOR TRANSFERS) OR OWNER (FOR EXCHANGES)] | ||
By: |
|
Name: |
|
Title: |
|
Address: |
|
Date: |
|
C-2
EXHIBIT D
Accredited Investor Certificate
_________, ____
[ ] |
[ ] |
Attention: [ ]
Re: | Warrants to acquire Common Stock of McDermott International, Inc. (the Warrants) Issued under the Warrant Agreement (the Agreement) dated as of November 29, 2018 relating to the Warrants |
Ladies and Gentlemen:
This Certificate relates to:
[CHECK A OR B AS APPLICABLE.]
☐ | A. Our proposed purchase of Warrants issued under the Agreement. |
☐ | B. Our proposed exchange of Warrants issued under the Agreement for an equal number of Warrants to be held by us. |
We hereby confirm that:
1. We are an accredited investor (an Accredited Investor) within the meaning of Rule 501 under the Securities Act of 1933, as amended (the Securities Act).
2. Any acquisition of Warrants by us will be for our own account or for the account of one or more other Accredited Investors as to which we exercise sole investment discretion.
3. We have such knowledge and experience in financial and business matters that we are capable of evaluating the merits and risks of an investment in the Warrants and we and any accounts for which we are acting are able to bear the economic risks of and an entire loss of our or their investment in the Warrants.
4. We are not acquiring the Warrants with a view to any distribution thereof in a transaction that would violate the Securities Act or the securities laws of any State of the United States or any other applicable jurisdiction; provided that the disposition of our property and the property of any accounts for which we are acting as fiduciary will remain at all times within our and their control.
5. We acknowledge that the Warrants have not been registered under the Securities Act and that the Warrants may not be offered or sold within the United States or to or for the benefit of U.S. persons except as set forth below.
D-1
We agree for the benefit of the Company, on our own behalf and on behalf of each account for which we are acting, that such Warrants may be offered, sold, pledged or otherwise transferred only in accordance with the Securities Act and any applicable securities laws of any State of the United States and only (a) to the Company or any subsidiary thereof, (b) pursuant to a registration statement that has been declared effective under the Securities Act, (c) to a person it reasonably believes is a qualified institutional buyer in compliance with Rule 144A under the Securities Act, (d) to an Accredited Investor that, prior to such transfer, delivers to the Warrant Agent a duly completed and signed certificate (the form of which may be obtained from the Warrant Agent) relating to the restrictions on transfer of the Warrants, or (e) pursuant to any other available exemption from the registration requirements of the Securities Act.
Prior to the registration of any transfer in accordance with clause (c) of the immediately preceding paragraph, we acknowledge that a duly completed and signed certificate (the form of which may be obtained from the Warrant Agent) must be delivered to the Warrant Agent. Prior to the registration of any transfer in accordance with clause (d) or (e) of the immediately preceding paragraph, we acknowledge that the Company reserves the right to require the delivery of such legal opinions, certifications or other evidence as may reasonably be required in order to determine that the proposed transfer is being made in compliance with the Securities Act and applicable state securities laws. We acknowledge that no representation is made by or on behalf of the Company or the Warrant Agent as to the availability of any exemption from the registration requirements of the Securities Act.
We understand that the Warrant Agent will not be required to accept for registration of transfer any Warrants acquired by us, except upon presentation of evidence satisfactory to the Company and the Warrant Agent that the foregoing restrictions on transfer have been complied with. We further understand that the Warrants acquired by us will bear a legend reflecting the substance of the immediately preceding paragraph. We further agree to provide to any person acquiring any of the Warrants from us a notice advising such person that resales of the Warrants are restricted as stated herein and that the Warrants will bear a legend to that effect.
We agree to notify you promptly in writing if any of our acknowledgments, representations or agreements herein ceases to be accurate and complete.
We represent to you that we have full power to make the foregoing acknowledgments, representations and agreements on our own behalf and on behalf of any account for which we are acting.
You and the Company are entitled to rely upon this Certificate and are irrevocably authorized to produce this Certificate or a copy hereof to any interested party in any administrative or legal proceeding or official inquiry with respect to the matters covered hereby.
Very truly yours, | ||
[NAME OF PURCHASER (FOR TRANSFERS) OR OWNER (FOR EXCHANGES)] | ||
By: |
|
Name: |
|
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Title: |
|
Address: |
|
Date: |
|
Upon transfer, the Warrants would be registered in the name of the new beneficial owner as follows:
| ||
Taxpayer ID number: |
|
D-3
Exhibit 10.1
Execution Version
REGISTRATION RIGHTS AGREEMENT
BY AND AMONG
MCDERMOTT INTERNATIONAL, INC.
AND
THE PURCHASERS PARTY HERETO
Table of Contents
Page | ||||||
ARTICLE I DEFINITIONS |
1 | |||||
Section 1.01 |
Definitions | 1 | ||||
Section 1.02 |
Registrable Securities | 4 | ||||
Section 1.03 |
Rules of Construction | 5 | ||||
ARTICLE II REGISTRATION RIGHTS |
5 | |||||
Section 2.01 |
Shelf Registration | 5 | ||||
Section 2.02 |
Delay Rights | 7 | ||||
Section 2.03 |
Underwritten Offering | 8 | ||||
Section 2.04 |
Sale Procedures | 9 | ||||
Section 2.05 |
Cooperation by Holders | 13 | ||||
Section 2.06 |
Restrictions on Sales | 13 | ||||
Section 2.07 |
Expenses | 13 | ||||
Section 2.08 |
Indemnification | 13 | ||||
Section 2.09 |
Rule 144 Reporting | 15 | ||||
Section 2.10 |
Transfer or Assignment of Registration Rights | 16 | ||||
Section 2.11 |
Liquidated Damages Payments Under Certain Circumstances | 16 | ||||
Section 2.12 |
Limitations on Subsequent Registration Rights | 17 | ||||
ARTICLE III MISCELLANEOUS |
17 | |||||
Section 3.01 |
Termination and Effect of Termination | 17 | ||||
Section 3.02 |
Notices and Communications | 17 | ||||
Section 3.03 |
Entire Agreement | 18 | ||||
Section 3.04 |
Amendments and Waivers | 19 | ||||
Section 3.05 |
Binding Effect; Benefits of This Agreement | 19 | ||||
Section 3.06 |
Assignment of Holders Rights | 19 | ||||
Section 3.07 |
Recapitalization, Exchanges, Etc. | 19 | ||||
Section 3.08 |
Specific Performance | 19 | ||||
Section 3.09 |
Governing Law; Jurisdiction and Venue; Waiver of Jury Trial | 20 | ||||
Section 3.10 |
Severability | 20 | ||||
Section 3.11 |
Counterparts | 21 | ||||
Section 3.12 |
Table of Contents and Headings | 21 | ||||
Section 3.13 |
No Adverse Interpretation of Other Agreements | 21 | ||||
Section 3.14 |
No Presumption | 21 | ||||
Section 3.15 |
Obligations Limited to Parties to This Agreement | 21 |
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This REGISTRATION RIGHTS AGREEMENT (this Agreement) is made and entered into as of November 29, 2018, by and among McDermott International, Inc., a company organized under the laws of the Republic of Panama (the Company), and the purchasers specified on the signature pages hereof (the Purchasers).
WHEREAS, this Agreement is entered into in connection with the closing of the issuance of the Preferred Shares (as defined below) and the Warrants (as defined below) to the Purchasers pursuant to the Securities Purchase Agreement, dated October 30, 2018 (the Purchase Agreement), by and among the Company and the Purchasers; and
WHEREAS, the Company has agreed to provide the registration and other rights set forth in this Agreement for the benefit of the Purchasers pursuant to the Purchase Agreement; and
WHEREAS, it is a condition to the obligations of the Purchasers and the Company under the Purchase Agreement that this Agreement be executed and delivered.
NOW THEREFORE, in consideration of the mutual covenants and agreements set forth herein and for good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged by each party hereto, the parties hereby agree as follows:
ARTICLE I
DEFINITIONS
Section 1.01 Definitions. Capitalized terms used herein without definition shall have the meanings given to them in the Purchase Agreement. The terms set forth below are used herein as so defined:
Affiliate has the meaning assigned to such term, as of the date hereof, in Rule 405 under the Securities Act.
Agreement has the meaning specified therefor in the introductory paragraph to this Agreement.
Beneficially Own has the meaning assigned to such term in Rule 13d-3 and Rule 13d-5 under the Exchange Act, except that in calculating the beneficial ownership of any particular person (as that term is used in Section 13(d)(3) of the Exchange Act), such person will be deemed to have beneficial ownership of all securities that such person has the right to acquire by conversion or exercise of other securities, whether such right is currently exercisable or is exercisable only after the passage of time.
Board means the Board of Directors of the Company or, with respect to any action to be taken by the Board of Directors, any committee of the Board of Directors duly authorized to take such action.
Business Day means any day other than a Saturday, Sunday, any federal legal holiday or day on which banking institutions in the State of New York or State of Texas are authorized or required by law or other governmental action to close.
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Certificate of Designation means the Certificate of Designation of 12% Redeemable Preferred Stock of the Company, dated as of October 30, 2018.
Closing Date means November 29, 2018.
Common Share Price means the volume weighted average closing price of Common Shares (as reported by the NYSE or, if the NYSE is not the primary securities exchange or market for the Common Shares, such primary securities exchange or market) for the ten (10) trading days immediately preceding the date on which the determination is made (or, if such price is not available, as determined in good faith by the Board).
Common Shares means the shares of common stock, par value $1.00 per share, of the Company.
Company has the meaning specified therefor in the introductory paragraph to this Agreement.
Delay Notice has the meaning specified therefor in Section 2.02.
Effective Date means, with respect to a particular Shelf Registration Statement, the date of effectiveness of such Shelf Registration Statement.
Effectiveness Period means, with respect to a Shelf Registration Statement, the period beginning on the Effective Date for the Shelf Registration Statement and ending at the time all Registrable Securities the sale or distribution of which is covered by such Shelf Registration Statement shall have ceased to be Registrable Securities.
Electing Holders has the meaning specified therefor in Section 2.03.
Exchange Act means the U.S. Securities Exchange Act of 1934, as amended, and the rules and regulations of the SEC promulgated thereunder.
FINRA has the meaning specified therefor in Section 2.04(f).
Governmental Authority means any federal, state, local or foreign government, or other governmental, regulatory or administrative authority, agency or commission or any court, tribunal, or judicial or arbitral body.
Holder means the record holder of any Registrable Securities.
Interruption Period has the meaning specified therefor in Section 2.04.
Law means any statute, law, ordinance, regulation, rule, order, code, governmental restriction, decree, injunction or other requirement of law, or any judicial or administrative interpretation thereof, of any Governmental Authority.
Liquidated Damages Payments has the meaning specified therefor in Section 2.11(a).
Losses has the meaning specified therefor in Section 2.08(a).
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Managing Underwriter means, with respect to an Underwritten Offering, the book-running lead manager for an Underwritten Offering.
NYSE means the New York Stock Exchange.
Person means any individual, corporation, company, voluntary association, partnership, joint venture, trust, limited liability company, unincorporated organization, government or any agency, instrumentality or political subdivision thereof or any other form of entity.
Preferred Shares means the shares of 12% Redeemable Preferred Stock, par value $1.00 per share, of the Company issued by the Company to the Purchasers pursuant to the Purchase Agreement, and all securities issued upon division or combination of, or in substitution for, such shares of Series A preferred stock, including any Substantially Equivalent Security (as defined in the Certificate of Designation).
Purchase Agreement has the meaning specified therefor in the recitals to this Agreement.
Purchasers has the meaning specified therefor in the introductory paragraph to this Agreement.
Registrable Securities means, subject to Section 1.02, (i) the Common Shares issued or issuable upon the exercise of the Warrants and (ii) the Common Shares issued in lieu of a cash redemption payment as a result of a Cash Election (as defined in the Certificate of Designation).
Registrable Securities Amount means the calculation based on the product of the Common Share Price times the number of applicable Registrable Securities.
Registration Default has the meaning specified therefor in Section 2.11(a).
Registration Expenses means the following expenses incident to the Companys performance under or compliance with this Agreement to effect the registration of Registrable Securities on a Shelf Registration Statement pursuant to Section 2.01 or an Underwritten Offering covered under this Agreement, and the disposition of such Registrable Securities, including, all registration, filing, securities exchange listing and NYSE fees, all registration, filing, qualification and other fees and expenses of complying with securities or blue sky laws, fees of the FINRA, fees of transfer agents and registrars, all word processing, duplicating and printing expenses, and the fees and disbursements of counsel and independent public accountants for the Company, including the expenses of any special audits or comfort letters required by or incident to such performance and compliance, and up to $50,000 of reasonable and documented fees and expenses of one counsel for all Holders for Underwritten Offerings hereunder.
Required Holders means Holders of greater than 50% of the Registrable Securities initially subject to this Agreement.
Resale Shelf Registration Statement has the meaning specified therefor in Section 2.01(a).
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SEC means the U.S. Securities and Exchange Commission.
Securities Act means the U.S. Securities Act of 1933, as amended, and the rules and regulations of the SEC promulgated thereunder.
Selling Expenses means all underwriting discounts and selling commissions or similar fees or arrangements and related expenses allocable to the sale of the Registrable Securities, transfer taxes and fees and disbursements of counsel to the Selling Holders, except for the reasonable fees and disbursements of counsel for the Selling Holders required to be paid by the Company pursuant to Section 2.08, if applicable.
Selling Holder means a Holder who is selling Registrable Securities under a registration statement pursuant to the terms of this Agreement.
Selling Holder Indemnified Persons has the meaning specified therefor in Section 2.08(a).
Shelf Registration Statement means a registration statement under the Securities Act to permit the public resale of the Registrable Securities from time to time as permitted by Rule 415 under the Securities Act (or any successor or similar provision adopted by the SEC then in effect), including the Resale Shelf Registration Statement or a Subsequent Shelf Registration Statement, as applicable.
Subsequent Shelf Registration Statement has the meaning specified therefor in Section 2.01(b).
Underwritten Offering means the offering (including an offering pursuant to a Shelf Registration Statement) in which Registrable Securities are sold to one or more underwriters on a firm commitment basis for reoffering to the public or an offering that is a bought deal or block trade with one or more investment banks.
Underwritten Offering Notice has the meaning specified therefor in Section 2.03.
Underwritten Offering Threshold means $25 million of Registrable Securities (calculated based on the Registrable Securities Amount of Common Shares).
Warrants means the Series A warrants, and all warrants issued upon division or combination of, or in substitution for such warrants, issued pursuant to the Warrant Agreement, to be dated as of the Closing Date, among the Company, Computershare Inc. and Computershare Trust Company, N.A. (the Warrant Agreement).
Section 1.02 Registrable Securities. Any Registrable Security shall cease to be a Registrable Security at the earliest of the following: (a) when a registration statement covering the sale or distribution of such Registrable Security becomes or has been declared effective by the SEC and such Registrable Security has been sold or disposed of pursuant to such effective registration statement; (b) when such Registrable Security has been sold or disposed of (excluding transfers or assignments by a Holder to an Affiliate) pursuant to Rule 144 under the Securities Act (or any successor or similar provision adopted by the SEC then in effect) under circumstances in
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which all of the applicable conditions of Rule 144 (as then in effect) are met; (c) when such Registrable Security is held by the Company or one of its subsidiaries or ceases to be outstanding (whether as a result of repurchase or cancellation); or (d) when such Registrable Security has been sold or disposed of in a private transaction in which the transferors rights under this Agreement are not assigned to the transferee of such securities pursuant to Section 2.10.
Section 1.03 Rules of Construction. Unless the context otherwise requires, as used in this Agreement:
(a) a defined term has the meaning assigned to it for all purposes of this Agreement, regardless of where it is defined herein;
(b) or is not exclusive but shall be used in the inclusive sense of and/or;
(c) defined terms and other words used in the singular shall be deemed to include the plural, and vice versa;
(d) The terms herein, hereof and hereunder and words of similar import refer to this Agreement as a whole and not to any particular Article, Section or other subdivision of this Agreement;
(e) when the words include, includes or including are used herein, they shall be deemed to be followed by the phrase without limitation;
(f) unless expressly qualified otherwise (e.g., by Business or trading), all references to days are deemed to be references to calendar days;
(g) all references to Sections or Articles refer to Sections or Articles of this Agreement unless otherwise indicated; and
(h) references to agreements or instruments, or to statutes or regulations, are to such agreements or instruments, or statutes or regulations, as amended, supplemented or modified from time to time (or to successor statutes and regulations).
ARTICLE II
REGISTRATION RIGHTS
Section 2.01 Shelf Registration.
(a) Resale Shelf Registration Statements. Within 90 days of the Closing Date, the Company shall use its commercially reasonable efforts to prepare and file with the SEC a registration statement covering the sale or distribution from time to time by the Holders, on a delayed or continuous basis pursuant to Rule 415 of the Securities Act, to permit the public resale of all Registrable Securities on the terms and conditions specified in this Section 2.01 (the Resale Shelf Registration Statement). If any additional Common Shares become Registrable Securities, the Company shall use its commercially reasonable efforts to amend the Shelf Registration Statement, or file a new Shelf Registration Statement, within 10 days to include such additional Common Shares. The Resale Shelf Registration Statement shall not include the
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Registrable Securities of any Person who is not a Holder under this Agreement. Each Resale Shelf Registration Statement filed with the SEC pursuant to this Section 2.01 shall be on Form S-3 or, if Form S-3 is not then available to the Company, on Form S-1 or such other form of registration statement as is then available to effect a registration for resale of the Registrable Securities, covering the Registrable Securities, and shall contain a prospectus in such form as to permit any Selling Holder covered by such Resale Shelf Registration Statement to sell such Registrable Securities pursuant to Rule 415 under the Securities Act (or any successor or similar provision adopted by the SEC then in effect) at any time beginning on the Effective Date for such Resale Shelf Registration Statement and while such Resale Shelf Registration continues to be effective under the Securities Act. The Company shall use its commercially reasonable efforts to cause any Resale Shelf Registration Statement filed pursuant to this Section 2.01 to be declared effective as soon as practicable after the filing thereof (it being agreed that each Resale Shelf Registration Statement shall be an automatic shelf registration statement that shall become effective upon filing with the SEC pursuant to Rule 462(e) if Rule 462(e) is available to the Company), but in any event by the first anniversary of the Closing Date.
(b) Subsequent Shelf Registration Statement. If a Shelf Registration Statement filed pursuant to this Agreement ceases to be effective under the Securities Act for any reason at any time during the Effectiveness Period, the Company shall use its commercially reasonable efforts as promptly as is reasonably practicable to cause such Shelf Registration Statement to again become effective under the Securities Act, and shall use its commercially reasonable efforts as promptly as is reasonably practicable to amend such Shelf Registration Statement in a manner reasonably expected to result in the withdrawal of any order of the SEC suspending the effectiveness of such Shelf Registration Statement or file an additional registration statement (a Subsequent Shelf Registration Statement) for an offering to be made on a delayed or continuous basis pursuant to Rule 415 of the Securities Act registering the resale from time to time by the Holders thereof of all securities that are Registrable Securities as of the time of such filing and not registered pursuant to another Shelf Registration Statement. If the sale or distribution of any Registrable Securities is not included by the Company on the Resale Shelf Registration Statement, the Company shall, upon written request by the Required Holders, file a Subsequent Shelf Registration Statement. If a Subsequent Shelf Registration Statement is filed, the Company shall use its commercially reasonable efforts to cause such Subsequent Shelf Registration Statement to become effective under the Securities Act as promptly as is reasonably practicable after the filing thereof (it being agreed that the Subsequent Shelf Registration Statement shall be an automatic shelf registration statement that shall become effective upon filing with the SEC pursuant to Rule 462(e) if Rule 462(e) is available to the Company) and (b) keep such Subsequent Shelf Registration Statement continuously effective until the end of the Effectiveness Period. Any such Subsequent Shelf Registration Statement shall be a registration statement on Form S-3 to the extent that the Company is eligible to use such form. Otherwise, such Subsequent Shelf Registration Statement shall be on another appropriate form and shall provide for the registration of such Registrable Securities for resale by the Holders in accordance with any reasonable method of distribution elected by the Required Holders.
(c) Effectiveness Period. A Shelf Registration Statement shall provide for the resale pursuant to any method or combination of methods legally available to, and requested by, the Selling Holders, including by way of an Underwritten Offering, if such an election has been made pursuant to Section 2.03. During the Effectiveness Period, the Company shall, subject to the
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applicable provisions of the Securities Act, use its commercially reasonable efforts to cause a Shelf Registration Statement filed pursuant to this Section 2.01 to remain effective, and to be supplemented and amended to the extent necessary to ensure that such Shelf Registration Statement is available or, if not available, that another registration statement is available for the resale of the Registrable Securities until all Registrable Securities have ceased to be Registrable Securities. The Company shall prepare and file all necessary information with the NYSE (or such other national securities exchange on which the Registrable Securities are then listed and traded) to list the Registrable Securities covered by a Shelf Registration Statement and shall use its commercially reasonable efforts to have such Registrable Securities approved for listing on the NYSE (or such other national securities exchange on which the Registrable Securities are then listed and traded) by the date of any sale or distribution of such Registrable Securities, subject only to official notice of issuance. As soon as practicable following the Effective Date of a Shelf Registration Statement, but in any event within three Business Days of such date, the Company shall notify the Holders of the effectiveness of such Shelf Registration Statement.
(d) Underwriting. If the Managing Underwriter of the proposed Underwritten Offering of Registrable Securities advises the Company that the inclusion of all of the Selling Holders Registrable Securities that the Selling Holders intend to include in such offering exceeds the number that can be sold in such offering without being likely to have a material adverse effect on the price, timing or distribution of the Registrable Securities offered or the market for the Registrable Securities, then the Registrable Securities to be included in an Underwritten Offering shall include the number of Registrable Securities that such Managing Underwriter advises the Company can be sold without having such material adverse effect, with such number to be allocated to the Selling Holders, allocated among such Selling Holders pro rata on the basis of the number of Registrable Securities held by each such Selling Holder or in such other manner as such Selling Holders may agree.
Section 2.02 Delay Rights. Notwithstanding anything to the contrary contained herein, the Company may, upon written notice (a Delay Notice) to (i) all Holders, delay the filing of a Shelf Registration Statement required under Section 2.01, or (ii) all Selling Holders whose Registrable Securities are included in a Shelf Registration Statement or other registration statement contemplated by this Agreement, suspend such Selling Holders use of any prospectus that is a part of such Shelf Registration Statement or other registration statement (in which event the Selling Holder shall discontinue sales of the Registrable Securities pursuant to such Shelf Registration Statement or other registration statement contemplated by this Agreement but may settle any previously made sales of Registrable Securities) if the Company (x) is pursuing an acquisition, merger, tender offer, reorganization, disposition, financing, securities offering or other similar transaction and the Board determines in good faith that (A) the Companys ability to pursue or consummate such a transaction would be materially adversely affected by any required disclosure of such transaction in such Shelf Registration Statement or other registration statement (in each case, including any document incorporated by reference therein) or (B) such transaction or the pursuit thereof renders the Company unable to comply with SEC requirements, in each case under circumstances that would make it impractical or inadvisable to cause the Shelf Registration Statement (or such filings) to become effective or to promptly amend or supplement the Shelf Registration Statement on a post-effective basis, as applicable, (y) has experienced some other material non-public event the disclosure of which at such time, in the good faith judgment of the Board, would materially adversely affect the Company or (z) would, in the absence of such delay
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or suspension, either be required to prematurely disclose material information that the Company has a bona fide business purpose for preserving as confidential or would be rendered unable to comply with the requirements under the Securities Act or the Exchange Act; provided, however, in no event shall (A) such filing of such Shelf Registration Statement be delayed under this Section 2.02 for a period that exceeds 90 calendar days or (B) such Selling Holders be suspended under this Section 2.02 from selling Registrable Securities pursuant to such Shelf Registration Statement or other registration statement for a period that exceeds an aggregate of 90 calendar days in any 365 calendar-day period, in each case, exclusive of days covered by any lock-up agreement executed by a Selling Holder in connection with an Underwritten Offering. The Holders agree to keep the existence and contents of any Delay Notice confidential and not to use such information for any other purpose. Upon disclosure of such information or the termination of the condition described above, the Company shall provide prompt notice, but in any event within one Business Day of such disclosure or termination, to the Selling Holders whose Registrable Securities are included in such Shelf Registration Statement and shall promptly terminate any suspension of sales it has put into effect and shall take such other reasonable actions to permit registered sales of Registrable Securities as contemplated in this Agreement.
Section 2.03 Underwritten Offering. In the event that one or more Holders elect to sell or distribute at least an Underwritten Offering Threshold in the aggregate pursuant to a Shelf Registration Statement pursuant to an Underwritten Offering of Common Shares, such Holder(s) shall deliver a written notice of such election to the Company (such request, an Underwritten Offering Notice, and such electing Holders, the Electing Holders); provided, however, that the Required Holders shall have the option and right to require the Company to effect not more than two Underwritten Offerings pursuant to and subject to the conditions of this Section 2.03. Upon delivery of such Underwritten Offering Notice to the Company, the Company shall as soon as practicable (but in no event later than two Business Days following the date of delivery of an Underwritten Offering Notice to the Company) deliver notice of such Underwritten Offering Notice to all other Holders, who shall then have two Business Days (or one Business Day in the case of an underwritten bought deal or block trade) from the date that such notice is given to them to notify the Company in writing of the number of Registrable Securities held by such Holder that they want to be included in an Underwritten Offering. Upon receipt of an Underwritten Offering Notice, the Company shall as soon as practicable use its commercially reasonable efforts to facilitate an Underwritten Offering. In the case of an underwritten bought deal or block trade, an Underwritten Offering Notice shall be given not less than three Business Days prior to the day the offering is to commence. In connection with an Underwritten Offering of Registrable Securities under this Agreement, the Managing Underwriter or Underwriters shall be selected by the Electing Holders and shall be reasonably acceptable to the Company. In connection with an Underwritten Offering contemplated by this Agreement in which a Selling Holder participates, each Selling Holder and the Company shall be obligated to enter into an underwriting agreement that contains such representations, warranties, covenants, indemnities and other rights and obligations as are customary in underwriting agreements for firm commitment offerings of securities. No Selling Holder may participate in an Underwritten Offering unless such Selling Holder agrees to sell its Registrable Securities on the basis provided in such underwriting agreement and completes and executes all questionnaires, powers of attorney, indemnities and other documents reasonably required under the terms of such underwriting agreement. No Selling Holder shall be required to make any representations or warranties to or agreements with the Company or the underwriters other than representations, warranties or agreements regarding such
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Selling Holder, its authority to enter into such underwriting agreement and to sell, and its ownership of, the securities whose offer and resale will be registered, on its behalf, its intended method of distribution and any other representation required by applicable Law. If any Selling Holder disapproves of the terms of an underwriting, such Selling Holder may elect to withdraw therefrom by notice to the Company, the Electing Holders and the Managing Underwriter; provided, however, that any such withdrawal must be made no later than the time of pricing of an Underwritten Offering. If all Selling Holders withdraw from an Underwritten Offering prior to the pricing of an Underwritten Offering or if the registration statement relating to an Underwritten Offering is suspended pursuant to Section 2.02, the events will not be considered to be an Underwritten Offering and the Holders will continue to have the right and option to request an Underwritten Offering under this Section 2.03. No such withdrawal or abandonment shall affect the Companys obligation to pay Registration Expenses pursuant to Section 2.07.
Section 2.04 Sale Procedures. In connection with its obligations under this Article II, the Company shall, as expeditiously as possible:
(a) prepare and promptly file with the SEC a Shelf Registration Statement with respect to any Registrable Securities and use commercially reasonable efforts to cause such Shelf Registration Statement to become and remain effective for the Effectiveness Period, in accordance with and subject to the applicable provisions of this Agreement and the Securities Act;
(b) furnish to the Holders legal counsel copies of each Shelf Registration Statement and the prospectus included therein (including each preliminary prospectus) proposed to be filed and provide such legal counsel a reasonable opportunity to review and comment on any such Shelf Registration Statement;
(c) prepare and file with the SEC such amendments (including post-effective amendments) and supplements to any Shelf Registration Statement and the prospectus used in connection herewith as may be necessary to keep any such Shelf Registration Statement effective for the Effectiveness Period and as may be necessary to comply with the provisions of the Securities Act with respect to the disposition of all Registrable Securities covered by any such Shelf Registration Statement in accordance with the Selling Holders intended method of distribution set forth in such Shelf Registration Statement;
(d) to the extent not publicly available, furnish or otherwise make available to each Selling Holder (i) as far in advance as reasonably practicable before filing a Shelf Registration Statement or any other registration statement contemplated by this Agreement or any supplement or amendment thereto, upon request, copies of reasonably complete drafts of all such documents proposed to be filed (including exhibits and each document incorporated by reference therein to the extent then required by the rules and regulations of the SEC other than annual or quarterly reports on Forms 10-K or 10-Q, respectively, current reports on Form 8-K or proxy statements; provided, however, that such reports or proxy statements shall be provided at least two Business Days prior to filing in connection with an Underwritten Offering), and provide each such Selling Holder the opportunity to object to any information pertaining to such Selling Holder and its plan of distribution that is contained therein and make the corrections reasonably requested by such Selling Holder with respect to such information prior to filing a Shelf Registration Statement or such other registration statement or supplement or amendment thereto, and (ii) such number of
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copies of such Registration Statement or such other registration statement and the prospectus included therein and any supplements and amendments thereto as such Selling Holder may reasonably request in order to facilitate the public sale or other disposition of the Registrable Securities covered by such Shelf Registration Statement or other registration statement;
(e) if applicable, use its commercially reasonable efforts to register or qualify the Registrable Securities covered by a Shelf Registration Statement or any other registration statement contemplated by this Agreement under the securities or blue sky laws of such jurisdictions as the Selling Holders or, in the case of an Underwritten Offering, the Managing Underwriter, shall reasonably request; provided, however, that the Company shall not be required to qualify generally to transact business in any jurisdiction where it is not then required to so qualify or to take any action that would subject it to general service of process or taxation in any such jurisdiction where it is not then so subject;
(f) cooperate with the Selling Holders and each underwriter or agent participating in the disposition of Registrable Securities and their respective counsel in connection with any filings required to be made with Financial Industry Regulatory Authority, Inc. (FINRA), including the use of commercially reasonable efforts to obtain FINRAs pre-clearance or pre-approval of the registration statement and applicable prospectus upon filing with the SEC;
(g) upon request and subject to appropriate confidentiality obligations, furnish to each Selling Holder copies of any and all transmittal letters or other material correspondence with the SEC or any other governmental agency or self-regulatory body or other body having jurisdiction (including any domestic or foreign securities exchange) relating to such offering of Registrable Securities;
(h) promptly notify each Selling Holder, at any time when a prospectus relating thereto is required to be delivered by any of them under the Securities Act, of (i) the filing of a Shelf Registration Statement or any other registration statement contemplated by this Agreement or any prospectus or prospectus supplement to be used in connection therewith, or any amendment or supplement thereto, and, with respect to such Shelf Registration Statement or any other registration statement or any post-effective amendment thereto, when the same has become effective; (ii) the receipt of any written comments from the SEC with respect to any filing referred to in clause (i); and (iii) any written request by the SEC for amendments or supplements to such Shelf Registration Statement or any other registration statement or any prospectus or prospectus supplement thereto or for additional information;
(i) promptly notify each Selling Holder, at any time when a prospectus relating thereto is required to be delivered under the Securities Act, of (i) the happening of any event as a result of which the prospectus or prospectus supplement contained in a Shelf Registration Statement or any other registration statement contemplated by this Agreement, as then in effect, includes an untrue statement of a material fact or omits to state any material fact required to be stated therein or necessary to make the statements therein not misleading (in the case of any prospectus contained therein, in the light of the circumstances under such statements are made); (ii) the issuance or express threat of issuance by the SEC of any stop order suspending the effectiveness of such Shelf Registration Statement or any other registration statement contemplated by this Agreement, or the initiation of any proceedings for that purpose; or (iii) the receipt by the Company of any
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notification with respect to the suspension of the qualification of any Registrable Securities for sale under the applicable securities or blue sky laws of any jurisdiction. Following the provision of such notice, the Company agrees to as promptly as practicable amend or supplement the prospectus or prospectus supplement or take other appropriate action so that the prospectus or prospectus supplement does not include an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading in the light of the circumstances under which they are made and to take such other commercially reasonable action as is necessary to remove a stop order, suspension, threat thereof or proceedings related thereto;
(j) in connection with a customary due diligence review, make available for inspection by any Selling Holder, any Managing Underwriter or any other underwriter participating in any such disposition of Registrable Securities, and any counsel or accountants retained by such Selling Holder, Managing Underwriter or underwriter, at the offices where normally kept, during reasonable business hours, all financial and other records, pertinent corporate documents of the Company and its subsidiaries, and cause the officers, directors and employees of the Company and its subsidiaries to supply all information and participate in customary due diligence sessions in each case reasonably requested by any such Selling Holder, Managing Underwriter, underwriter, counsel or accountant in connection with such Registration Statement, subject to appropriate confidentiality obligations;
(k) in the case of an Underwritten Offering, use its commercially reasonable efforts to furnish to the underwriters, (i) an opinion of counsel for the Company dated the date of the closing under the underwriting agreement, addressed to the underwriters, and (ii) a customary comfort letter, dated the pricing date of an Underwritten Offering and a bring-down comfort letter dated the date of the closing under the underwriting agreement, in each case addressed to the underwriters, signed by the independent public accountants who have certified the Companys financial statements included or incorporated by reference into the applicable registration statement, and each of the opinion and the comfort letter shall be in customary form and covering substantially the same matters with respect to such registration statement (and the prospectus and any prospectus supplement included therein) as have been customarily covered in opinions of issuers counsel and in accountants letters delivered to the underwriters in underwritten offerings of securities by the Company and such other matters as such underwriters may reasonably request;
(l) in the event that the Registrable Securities are being offered in an Underwritten Offering, enter into an underwriting agreement in accordance with the applicable provisions of this Agreement; provided, however, that no underwriting agreement shall require: (1) the Company to enter into a lock-up agreement unless (i) such underwriting agreement is executed in connection with an Underwritten Offering of Common Shares and (ii) the lock-up agreement required under such underwriting agreement does not exceed 60 days from the date of the pricing of such offering and contains customary exceptions from the Companys own immediately preceding underwritten offering; or (2) the officers, directors or any Affiliate of the Company to enter into a lock-up agreement;
(m) otherwise use its commercially reasonable efforts to comply with all applicable rules and regulations of the SEC, and make available to its security holders, as soon as reasonably practicable, an earnings statement, covering a period of 12 months beginning within three months after the Effective Date of such Shelf Registration Statement, which earnings statement shall satisfy the provisions of Section 11(a) of the Securities Act and Rule 158 promulgated thereunder;
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(n) use its commercially reasonable efforts to cause all such Registrable Securities registered pursuant to this Agreement to be listed on the primary securities exchange or nationally recognized quotation system on which such Registrable Securities are then listed or quoted;
(o) use its commercially reasonable efforts to cause the Registrable Securities to be registered with or approved by such other governmental agencies or authorities as may be necessary by virtue of the business and operations of the Company to enable the Selling Holders to consummate the disposition of such Registrable Securities;
(p) provide a transfer agent and registrar for all Registrable Securities covered by such registration statement not later than the Effective Date of such registration statement;
(q) enter into customary agreements and take such other actions as are reasonably requested by the Selling Holders or the underwriters, if any, in order to expedite or facilitate the disposition of such Registrable Securities (including, in the case of an Underwritten Offering, making appropriate officers of the Company available to participate in no more than one telephonic road show presentation before analysts), and other customary marketing activities (including one-on-one conference calls with prospective purchasers of the Registrable Securities)); and
(r) if requested by the Managing Underwriter or underwriters, or any Selling Holder, (i) as soon as practicable incorporate in a prospectus supplement or post-effective amendment such information as the Managing Underwriter or underwriters, or any Selling Holder reasonably requests to be included therein relating to the sale and distribution of Registrable Securities, including information with respect to the number of Registrable Securities being offered or sold, the purchase price being paid therefor and any other terms of the offering of the Registrable Securities to be sold in such offering, and (ii) as soon as practicable make all required filings of such prospectus supplement or post-effective amendment after being notified of the matters to be incorporated in such prospectus supplement or post-effective amendment.
The Company shall not name a Holder as an underwriter as defined in Section 2(a)(11) of the Securities Act in any Shelf Registration Statement without such Holders consent.
Each Selling Holder, upon receipt of notice from the Company of the happening of any event of the kind described in Section 2.04(h)(iii) or Section 2.04(i) shall forthwith discontinue offers and sales of the Registrable Securities by means of a prospectus or prospectus supplement until such Selling Holders receipt of the copies of the supplemented or amended prospectus contemplated by Section 2.04(h)(iii) or Section 2.04(i) or until it is advised in writing by the Company that the use of the prospectus may be resumed and has received copies of any additional or supplemental filings incorporated by reference in the prospectus (such period during which disposition is discontinued being an Interruption Period), and, if so directed by the Company, such Selling Holder shall, or shall request the Managing Underwriter, if any, to deliver to the Company (at the Companys expense) all copies in their possession or control, other than permanent file copies then in such Selling Holders possession, of the prospectus covering such Registrable Securities current at the time of receipt of such notice. As soon as practicable after the
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Company has determined that the use of the applicable prospectus may be resumed, the Company will notify the Selling Holders thereof. In the event the Company invokes an Interruption Period hereunder and, in the discretion of the Company, the need for the Company to continue the Interruption Period ceases for any reason, the Company shall, as soon as reasonably practicable, provide written notice to the Selling Holders that such Interruption Period is no longer applicable.
Section 2.05 Cooperation by Holders. The Company shall have no obligation to include Registrable Securities of a Holder in a registration statement who has failed to timely furnish after receipt of a written request from the Company such information that the Company determines, after consultation with its counsel, is reasonably required in order for the registration statement or prospectus supplement, as applicable, to comply with the applicable provisions of the Securities Act.
Section 2.06 Restrictions on Sales. To the extent requested by the Managing Underwriter, each Holder of Registrable Securities that participates in an Underwritten Offering will enter into a customary letter agreement with underwriters providing such Holder will not effect any public sale or distribution of Registrable Securities during the period of 60 days beginning on the date of a prospectus or prospectus supplement filed with the SEC with respect to the pricing of an Underwritten Offering, provided that (i) the duration of the foregoing restrictions shall be no longer than the duration of the shortest restriction generally imposed by the underwriters on the Company and (ii) the restrictions set forth in this Section 2.06 shall not apply to any Registrable Securities that are included in an Underwritten Offering by such Holder.
For the avoidance of doubt, this Section 2.06 shall not apply to any Holder that does not elect to participate in an Underwritten Offering.
Section 2.07 Expenses. The Company shall pay all reasonable Registration Expenses, as determined in good faith by the Board, including, in the case of an Underwritten Offering, the Registration Expenses of an Underwritten Offering, regardless of whether any sale is made pursuant to an Underwritten Offering. Each Selling Holder shall pay its pro rata share of all Selling Expenses in connection with any sale of its Registrable Securities hereunder. For the avoidance of doubt, each Selling Holders pro rata allocation of Selling Expenses shall be the percentage derived by dividing (i) the number of Registrable Securities sold by such Selling Holder in connection with such sale by (ii) the aggregate number of Registrable Securities sold by all Selling Holders in connection with such sale. In addition, except as otherwise provided in this Section 2.07 and Section 2.08, the Company shall not be responsible for legal fees incurred by Holders in connection with the exercise of such Holders rights hereunder.
Section 2.08 Indemnification.
(a) By the Company. In the event of a registration of any Registrable Securities under the Securities Act pursuant to this Agreement, the Company shall indemnify and hold harmless each Selling Holder thereunder, and its directors, officers, managers, employees, agents and Affiliates and each Person, if any, who controls such Selling Holder or its Affiliates within the meaning of the Securities Act and the Exchange Act, and its directors, officers, employees or agents (collectively, the Selling Holder Indemnified Persons), against any losses, claims, damages, expenses or liabilities (including reasonable attorneys fees and expenses) (collectively,
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Losses), joint or several, to which such Selling Holder Indemnified Person may become subject under the Securities Act, the Exchange Act or otherwise, insofar as such Losses (or actions or proceedings, whether commenced or threatened, in respect thereof) arise out of or are based upon any untrue statement or alleged untrue statement of any material fact (in the case of any prospectus, in light of the circumstances under which such statement is made) contained in (which, for the avoidance of doubt, includes documents incorporated by reference in) any registration statement contemplated by this Agreement, any preliminary prospectus, prospectus supplement or final prospectus contained therein, or any amendment or supplement thereof, or any free writing prospectus relating thereto or arise out of or are based upon the omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein (in the case of a prospectus, in light of the circumstances under which they were made) not misleading, and the Company shall reimburse each such Selling Holder Indemnified Person for any legal or other expenses reasonably incurred by them in connection with investigating, defending or resolving any such Loss or actions or proceedings; provided, however, that the Company shall not be liable in any such case if and to the extent that any such Loss arises out of or is based upon an untrue statement or alleged untrue statement or omission or alleged omission so made in conformity with information furnished by such Selling Holder Indemnified Person in writing specifically for use in any such document. Such indemnity shall remain in full force and effect regardless of any investigation made by or on behalf of such Selling Holder Indemnified Person, and shall survive the transfer of such securities by such Selling Holder.
(b) By Each Selling Holder. Each Selling Holder agrees severally and not jointly to indemnify and hold harmless the Company, its directors, officers, employees and agents and each Person, if any, who controls the Company within the meaning of the Securities Act or of the Exchange Act, and its directors, officers, employees and agents, to the same extent as the foregoing indemnity from the Company to the Selling Holders, but only with respect to information regarding such Selling Holder furnished in writing by or on behalf of such Selling Holder expressly for inclusion in any registration statement contemplated by this Agreement, any preliminary prospectus, prospectus supplement or final prospectus contained therein, or any amendment or supplement thereof, or any free writing prospectus relating thereto; provided, however, that the liability of each Selling Holder shall not be greater in amount than the dollar amount of the proceeds (net of any Selling Expenses) received by such Selling Holder from the sale of the Registrable Securities giving rise to such indemnification.
(c) Notice. Promptly after receipt by an indemnified party hereunder of notice of the commencement of any action, such indemnified party shall, if a claim in respect thereof is to be made against the indemnifying party hereunder, notify the indemnifying party in writing thereof, but the omission to so notify the indemnifying party shall not relieve it from any liability that it may have to any indemnified party under this Section 2.08 except to the extent that the indemnifying party is materially prejudiced in its ability to defend such action by such failure. In any action brought against any indemnified party, it shall notify the indemnifying party of the commencement thereof. The indemnifying party shall be entitled to participate in and, to the extent it shall wish, to assume and undertake the defense thereof with counsel reasonably satisfactory to such indemnified party and, after notice from the indemnifying party to such indemnified party of its election so to assume and undertake the defense thereof, the indemnifying party shall not be liable to such indemnified party under this Section 2.08 for any legal expenses subsequently incurred by such indemnified party in connection with the defense thereof; provided, however,
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that, (i) if the indemnifying party has failed to assume the defense or employ counsel reasonably acceptable to the indemnified party or (ii) if the defendants in any such action include both the indemnified party and the indemnifying party and counsel to the indemnified party shall have concluded that there may be reasonable defenses available to the indemnified party that are different from or additional to those available to the indemnifying party, or if the interests of the indemnified party reasonably may be deemed to conflict with the interests of the indemnifying party, then the indemnified party shall have the right to select one separate counsel and to assume such legal defense and otherwise to participate in the defense of such action, with the reasonable expenses and fees of such separate counsel and other reasonable expenses related to such participation to be reimbursed by the indemnifying party as incurred. Notwithstanding any other provision of this Agreement, no indemnifying party shall settle any action brought against any indemnified party with respect to which such indemnified party is entitled to indemnification hereunder without the consent of the indemnified party (which shall not be unreasonably withheld, delayed or conditioned), unless the settlement thereof imposes no liability or obligation on, and includes a complete and unconditional release from all liability of, the indemnified party. In addition, no indemnifying party shall be liable for the settlement of any action effected without its prior written consent (which shall not be unreasonably withheld, delayed or conditioned).
(d) Contribution. If the indemnification provided for in this Section 2.08 is held by a court or government agency of competent jurisdiction to be unavailable to any indemnified party or is insufficient to hold them harmless in respect of any Losses, then each such 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 Loss in such proportion as is appropriate to reflect the relative fault of the indemnifying party on the one hand and of such indemnified party on the other in connection with the statements or omissions that resulted in such Losses, as well as any other relevant equitable considerations; provided, however, that in no event shall such Selling Holder be required to contribute an aggregate amount in excess of the dollar amount of proceeds (net of Selling Expenses) received by such Selling Holder from the sale of Registrable Securities giving rise to such indemnification. The relative fault of the indemnifying party on the one hand and the indemnified party on the other shall be determined by reference to, among other things, whether the untrue or alleged untrue statement of a material fact or the omission or alleged omission to state a material fact has been made by, or relates to, information supplied by such party, and the parties relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission. The parties hereto agree that it would not be just and equitable if contributions pursuant to this paragraph were to be determined by pro rata allocation or by any other method of allocation that does not take account of the equitable considerations referred to herein. No person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any Person who is not guilty of such fraudulent misrepresentation.
(e) Other Indemnification. The provisions of this Section 2.08 shall be in addition to any other rights to indemnification or contribution that an indemnified party may have pursuant to applicable Law, contract or otherwise.
Section 2.09 Rule 144 Reporting. With a view to making available the benefits of certain rules and regulations of the SEC that may permit the sale of the Registrable Securities to the public without registration, the Company agrees to use its commercially reasonable efforts to:
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(a) make and keep public information regarding the Company available, as those terms are understood and defined in Rule 144 under the Securities Act (or any successor or similar provision adopted by the SEC then in effect), at all times from and after the date hereof;
(b) file with the SEC in a timely manner all reports and other documents required of the Company under the Securities Act and the Exchange Act at all times from and after the date hereof; and
(c) so long as a Holder owns any Registrable Securities, furnish, unless otherwise available electronically at no additional charge via the SECs EDGAR system, to such Holder forthwith upon request a copy of the most recent annual or quarterly report of the Company, and such other reports and documents as such Holder may reasonably request in availing itself of any rule or regulation of the SEC allowing such Holder to sell any such securities without registration.
Section 2.10 Transfer or Assignment of Registration Rights. The rights to cause the Company to register Registrable Securities granted to the Purchasers by the Company under this Article II may be transferred or assigned by the Purchasers to one or more transferees or assignees of Registrable Securities without the consent of the Company; provided, however, that, (a) the transfer or assignment relates to a transfer or assignment of Warrants made in accordance with the applicable provisions of the Warrant Agreement, (b) any such transfer or assignment is for a number of Registrable Securities representing an aggregate Registrable Securities Amount of at least $5 million or any such transfer or assignment is to a Permitted Transferee (as defined in the Purchase Agreement), (c) the Company is given written notice prior to any said transfer or assignment, stating the name and address of each of the transferee or assignee, (d) each such transferee or assignee assumes in writing responsibility for its portion of the obligations of the Purchasers under this Agreement and (e) the transferor or assignor is not relieved of any obligations or liabilities hereunder arising out of events occurring prior to such transfer.
Section 2.11 Liquidated Damages Payments Under Certain Circumstances.
(a) Payments (Liquidated Damages Payments) with respect to the Registrable Securities required to be covered by the Resale Shelf Registration Statement shall be assessed if the Resale Shelf Registration Statement has not been declared effective by the first anniversary of the Closing Date (a Registration Default). Liquidated Damages Payments shall accrue on such Registrable Securities (based on the Common Share Price as of such Business Day) for each such day from and including the date on which any such Registration Default occurs to but excluding the date on which all such Registration Defaults have been cured, at a rate of 6% per annum. Liquidated Damages Payments shall be paid in accordance with Section 2.11(c) below. Other than the obligation of payment of any Liquidated Damages Payments in accordance with the terms hereof, the Company will have no other liabilities for monetary damages with respect to its registration obligations. With respect to each Holder, the Companys obligations to pay Liquidated Damages Payments remain in effect only so long as the securities held by the Holder are Registrable Securities.
(b) In the event the Company provides a Delay Notice pursuant to Section 2.02, a Registration Default shall be deemed not to have occurred and be continuing, and no Liquidated Damages Payments shall accrue as a result thereof, in relation to the Resale Shelf Registration Statement or the related prospectus, until the end of the 90-day period described in Section 2.02.
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(c) Any amounts of Liquidated Damages Payments due pursuant to this Section 2.11 will be payable in cash to the applicable Holders on the regular dividend payment dates described in the Certificate of Designation; provided, however, to the extent the Company is unable to pay Liquidated Damages Payments in cash because such payment would result in a breach under a credit facility or other debt instrument, then the Company will pay such Liquidated Damages Payments using as much cash as the Company is permitted without causing a breach of or default under such credit facility or other debt instrument. The amount of Liquidated Damages Payments will be determined on the basis of a 360-day year comprised of twelve 30-day months and the actual number of days on which Liquidated Damages Payments accrued during such period.
Section 2.12 Limitations on Subsequent Registration Rights. From and after the date of this Agreement, the Company shall not, without the prior written consent of the Holders, enter into any agreement with any current or future holder of any securities of the Company that would provide such holder with rights that would allow such holder to participate with respect to any registration for the benefit of the Holders pursuant to this Agreement.
ARTICLE III
MISCELLANEOUS
Section 3.01 Termination and Effect of Termination. This Agreement shall terminate with respect to each Holder on the date as of which such Holder no longer holds any Registrable Securities (including, for the avoidance of doubt, Warrants the Common Shares issuable upon exercise of which Warrants would be Registrable Securities) and will terminate in full on the date as of which no Holder holds any Registrable Securities, except for the provisions of Section 2.06 and Section 2.07, which shall survive any such termination. No termination under this Agreement shall relieve any Person of liability for Registration Expenses or Selling Expenses incurred prior to termination. In the event this Agreement is terminated, each Person entitled to indemnification or contribution rights pursuant to Section 2.08 shall retain such rights with respect to any matter that (i) may be an indemnified liability thereunder and (ii) occurred prior to such termination.
Section 3.02 Notices and Communications. Any notice or communication by the Company, on the one hand, or any of the Holders, on the other hand, to the other shall be in writing and shall be deemed to have been duly given and received (i) when delivered in person, (ii) when actually received when mailed by first class mail, postage prepaid, (iii) when actually received by overnight delivery by a nationally recognized courier service, or (iv) when receipt has been acknowledged when sent via electronic mail email). In each case the notice or communication shall be addressed as follows:
(a) if to the Purchasers:
West Street Capital Partners VII Offshore Investments, L.P.
c/o Goldman Sachs & Co. LLC
200 West Street
New York, NY 10282
Attention: Chris Crampton
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with a copy to:
Goldman Sachs & Co. LLC
200 West Street
New York, NY 10282
Attention: General Counsel, Merchant Banking Division
with a copy (which shall not constitute notice) to:
Vinson & Elkins L.L.P.
666 Fifth Avenue, 26th Floor
New York, NY 10103
Attention: Caroline Blitzer Phillips
Email: cphillips@velaw.com
(b) if to a transferee of a Purchaser, to such Holder at the address provided pursuant to Section 2.10 above; and
(c) if to the Company:
McDermott International, Inc.
757 N. Eldridge Parkway
Houston, TX 77079
Attention: John Freeman
Email: jfreeman@mcdermott.com
with copies (which shall not constitute notice) to:
Baker Botts L.L.P.
910 Louisiana Street
Houston, TX 77002
Attention: Ted W. Paris
James H. Mayor
Email: ted.paris@bakerbotts.com
james.mayor@bakerbotts.com
or to such other address as any such party may designate in writing by notice delivered to the other parties hereto in accordance with this Section 3.02.
Section 3.03 Entire Agreement. This Agreement is intended by the parties hereto as a final expression of their agreement and intended to be a complete and exclusive statement of the agreement and understanding of the parties hereto in respect of the subject matter hereof. There are no restrictions, promises, representations, warranties or undertakings, other than those set forth or referred to herein, with respect to the rights granted by the Company set forth herein. This Agreement supersedes all prior written or oral agreements and understandings among the parties hereto with respect to such subject matter.
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Section 3.04 Amendments and Waivers. This Agreement may be amended only by means of a written amendment signed by the Company and the Holders of greater than 50% of the Registrable Securities then outstanding that are Common Shares issued or issuable upon the exercise of the Warrants; provided that any amendment of any of the provisions of this Agreement which disproportionately materially adversely affects any Holder shall not be effective without the written approval of such Holder. Any Holder may (with respect to itself), at any time: (i) extend the time for the performance of any of the obligations of the Company; or (ii) waive compliance by the Company with any of its agreements or covenants contained herein. The Company may, at any time: (i) extend the time for the performance of any of the obligations or other acts of any Holder; and (ii) waive compliance by any Holder with any of its agreements or covenants contained herein. Any such extension or waiver shall be valid only if set forth in an instrument in writing signed by the party to be bound thereby. Notwithstanding the foregoing, a waiver or consent to depart from the provisions hereof with respect to a matter that relates exclusively to the rights of Holders of Registrable Securities whose securities are to be offered or distributed pursuant to a Registration Statement, and that does not affect the rights of other Holders, may be given by Holders of greater than 50% of the Registrable Securities to be offered or distributed by such Holders pursuant to such Registration Statement.
Section 3.05 Binding Effect; Benefits of This Agreement. This Agreement shall inure to the benefit of and be binding upon each of the parties hereto and their respective successors and assigns, including subsequent Holders of Registrable Securities (but only to the extent expressly permitted herein); and, except as expressly provided in Section 2.08, nothing in this Agreement, express or implied, is intended to confer upon any other Person any legal or equitable right, remedy or claim of any nature whatsoever under or by reason of this Agreement.
Section 3.06 Assignment of Holders Rights. All or any portion of the rights and obligations of the Purchasers under this Agreement may be transferred or assigned by each such Purchaser only in accordance with Section 2.10.
Section 3.07 Recapitalization, Exchanges, Etc. The provisions of this Agreement shall apply to the full extent set forth herein with respect to any and all equity interests of the Company or any successor or assign of the Company (whether by merger, consolidation, sale of assets or otherwise) that may be issued in respect of, in exchange for or in substitution of, the Registrable Securities, and shall be appropriately adjusted for any combinations, share splits, recapitalizations, pro rata distributions of shares and the like occurring after the date of this Agreement.
Section 3.08 Specific Performance. Damages in the event of breach of this Agreement by a party hereto may be difficult, if not impossible, to ascertain, and it is therefore agreed that each such party, in addition to and without limiting any other remedy or right it may have, shall have the right to seek an injunction or other equitable relief in a court of competent jurisdiction in accordance with Section 3.09, enjoining any such breach, and enforcing specifically the terms and provisions hereof, and each of the parties hereto, to the extent permitted by applicable Law, hereby waives any and all defenses it may have on the ground of lack of jurisdiction or competence of the court to grant such an injunction or other equitable relief. The existence of this right shall not preclude any such party from pursuing any other rights and remedies at law or in equity that such party may have.
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Section 3.09 Governing Law; Jurisdiction and Venue; Waiver of Jury Trial. This Agreement shall be governed by and construed in accordance with the laws of the State of New York (without giving effect to any principles of conflicts of laws thereof that would result in the application of the laws of any other jurisdiction, except to the extent that the New York conflicts of laws principles would apply applicable Laws of the Republic of Panama to internal matters relating to corporations organized thereunder). The Company and each Holder of a Registrable Security each hereby irrevocably and unconditionally:
(a) submits for itself in any legal action or proceeding relating solely to this Agreement or the transactions contemplated hereby, to the exclusive jurisdiction of the courts of the State of New York and the Federal courts of the United States of America, in each case located within the Southern District of New York, and appellate courts thereof;
(b) consents that any such action or proceeding may be brought in such courts, and waives any objection that it may now or hereafter have to the venue of any such action or proceeding in any such court or that such action or proceeding was brought in an inconvenient court and agrees not to plead or claim the same to the extent permitted by applicable law;
(c) agrees that service of process in any such action or proceeding may be effected by mailing a copy thereof by registered or certified mail (or any substantially similar form of mail), postage prepaid, to the party, as the case may be, at its address set forth herein or in the applicable register for the Registrable Securities or at such other address of which the other party shall have been notified pursuant hereto;
(d) agrees that nothing herein shall affect the right to effect service of process in any other manner permitted by applicable Law or shall limit the right to sue in any other jurisdiction for recognition and enforcement of any judgment or if jurisdiction in the courts referenced in the foregoing clause (a) are not available despite the intentions of the parties hereto;
(e) agrees that final judgment in any such suit, action or proceeding brought in such a court may be enforced in the courts of any jurisdiction to which such party is subject by a suit upon such judgment, provided that service of process is effected upon such party in the manner specified herein or as otherwise permitted by applicable Law;
(f) agrees that to the extent that such party has or hereafter may acquire any immunity from jurisdiction of any court or from any legal process with respect to itself or its property, such party hereby irrevocably waives such immunity in respect of its obligations under this Agreement, to the extent permitted by applicable Law; and
(g) IRREVOCABLY AND UNCONDITIONALLY WAIVES TRIAL BY JURY IN ANY LEGAL ACTION OR PROCEEDING IN RELATION TO THIS AGREEMENT.
Section 3.10 Severability. Any provision of this Agreement that is invalid, illegal or unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective to the extent of such invalidity, illegality or unenforceability without invalidating the remaining provisions hereof or affecting or impairing the validity or enforceability of such provision in any other jurisdiction.
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Section 3.11 Counterparts. This Agreement may be executed in any number of counterparts and by different parties hereto in separate counterparts, each of which counterparts, when so executed and delivered, shall be deemed to be an original and all of which counterparts, taken together, shall constitute but one and the same Agreement. Delivery of an executed counterpart of a signature page to this Agreement by facsimile or .pdf attachment to electronic mail shall be effective as delivery of a manually executed counterpart to this Agreement.
Section 3.12 Table of Contents and Headings. The Table of Contents and headings of the Articles and Sections of this Agreement have been inserted for convenience of reference only, and shall not limit or otherwise affect the meaning hereof.
Section 3.13 No Adverse Interpretation of Other Agreements. This Agreement may not be used to interpret another agreement of the Company, and no such agreement may be used to interpret this Agreement.
Section 3.14 No Presumption. If any claim is made by a party hereto relating to any conflict, omission or ambiguity in this Agreement, no presumption or burden of proof or persuasion shall be implied by virtue of the fact that this Agreement was prepared by or at the request of a particular party or its counsel.
Section 3.15 Obligations Limited to Parties to This Agreement. Each of the parties hereto covenants, agrees and acknowledges that, other than as set forth herein, no Person other than the Holders, their respective permitted assignees and the Company shall have any obligation hereunder and that, notwithstanding that one or more of such Persons may be a corporation, partnership or limited liability company, no recourse under this Agreement or under any documents or instruments delivered in connection herewith shall be had against any former, current or future director, officer, employee, agent, general or limited partner, manager, member, stockholder or Affiliate of any of such Persons or their respective permitted assignees, or any former, current or future director, officer, employee, agent, general or limited partner, manager, member, stockholder or Affiliate of any of the foregoing, whether by the enforcement of any assessment or by any legal or equitable proceeding, or by virtue of any applicable Law, it being expressly agreed and acknowledged that no personal liability whatsoever shall attach to, be imposed on or otherwise be incurred by any former, current or future director, officer, employee, agent, general or limited partner, manager, member, stockholder or Affiliate of any of such Persons or any of their respective assignees, or any former, current or future director, officer, employee, agent, general or limited partner, manager, member, stockholder or Affiliate of any of the foregoing, as such, for any obligations of such Persons or their respective permitted assignees under this Agreement or any documents or instruments delivered in connection herewith or for any claim based on, in respect of or by reason of such obligation or its creation, except, in each case, for any assignee of any Holder hereunder.
(Signature pages follow)
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IN WITNESS WHEREOF, the parties hereto execute this Agreement, effective as of the date first above written.
MCDERMOTT INTERNATIONAL, INC. | ||
By: | /s/ Stuart Spence | |
Stuart Spence | ||
Executive Vice President and Chief Financial Officer |
[Signature Page to Registration Rights Agreement]
PURCHASERS: | ||
WEST STREET CAPITAL PARTNERS VII OFFSHORE INVESTMENTS, L.P. | ||
By: Goldman Sachs & Co. LLC, Duly Authorized Agent of the General Partner | ||
By: | /s/ Chris Crampton | |
Name: Chris Crampton | ||
Title: Managing Director | ||
WEST STREET CAPITAL PARTNERS VII INVESTMENTS B, L.P. | ||
By: Goldman Sachs & Co. LLC, Duly Authorized Agent of the General Partner | ||
By: | /s/ Chris Crampton | |
Name: Chris Crampton | ||
Title: Managing Director | ||
WEST STREET CAPITAL PARTNERS VII PARALLEL B, L.P. | ||
By: Goldman Sachs & Co. LLC, Duly Authorized Agent of the General Partner | ||
By: | /s/ Chris Crampton | |
Name: Chris Crampton | ||
Title: Managing Director |
[Signature Page to Registration Rights Agreement]