REGISTRATION RIGHTS AGREEMENT
THIS REGISTRATION RIGHTS AGREEMENT (this "Agreement") is made as of
September 18, 2000, by and among UNIFAB INTERNATIONAL, INC., a Louisiana
corporation (the "Company") and the persons listed on SCHEDULE A hereto
(collectively, the "Purchasers").
R E C I T A L S:
WHEREAS, the Purchasers have executed and delivered to the Company
that certain Stock Purchase Agreement (the "Purchase Agreement") pursuant
to which they will purchase in a private placement (the "Offering") shares
of the $.01 par value per share common stock (the "Common Stock") of the
Company (the "Stock Purchase");
WHEREAS, pursuant to the Purchase Agreement, the Company will issue
and sell to the Purchasers shares of Common Stock;
WHEREAS, as an inducement to and condition of the Purchasers
consummating the Stock Purchase, the Company desires to provide the
Purchasers with the registration under the Securities Act of 1933, as
amended (the "Securities Act"), of offers and resales of Common Stock
purchased by the Purchasers in the Offering (the "Primary Shares");
WHEREAS, the Company has entered into an engagement letter agreement
(the "Placement Agreement") with Morgan Keegan & Company, Inc. (the
"Placement Agent") dated June 15, 2000 pursuant to which the Company,
upon closing of the transaction pursuant to the Purchase Agreement, has
agreed to issue to the Placement Agent warrants (the "Placement Warrants")
to purchase 60,000 shares of Common Stock (the "Placement Warrant Shares");
and
WHEREAS, pursuant to the Placement Agreement the Company has agreed to
register under the Securities Act the Placement Warrant Shares to the same
extent as the Primary Shares.
NOW, THEREFORE, in consideration of the recitals made above and the
mutual covenants and agreements stated herein, and other good and valuable
consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties agree as follows:
1. CERTAIN DEFINITIONS. As used in this Agreement, the following
terms shall have the following meanings:
"BEST EFFORTS" means the taking of all commercially reasonable steps
to cause or prevent any event or condition which would have been taken in
similar circumstances by a reasonably prudent business person engaged in a
similar business for the advancement or protection of his own economic
interest in light of the consequences of failure to cause or prevent the
occurrence of such event or condition.
"CLOSING" means the closing of the Stock Purchase pursuant to the
Purchase Agreement.
"COMMISSION" means the Securities and Exchange Commission or any other
federal agency at the time administering the Securities Act.
"COMMON STOCK" has the meaning set forth in the recitals above.
"COMPANY" has the meaning set forth in the preface above.
"FORM S-3" means a registration statement on Form S-3 adopted by the
Commission under the Securities Act or any substantially similar form from
time to time in effect.
"HOLDER" means any holder of outstanding Registrable Securities which
have not been sold to the public, but only if such holder is a Purchaser.
"PENALTY WARRANT" has the meaning set forth in SECTION 9.11 below.
"PENALTY WARRANT SHARES" means shares of Common Stock issuable upon
exercise of the Penalty Warrant.
"PRIMARY SHARES" has the meaning set forth in the recitals above.
"PURCHASE AGREEMENT" has the meaning set forth in recitals above.
"PURCHASERS" has the meaning set forth in the preface above.
"REGISTER," "REGISTERED" and "REGISTRATION" refer to a registration of
the offer and sale of securities pursuant to the Securities Act effected by
preparing and filing a Registration Statement (defined below) in compliance
with the Securities Act, and the declaration or ordering of the
effectiveness of such registration statement.
"REGISTRABLE SECURITIES" means (i) the Primary Shares issued to the
Purchasers pursuant to the Purchase Agreement; (ii) the Penalty Warrant
Shares; (iii) the Placement Warrant Shares; and (iii) shares of Common
Stock or shares or units of other securities issued pursuant to any stock
split, stock dividend, reorganization, recapitalization, reclassification,
or other distribution or change in respect of the shares of the Common
Stock.
"REGISTRATION EXPENSES" means all expenses excluding Selling Expenses
incurred by the Company in effecting any Registration pursuant to this
Agreement and in complying with SECTION 2 and SECTION 3 of this Agreement,
including, without limitation, all registration, qualification and filing
fees, printing expenses, escrow fees, fees and disbursements of counsel for
the Company and of a single special counsel for the Holders (if different
from the Company's counsel), blue sky fees and expenses, and the expense of
any special audits incident to or required by any such Registration (but
excluding the compensation of regular employees of the Company which shall
be paid in any event by the Company).
"REGISTRATION STATEMENT" means a registration statement on a form
prescribed by the Commission for use in registering the offer and resale of
securities under the Securities Act.
"SECURITIES ACT" means the Securities Act of 1933, as amended, or any
similar federal statute and the rules and regulations of the Commission
thereunder, all as the same shall be in effect from time-to-time.
"SELLING EXPENSES" means all underwriting discounts, selling
commissions and stock transfer taxes applicable to the sale of Registrable
Securities pursuant to a Registration Statement prepared pursuant to this
Agreement.
"STOCK PURCHASE" has the meaning set forth in the recitals above.
2. COVENANT TO EFFECT REGISTRATION.
(a) FILING OF SHELF REGISTRATION STATEMENT. Subject to exceptions
and limitations described herein, the Company shall as soon as practicable
cause a Registration Statement to be filed with the Commission on Form S-3,
if available, or, if Form S-3 is not available for the Registration of the
Registrable Securities, on such form as may be prescribed by the
Commission, providing for the resale of the Primary Shares and the
Placement Warrant Shares, and, if the Penalty Warrant is issued, the
Penalty Warrant Shares. Such Registration Statement shall contain all
appropriate undertakings necessary to comply with Rule 415 under the
Securities Act pertaining to "shelf registration" or delayed offerings of
securities. The Company shall use its Best Efforts to cause the Commission
to declare such Registration Statement effective and to maintain the
effectiveness of such Registration Statement pursuant to SECTION 5 below.
In the event the Commission will not permit such Registration Statement to
become effective because of the inclusion therein of Placement Warrant
Shares and/or Penalty Warrant Shares that shall not have been issued at the
time effectiveness of the Registration Statement shall have been requested,
then the Company shall file an amendment to such Registration Statement
covering the resale of only the Primary Shares and shall use its Best
Efforts to cause the Commission to declare such amended Registration
Statement effective and to maintain the effectiveness thereof pursuant to
SECTION 5 below.
(b) REGISTRATION OF OTHER SECURITIES IN REGISTRATION. Any
Registration Statement filed pursuant to SECTION 2(A) may include
securities of the Company other than Registrable Securities. The
securities of the Company to be registered may include shares held by the
Holders, shares held by other shareholders, or shares to be issued by the
Company.
(c) BLUE SKY IN REGISTRATION. In the event of any Registration
pursuant to this SECTION 2, the Company shall use its Best Efforts to
register and/or qualify the securities covered by the Registration
Statement under such other securities or Blue Sky laws of such
jurisdictions as shall be reasonably requested by the Holders participating
in the Registration and as may be reasonably appropriate for the
distribution of such Registrable Securities, provided, however, that
notwithstanding anything in this Agreement to the contrary, in the event
any jurisdiction in which the securities shall be qualified imposes a
non-waivable requirement that expenses incurred in connection with the
qualification of the Registrable Securities be borne by selling
shareholders, the Holders shall pay their pro rata share of such expenses.
3. PIGGYBACK REGISTRATION. The provisions of this SECTION 3 shall
apply only with respect to Penalty Warrant Shares and Placement Warrant
Shares that are not Registered pursuant to SECTION 2 above.
(a) NOTICE OF PIGGYBACK REGISTRATION. Subject to the exceptions and
limitations contained herein, if, at any time or from time-to-time, the
Company shall Register any of its securities, either for its own account or
the account of a security holder or holders other than (i) a Registration
relating solely to employee benefit plans, or (ii) a Registration relating
solely to a transaction described in Rule 145 under the Securities Act, the
Company will: (i) promptly give to each Holder written notice thereof
(which notice shall include a list of jurisdictions in which the Company
intends to attempt to qualify such securities under applicable Blue Sky or
other state securities laws), and (ii) include in such Registration (and
any related registration and/or qualification under the applicable Blue Sky
or other state securities laws), and in any Underwritten Offering pursuant
to such Registration, all Registrable Securities specified in a written
request or requests delivered to the Company by any Holder within twenty
(20) days after receipt of such written notice from the Company by such
Holder.
(b) PIGGYBACK REGISTRATION IN UNDERWRITTEN OFFERINGS.
(i) NOTICE OF UNDERWRITTEN OFFERING. If the Registration of which
the Company gives notice is for an Underwritten Offering commenced at the
election of the Company (and not pursuant to the exercise of rights
pursuant to SECTION 2 hereof), the Company shall so advise the Holders as a
part of the written notice given pursuant to SECTION 3(A). In such event,
the right of any Holder to Registration shall be conditioned upon there
being an Underwritten Offering, and the inclusion of such Holder's
Registrable Securities in such Registration and Underwritten Offering to
the extent provided in and in compliance with this SECTION 3. All Holders
proposing to distribute their securities through such Underwritten Offering
shall (together with the Company and any other holders distributing
securities through such underwriting) enter into an underwriting agreement
containing the terms and conditions agreed to by the Company. The Holders
shall have no right to participate in the selection of underwriters for an
offering pursuant to this SECTION 3.2.
(ii) MARKETING LIMITATION IN PIGGYBACK REGISTRATION. In the event the
representative of the underwriters in any Underwritten Offering advises the
Company in writing that market factors (including, without limitation, the
aggregate number of shares of Common Stock requested to be Registered, the
general condition of the market, and the status of the persons proposing to
sell securities in the Underwritten Offering) require a limitation of the
shares to be offered and sold in the Underwritten Offering by persons other
than the Company, then the number of shares to be excluded from the
Underwritten Offering shall be determined in the following order: (i)
first, securities held by persons other than the Company who are not
contractually entitled to include securities in the Registration; and (ii)
second, securities that are contractually entitled to be included in the
Registration including securities Registrable pursuant to this SECTION 3.
Any partial reduction in the number of shares or securities included in
the Underwritten Offering affecting any of the two (2) classes set
forth in the immediately preceding sentence shall be allocated among
the persons in any such class pro rata, as nearly as practicable,
based on the number of Registrable Securities held by each person and
included in the Registration as a percentage of the aggregate Registrable
Securities held by all persons and included in the Registration.
(iii) WITHDRAWAL IN PIGGYBACK REGISTRATION. If any Holder who shall
exercise piggyback registration rights pursuant to this SECTION 3 shall
disapprove of the proposed terms of any Underwritten Offering, he may elect
to withdraw therefrom by written notice to the Company and the underwriters
delivered at least two (2) days prior to the effective date of the
Registration Statement. Any Registrable Securities or other securities
excluded or withdrawn from such Underwritten Offering shall be withdrawn
from such Registration.
(c) BLUE SKY IN PIGGYBACK REGISTRATION. In the event of any
Registration of Registrable Securities pursuant to SECTION 3, the Company
will use its best efforts to register and/or qualify the securities covered
by the Registration Statement under the securities or Blue Sky laws of such
jurisdictions as shall be reasonably appropriate for the distribution of
the Registrable Securities.
(d) RIGHT TO TERMINATE REGISTRATION. The Company shall have the
right to terminate or withdraw any Registration initiated by it that
triggers piggyback registration rights pursuant to this SECTION 3 prior to
the effectiveness of such Registration, whether or not any Holder has
elected to include securities in such registration.
4. EXPENSES OF REGISTRATION. All Registration Expenses incurred in
connection with any registration pursuant to SECTION 2 and SECTION 3 shall
be borne by the Company. All Selling Expenses shall be allocated among the
persons participating in any Registration based, in an Underwritten
Offering, on the relative gross proceeds allocable to each such person and,
in a non-Underwritten Offering, based on the Selling Expenses actually
incurred with respect to the sale of Registrable Securities of each person
whose shares were included in the Registration.
5. REGISTRATION PROCEDURES. The Company will keep each Holder whose
Registrable Securities are included in any Registration pursuant to this
Agreement advised in writing as to the initiation and completion of such
registration. The Company shall cause any registration statement filed
pursuant to SECTION 2(A) above to comply with the requirements of Rule 415
and shall use its best efforts to comply with the undertakings required
thereby to qualify the registration as a "shelf registration" pursuant to
Rule 415. At its expense, the Company shall: (a) use its best efforts to
keep such Registration Statement effective for so long as Holders who are
not affiliates of the Company whose Registrable Securities are included in
the Registration Statement are subject to the volume or manner of resale
restrictions set forth in Rule 144 under the Securities Act or until the
Holder or Holders have completed the distribution described in the
Registration Statement relating thereto, whichever first occurs; (b)
furnish such number of prospectuses (including preliminary prospectuses)
and other documents as a Holder from time-to-time reasonably may request;
(c) prepare and file with the Commission such amendments and
supplements to such Registration Statement and the prospectus used
in connection with such Registration Statement as may be necessary
to comply with the provisions of the Securities Act with respect
to the disposition of all Registrable Securities covered by such
Registration Statement; (d) notify each seller of Registrable Securities
covered by such Registration Statement at any time when a prospectus
relating thereto is required to be delivered under the Securities Act of
the happening of any event as a result of which the prospectus included in
such Registration Statement, as then in effect, includes an untrue
statement of a material fact or omits to state a material fact required to
be stated therein or necessary to make the statements therein not
misleading or incomplete in the light of the circumstances then existing,
and at the request of any such seller, prepare and furnish to such seller a
reasonable number of copies of a supplement to or an amendment of such
prospectus as may be necessary so that, as thereafter delivered to the
purchasers of such shares, such prospectus shall 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 or incomplete in the light of the ircumstances then existing;
provided, however, that if the Company is engaged in confidential
activities the disclosure of which the Company has determined in good
faith would be materially detrimental to the Company, the Company need not
prepare and deliver any such supplement or amendment for a period not
exceeding 60 days; (e) cause all such Registrable Securities registered
on such Registration Statement to be listed on each securities exchange or
automated quotation service (including the National Market of The Nasdaq
Stock Market) on which similar securities issued by the Company are then
listed; (f) provide a transfer agent and registrar for all Registrable
Securities registered pursuant to such Registration Statement and a
CUSIP number for all such Registrable Securities, in each case not later
than the effective date of such Registration; (g) file with the Commission,
in a timely manner, a Form 8-K (using Item 5 and not Item 9) or such other
appropriate form for each press release made by the Company in which
it discloses material information; and (h) otherwise use its Best Efforts
to comply with all applicable rules and regulations of the Commission, and
make available to its security holders, as soon as reasonably practicable,
an earnings statement covering the period of at least twelve months, but
not more than eighteen months, beginning with the first month after the
effective date of the Registration Statement, which earnings statement
shall satisfy the provisions of Section 11(a) of the Securities Act shall
be reasonably required.
6. INFORMATION FURNISHED BY HOLDER. It shall be a condition
precedent to the Company's obligations under this Agreement that each
Holder of Registrable Securities included in any Registration furnish to
the Company such information regarding such Holder and the distribution
proposed by such Holder or Holders as the Company may reasonably request in
writing and as shall be reasonably required.
7. INDEMNIFICATION.
(a) COMPANY'S INDEMNIFICATION OF HOLDERS. The Company shall
indemnify and hold harmless each Holder, each of its agents, legal counsel
and accountants and each (i) person controlling such Holder within the
meaning of Section 15 of the Securities Act ("Controlling Person"); and
(ii) each underwriter and each Controlling Person of such underwriter,
with respect to which Registration, qualification or compliance of
Registrable Securities has been effected pursuant to this Agreement
against all claims, losses, damages, expenses or liabilities (or actions
in respect thereof) to the extent such claims, losses, damages,
expenses or liabilities (or actions, proceedings or settlements in
respect thereto) arise out of or are based upon any untrue statement
(or alleged untrue statement) of a material fact contained in any
prospectus or other document prepared by the Company (including any related
Registration Statement notification or the like) incident to any such
Registration, qualification or compliance, or are based on any omission (or
alleged omission) to state therein a material fact required to be stated
therein or necessary to make the statements therein not misleading, or any
violation by the Company of the Securities Act or any rule or regulation
promulgated under the Securities Act applicable to the Company and
relating to action or inaction required of the Company in connection with
any such Registration, qualification or compliance; and the Company will
reimburse each such indemnified party and each Controlling Person, for any
legal and any other expenses reasonably incurred in connection with
investigating, defending or settling any such claim, loss, damage,
liability or action; provided, however, that the indemnity contained in
this Section 7(a) shall not apply to amounts paid in settlement of any
such claim, loss, damage, liability or action if settlement is effected
without the consent of the Company; and provided, further, that the Company
will not be liable in any such case to the extent that any such claim,
loss, damage, liability or expense arises out of or is based upon any
untrue statement or omission based upon written information furnished to
the Company by such Holder, Controlling Person of such Holder and stated
to be specifically for use therein, in which case such Holder or
Controlling Person of such Holder shall likewise indemnify the Company.
(b) INDEMNIFICATION PROCEDURE. Promptly after receipt by an
indemnified party under this SECTION 7 of notice of the commencement of any
action, such indemnified party will, if a claim in respect thereof is to be
made against an indemnifying party under this SECTION 7, notify the
indemnifying party in writing of the commencement thereof and generally
summarize such action. The indemnifying party shall have the right to
participate in and to assume the defense of such claim; provided, however,
that the indemnifying party shall be entitled to select counsel for the
defense of such claim with the approval of any parties entitled to
indemnification, which approval shall not be unreasonably withheld;
provided further, however, that if either party reasonably determines that
there may be a conflict between the position of the Company and the Holders
in conducting the defense of such action, suit or proceeding by reason of
recognized claims for indemnity under this SECTION 7, then counsel for such
party shall be entitled to conduct the defense to the extent reasonably
determined by such counsel to be necessary to protect the interest of such
party. The failure to notify an indemnifying party promptly of the
commencement of any such action, if prejudicial to the ability of the
indemnifying party to defend such action, shall relieve such indemnifying
party, to the extent so prejudiced, of any liability to the indemnified
party under this SECTION 7, but the omission so to notify the indemnifying
party will not relieve such party of any liability that such party may have
to any indemnified party otherwise other than under this SECTION 7.
8. MARKET STAND-OFF. In consideration of the granting to the
Purchaser of the registration rights pursuant to this Agreement,
each of them agrees that, for so long as such Holder holds Common
Stock, except as permitted by SECTION 2 and SECTION 3 above, such
Holder will not sell, transfer or otherwise dispose of, including,
without limitation, through the use of any put or call option,
short sale or other derivative arrangement, shares of Common Stock
in the ten days prior to the effectiveness of any Registration
Statement (other than a registration statement on Form S-8 or
Form S-4, or any successor form) with respect to shares of Common
Stock pursuant to which such Common Stock will be offered for sale to the
public (except pursuant to the Registration Statements described in SECTION
2 or SECTION 3 above), and for up to one hundred eighty (180) days
following the effectiveness of such Registration Statement, provided
that the underwriters of any such offering shall reasonably request that
the Stockholders be bound by such restrictions.
9. MISCELLANEOUS.
9.1 ASSIGNMENT. Except as otherwise provided in this Agreement, the
terms and conditions of this Agreement shall inure to the benefit of and be
binding upon the respective successors and assigns of the parties to this
Agreement.
9.2 THIRD PARTIES. Nothing in this Agreement, express or implied, is
intended to confer upon any party, other than the parties to this
Agreement, and their respective successors and assigns, any rights,
remedies, obligations or liabilities under or by reason of this Agreement,
except as expressly provided in this Agreement.
9.3 GOVERNING LAW. This Agreement shall be governed by and construed
under the laws of the State of New York in the United States of America
without giving effect to the conflicts of laws principles thereof.
9.4 COUNTERPARTS. This Agreement may be executed in counterparts,
each of which shall be deemed an original, but all of which together shall
constitute one and the same instrument.
9.5 NOTICES. All notices, requests, demands, claims, and other
communications hereunder shall be in writing and shall be given by
registered or certified mail, return receipt requested, postage prepaid, by
telecopier or by national overnight delivery service, and addressed to the
intended recipient as set forth below
IF TO THE COMPANY:
UNIFAB International, Inc.
5007 Port Road
New Iberia, Lousiana 70562
Attention: Chief Executive Officer
Facsimile: (337) 367-8291
IF TO PURCHASER:
To the Purchasers listed on Schedule A,
at the addresses listed on Schedule A.
Any notice given in the manner aforesaid shall be deemed to have been
served, and shall be effective for all purposes hereof if sent by
registered or certified mail, on the earlier of the second day following
the day on which it is posted or the date of its receipt by the party to be
notified, if sent by telecopier, the day actually received as evidenced by
a written receipt of transmission and if sent by overnight delivery
service, the day after such notice has been delivered by the party to said
service. Any Party may change the address to which notices, requests,
demands, claims, and other communications hereunder are to be delivered by
giving the other Party notice in the manner herein set forth.
9.6 SEVERABILITY. If one or more provisions of this Agreement are
held to be unenforceable under applicable law, portions of such provisions,
or such provisions in their entirety, to the extent necessary, shall be
severed from this Agreement, and the balance of this Agreement shall be
enforceable in accordance with its terms.
9.7 AMENDMENT AND WAIVER. Any provision of this Agreement may be
amended or waived with the written consent of the Company and the Holders
of at least a majority of the outstanding shares of the Registrable
Securities, so long as the effect is to treat all Holders equally. Any
amendment or waiver of this Agreement shall require the written consent of
any Holder who is disproportionately adversely affected by such amendment
or waiver. Any amendment or waiver effected in accordance with this
paragraph shall be binding upon each Holder of Registrable Securities and
the Company. In addition, the Company may waive performance of any
obligation owing to it, as to some or all of the Holders of Registrable
Securities, or agree to accept alternatives to such performance, without
obtaining the consent of any Holder of Registrable Securities. In the
event that an underwriting agreement is entered into between the Company
and any Holder, and such underwriting agreement contains terms differing
from this Agreement, as to any such Holder the terms of such underwriting
agreement shall govern.
9.8 EFFECT OF AMENDMENT OR WAIVER. The Purchasers and their
successors and assigns acknowledge that by the operation of SECTION 9.7 of
this Agreement the holders of a majority of the outstanding Registrable
Securities, acting in conjunction with the Company, will have the right and
power to diminish or eliminate any or all rights or increase any or all
obligations pursuant to this Agreement.
9.9 RIGHTS OF HOLDERS. Each holder of Registrable Securities shall
have the absolute right to exercise or refrain from exercising any right or
rights that such holder may have by reason of this Agreement, including,
without limitation, the right to consent to the waiver or modification of
any obligation under this Agreement, and such holder shall not incur any
liability to any other holder of any securities of the Company as a result
of exercising or refraining from exercising any such right or rights.
9.10 DELAYS OR OMISSIONS. No delay or omission to exercise any right,
power or remedy accruing to any party to this Agreement, upon any breach or
default of the other party, shall impair any such right, power or remedy of
such non-breaching party nor shall it be construed to be a waiver of any
such breach or default, or an acquiescence therein, or of or in any
similar breach or default thereafter occurring; nor shall any waiver of any
single breach or default be deemed a waiver of any other breach or default
theretofore or thereafter occurring. Any waiver, permit, consent or
approval of any kind or character on the part of any party of any breach or
default under this Agreement, or any waiver on the part of any party of any
provisions or conditions of this Agreement, must be made in writing and
shall be effective only to the extent specifically set forth in such
writing. All remedies, either under this Agreement, or by law or otherwise
afforded to any holder, shall be cumulative and not alternative.
9.11 FAILURE TO EFFECT REGISTRATION. If the Company shall fail to
file the Registration Statement referred to in SECTION 2(A) hereof within
thirty (30) days after the issuance of the Primary Shares, then the Company
will issue to the Purchasers warrants to purchase Common Stock aggregating
ten percent (10 %) of the number of Primary Shares issued in the Offering
(the "Penalty Warrants"). The Penalty Warrants, if and when issued, shall
be in substantially the form attached hereto as EXHIBIT 1. The Company
shall issue and deliver to the Purchasers any Penalty Warrants on the first
day (or first business day thereafter) after the end of the thirty (30) day
period described above.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the day and year first above written.
COMPANY:
UNIFAB INTERNATIONAL, INC.
By: /s/ Dailey J. Berard
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Title: Chief Executive Officer
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PURCHASER:
____________________________________
[Name of Purchaser]
By:
-------------------------------
Title:
----------------------------
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the day and year first above written.
COMPANY:
UNIFAB INTERNATIONAL, INC.
By:
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Title:
----------------------------
PURCHASER:
/s/ Theodore W. Price
----------------------------------
[Name of Purchaser]
By: Theodore W. Price
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Title: Managing Director -
----------------------------
Chief Investment Officer
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the day and year first above written.
COMPANY:
UNIFAB INTERNATIONAL, INC.
By:
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Title:
----------------------------
PURCHASER:
Columbus Capital Partners, L.P.
----------------------------------
[Name of Purchaser]
Columbus Capital Management, LLC
General Partner
By: /s/ Matthew D. Ockner
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Title: Managing Member
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the day and year first above written.
COMPANY:
UNIFAB INTERNATIONAL, INC.
By:
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Title:
----------------------------
PURCHASER:
Franklin Street Trust
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[Name of Purchaser]
By: /s/ Carol E. Manzon
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Title: Secretary/Treasurer
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the day and year first above written.
COMPANY:
UNIFAB INTERNATIONAL, INC.
By:
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Title:
----------------------------
PURCHASER:
Lone Wolf Trading, LLC
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[Name of Purchaser]
By: /s/ Richard C. McKenzie, Jr.
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(Maria Prawdzik as Attorney in Fact)
Title: Sole Member
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the day and year first above written.
COMPANY:
UNIFAB INTERNATIONAL, INC.
By:
-------------------------------
Title:
----------------------------
PURCHASER:
Jupiter Fund/Beacon Management
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[Name of Purchaser]
By: /s/ Brian M. Sites
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Title: Partner
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the day and year first above written.
COMPANY:
UNIFAB INTERNATIONAL, INC.
By:
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Title:
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PURCHASER:
Trusco Capital Management
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[Name of Purchaser]
By: /s/ Jason Ling
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Title: Portfolio Assistant
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the day and year first above written.
COMPANY:
UNIFAB INTERNATIONAL, INC.
By:
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Title:
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PURCHASER:
Dynamis Fund, LP
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[Name of Purchaser]
By: Frederic S. Bocock
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Title: Managing Member
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Dynamis Advisers, LLC/General
Partner
Schedule A
List of Purchasers
Mentor Investment Group
Franklin Street Trust Co.
Beacon Management
SSCM, LLC
Lone Wolfe Trading LLC
Trusco Capital Management
Columbus Capital Partners, L.P.
EXHIBIT 1
THIS WARRANT (THIS "WARRANT") HAS NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR APPLICABLE
STATE SECURITIES LAWS. THIS WARRANT MAY NOT BE SOLD, OFFERED FOR SALE,
PLEDGED OR HYPOTHECATED IN THE ABSENCE OF AN EFFECTIVE REGISTRATION
STATEMENT AS TO THIS WARRANT UNDER SAID ACT AND APPLICABLE STATE SECURITIES
LAWS OR AN OPINION OF COUNSEL REASONABLY SATISFACTORY TO UNIFAB
INTERNATIONAL, INC. (THE "COMPANY") THAT SUCH REGISTRATION IS NOT REQUIRED.
Warrant Certificate No. _________
____________ ___, 2000
WARRANT TO PURCHASE SHARES OF COMMON STOCK
OF
UNIFAB INTERNATIONAL, INC.
This certifies that [ ], or its successors or assigns (the
"HOLDER"), is entitled, subject to the terms set forth below, at any time
during the Exercise Period (defined in Section 2 hereof) to purchase from
UNIFAB INTERNATIONAL, INC., a Louisiana corporation, up to _______________
(____________) fully paid and nonassessable shares (the "WARRANT SHARES")
of the Company's Common Stock, par value $.01 per share (the "COMMON
STOCK"), at the purchase price per Warrant Share of the greater of book or
market value per share of the Common Stock on the date hereof, as
reasonably determined by the Company (the "PURCHASE PRICE"). The number of
Warrant Shares issuable upon exercise of this Warrant and the Purchase
Price shall be subject to adjustment from time to time as provided in
Section 5 hereto.
1. THIS WARRANT. This Warrant is issued to the Holder pursuant to
Section 9.11 of that certain Registration Rights Agreement, dated as of
September 18, 2000, by and among the persons listed on the signature page
thereto (the "REGISTRATION RIGHTS AGREEMENT"). This Warrant does not
entitle the Holder to any rights as a stockholder of the Company, except as
set forth herein.
2. EXERCISE. During the period beginning on the date hereof and
ending on the second (2nd) anniversary hereof (the "EXERCISE PERIOD"), this
Warrant may be exercised at the Purchase Price. The Warrant may be
exercised at any time on any business day for all or part of the Warrant
Shares issuable hereunder by surrendering this Warrant at the principal
office of the Company at 5007 Port Road, New Iberia, Louisiana 70562 (or at
such other office of the Company in the United States as the Company may
designate from time to time by notice in writing to the Holder), with
the subscription form attached hereto fully executed, together with
payment in cash or immediately available funds in an amount equal to the
Purchase Price multiplied by the number of Warrant Shares as to which the
Warrant is being exercised.
3. PARTIAL EXERCISE. This Warrant may, in accordance with the
provisions of this Section 3, be exercised for less than the full number of
Warrant Shares. Upon any partial exercise, this Warrant shall be
surrendered and a new Warrant of the same tenor and for the purchase of
that number of Warrant Shares not purchased upon such partial exercise
shall be issued by the Company to the Holder. A Warrant shall be deemed to
have been exercised immediately prior to the close of business on the date
of its surrender for exercise as provided above, and the person entitled to
receive the Warrant Shares issuable upon exercise shall be treated for all
purposes as the holder of such shares of record as of the close of business
on such date. As soon as practicable on or after such date, and in any
event within five (5) business days, the Company shall issue and deliver to
the person or persons entitled to receive the Warrant Shares a certificate
or certificates for the full number of Warrant Shares issuable upon such
exercise.
4. NET ISSUE EXERCISE. Notwithstanding any provisions herein to the
contrary, if the Fair Market Value of one share of Common Stock is greater
than the Purchase Price for one share of Common Stock (at the date of
calculation, as set forth below), in lieu of exercising this Warrant for
cash, the Holder may elect to receive shares of Common Stock equal to the
value (as determined below) of this Warrant (or the portion thereof being
canceled) by surrender of this Warrant at the principal office of the
Company, together with the properly endorsed Warrant Certificate,
substantially in the form as attached hereto, in which event the Company
shall issue to the Holder that number of shares of Common Stock computed
using the following formula:
WS = WCS (FMV-PP)
------------
FMV
WHERE:
WS equals the number of Warrant Shares to be issued to the Holder
WCS equals the number of shares of Common Stock purchasable under
the Warrant or, if only a portion of the Warrant is being
exercised, the portion of the Warrant being canceled (at the
date of such calculation)
FMV equals the Fair Market Value of one share of Common Stock (at
the date of such calculation)
PP equals the per share Purchase Price (as adjusted to the date
of such calculation) of the Warrant
As used in this Section 4, the term "FAIR MARKET VALUE" of
each Share as of any date shall be the best bid price posted
in respect of the Common Stock in the Nasdaq Stock Market's
automated dealer quotation system at the close of trading on the
day prior to such exercise, or, if the Common Stock shall not then be
so quoted, Fair Market Value shall be determined as follows: (A) if
the parties hereto can agree on the Fair Market Value, such agreed
upon value shall constitute the Fair Market Value; (B) if the parties
cannot reach an agreement as to the Fair Market Value within five (5)
business days from the onset of negotiations, then such parties shall
jointly appoint an appraiser to determine the Fair Market Value; (C)
if the parties cannot agree upon the selection of an appraiser within
five (5) business days after such five (5) day period, then each party
shall deliver to the other a list of three (3) appraisers on or before
the third (3rd) business day immediately following the expiration of
said five (5) day period, each party shall select one appraiser from
the other party's list and notify such other party of its selection on
or before the fifth (5th) business day immediately following the
expiration of the three (3) day period; (D) if either party does not
deliver to the other party a list of appraisers within the three-day
period or deliver its selection of the appraiser from the other
party's list within the five (5) day period, then the first appraiser
listed on the other party's list shall be deemed to have been jointly
selected to determine the Fair Market Value; (E) if both parties
timely select an appraiser from the other party's list, then the two
appraisers so selected shall jointly select a third appraiser, which
third appraiser shall independently calculate the Fair Market Value on
or before the forty-fifth (45th) day immediately following the date on
which it was selected as an appraiser. Any determination of the Fair
Market Value made in accordance with the terms hereinabove set forth
shall be final and binding on the parties hereto.
5. ADJUSTMENTS.
5.1 ADJUSTMENTS TO WARRANT RIGHTS. The number of Warrant Shares
for which Warrants are exercisable, and the Purchase Price of such
shares shall be subject to adjustment from time to time as set forth
in this Section 5.
5.2 STOCK DIVIDENDS, SUBDIVISIONS AND COMBINATIONS. If at any
time the Company shall:
(a) take a record of the holders of its Common Stock for the
purpose of entitling them to receive a dividend payable in, or
other distribution of, additional shares of Common Stock,
(b) subdivide its outstanding shares of Common Stock into a
larger number of shares of Common Stock, or
(c) combine its outstanding shares of Common Stock into a smaller
number of shares of Common Stock,
then (i) the number of Warrant Shares for which a Warrant is
exercisable immediately prior to the occurrence of any such event
shall be adjusted to equal the number of shares of Common Stock
which a record holder of the same number of shares of Common Stock
for which a Warrant is exercisable immediately prior to the occurrence
of such event would own or be entitled to receive after the
happening of such event and (ii) the Purchase Price immediately prior
to the occurrence of such event shall be adjusted to equal the product of
the Purchase Price multiplied by a fraction, the numerator of which shall
be the number of Warrant Shares for which a Warrant is exercisable
immediately prior to the adjustment and the denominator of which shall be
the number of Warrant Shares for which a Warrant is exercisable immediately
after such adjustment.
5.3 OTHER DIVIDENDS AND DISTRIBUTIONS. If the Company shall make or
fix a record date for the holders of Common Stock entitled to receive a
dividend or other distribution payable in securities of the Company other
than shares of Common Stock, then lawful and adequate provision shall be
made so that Holder shall be entitled to receive upon exercise of the
Warrants, for the aggregate Purchase Price in effect prior thereto, in
addition to the number of Warrant Shares immediately theretofore issuable
upon exercise of the Warrants, the kind and number of securities of the
Company which Holder would have owned and been entitled to receive had the
Warrants been exercised immediately prior to that date (pro rated in the
case of any partial exercise).
5.4 RECLASSIFICATION, EXCHANGE AND SUBSTITUTION. If the Common Stock
is changed into the same or a different number of shares of any class or
classes of stock, whether by reclassification, exchange, substitution or
otherwise (other than a subdivision or combination of shares, stock
dividend or a reorganization, recapitalization, merger, consolidation or
sale of assets, each as provided for elsewhere in this Section 5) then the
Holder of the Warrants shall be entitled to receive upon exercise of the
Warrants, in lieu of the Warrant Shares immediately theretofore issuable
upon exercise of the Warrants, for the aggregate Purchase Price in effect
prior thereto, the kind and amount of stock and other securities and
property receivable upon such reclassification, exchange, substitution or
other change, which Holder would have been entitled to receive had the
Warrants been exercised immediately prior to such reclassification,
exchange, substitution or change (pro rated in the case of any partial
exercise).
5.5 LIQUIDATION. If the Company shall, at any time, prior to the
expiration of the Warrants, dissolve, liquidate or wind up its affairs,
Holder shall have the right, but not the obligation, to exercise the
Warrants. Upon such exercise, Holder shall have the right to receive, in
lieu of the shares of Common Stock that Holder otherwise would have been
entitled to receive upon such exercise, the same kind and amount of assets
as would have been issued, distributed or paid to Holder upon any such
dissolution, liquidation or winding up with respect to such shares of
Common Stock had Holder been the holder of record of such shares of Common
Stock receivable upon exercise of the Warrants on the date for determining
those entitled to receive any such distribution. If any such dissolution,
liquidation or winding up results in any cash distribution to Holder in
excess of the aggregate Purchase Price, Holder may, at Holder's option,
exercise the Warrants without making payment of the applicable aggregate
Purchase Price and, in such case, the Company shall, upon distribution to
Holder, consider the applicable aggregate Purchase Price to have been paid
in full, and in making settlement to Holder shall deduct an amount equal to
the applicable aggregate Purchase Price from the amount payable to Holder.
5.6 REORGANIZATIONS, MERGERS, CONSOLIDATIONS OR SALES OF ASSETS.
If any of the following transactions (each, a "SPECIAL
TRANSACTION") shall become effective: (a) a capital reorganization
or recapitalization (other than a dividend or other
distribution, subdivision, combination, reclassification, substitution
or exchange of shares provided for elsewhere in this
Section 5), (b) a consolidation or merger of the Company with and into
another entity (where the Company is not the surviving corporation or
where there is a change in, or distribution with respect to, the Common
Stock), or (c) a sale or conveyance of all or substantially all of the
Company's assets, then, as a condition of the Special Transaction, lawful
and adequate provision shall be made so that Holder shall thereafter have
the right to purchase and receive upon exercise of the Warrants, in lieu of
the Warrant Shares immediately theretofore issuable upon exercise of the
Warrants, for the aggregate Purchase Price in effect immediately prior to
such consummation, such shares of stock, other securities, cash or other
assets ("OTHER PROPERTY") as may be issued or paid pursuant to the terms of
such Special Transaction to the holders of shares of Common Stock for which
such Warrants could have been exercised immediately prior to such Special
Transaction (pro rated in the case of any partial exercise). In connection
with any Special Transaction, appropriate provision shall be made with
respect to the rights and interests of Holder to the end that the
provisions of the Warrants (including without limitation provisions for
adjustment of the Purchase Price and the number of Warrant Shares issuable
upon the exercise of the Warrants), shall thereafter be applicable, as
nearly as may be practicable, to any Other Property thereafter deliverable
upon the exercise of the Warrants. The Company shall not effect any
Special Transaction unless prior to, or simultaneously with, the closing,
the successor entity (if other than the Company), if any, resulting from
such consolidation or merger or the entity acquiring such assets shall
assume by a written instrument executed and mailed by certified mail or
delivered to Holder at the address of Holder appearing on the books of the
Company, the obligation of the Company or such successor corporation to
deliver to Holder such Other Property, as in accordance with the foregoing
provisions, which Holder shall have the right to purchase.
5.7 NOTICE. Whenever the Warrants or the number of Warrant Shares
issuable hereunder is to be adjusted as provided herein or a dividend or
distribution (in cash, stock or otherwise and including, without
limitation, any distributions under Section 5.5) is to be declared by the
Company, or a definitive agreement with respect to a Special Transaction
has been entered into, the Company shall forthwith cause to be sent to the
Holder at the last address of the Holder shown on the books of the Company,
by first-class mail, postage prepaid, at least 5 business days prior to the
record date specified in Section 5.7(a)(i) below or at least 10 business
days before the date specified in Section 5.7(b) and Section 5.7(a)(ii)
below, a notice stating in reasonable detail the relevant facts and any
resulting adjustments and the calculation thereof, if applicable, and
stating (if applicable):
(a) the date to be used to determine (i) which holders of Common
Stock will be entitled to receive notice of such dividend,
distribution, subdivision or combination (the "RECORD DATE"), and (ii)
the date as of which such dividend, distribution, subdivision or
combination shall be made; or, if a record is not to be taken, the
date as of which the holders of Common Stock of record to be entitled
to such dividend, distribution, subdivision or combination are to be
determined (provided, that in the event the Company institutes a
policy of declaring cash dividends on a periodic basis, the Company
need only provide the relevant information called for in this Section
5.7(a) with respect to the first cash dividend payment to be made
pursuant to such policy and thereafter provide only notice of any
changes in the amount or the frequency of any subsequent dividend
payments), or
(b) the date on which a Special Transaction is expected to become
effective, and the date as of which it is expected that holders of
Common Stock of record shall be entitled to exchange their shares of
Common Stock for securities or other property deliverable upon
consummation of the Special Transaction (the "EXCHANGE DATE").
5.8 FRACTIONAL INTERESTS. The Company shall not be required to issue
fractions of shares of Common Stock upon the exercise of a Warrant. If any
fraction of a share of Common Stock would be issuable upon the exercise of
a Warrant, the Company shall, upon such issuance, purchase such fraction
for an amount in cash equal to the current value of such fraction, computed
on the basis of the Fair Market Value (as defined in Section 4) on the last
business day prior to the date of exercise.
6. PAYMENT OF TAXES. All Warrant Shares shall be validly issued,
fully paid and nonassessable and free of claims of preemptive rights, and
the Company shall pay all issuance taxes and similar governmental charges
that may be imposed in respect of the issue or delivery thereof, but in no
event shall the Company pay a tax on or measured by the net income or gain
attributed to such exercise. Notwithstanding the foregoing, the Company
shall not be required to pay any tax which may be payable in respect of any
transfer involved in the issuance and delivery of any certificate in a name
other than that of the Holder, and the Company shall not be required to
issue or deliver any such certificate unless and until the Holder shall
have paid to the Company the amount of such tax or shall have established
to the satisfaction of the Company that such tax has been paid.
7. TRANSFER AND EXCHANGE. This Warrant shall be transferable in
whole or in part, except as otherwise provided herein and except that the
Holder hereof represents that it is acquiring this Warrant for its own
account and for the purpose of investment and not with a view to any
distribution or resale thereof within the meaning of the Securities Act.
The Holder further agrees that it will not sell, assign or transfer any of
this Warrant unless this Warrant shall have been registered for sale under
the Securities Act or until the Company shall have received from counsel
for the Holder an opinion to the effect that the proposed sale or other
transfer of this Warrant by the Holder may be effected without such
registration. The Holder acknowledges that, in taking this unregistered
Warrant, it must continue to bear the economic risk of its investment for
an indefinite period of time because of the fact that such Warrant has
not been registered under the Securities Act and further realizes that
such Warrant cannot be sold unless it is subsequently registered under the
Securities Act or an exception from such registration is available. The
Holder also acknowledges that appropriate legends reflecting the status of
this Warrant under the Securities Act may be placed on the face of this
Warrant certificate at the time of their transfer and delivery to the
Holder hereof. The transfer of Warrant Shares issuable upon exercise of
this Warrant is governed by Section 10 hereof.
8. LOSS OR MUTILATION. On receipt of evidence reasonably
satisfactory to the Company of the loss, theft, destruction or mutilation
of this Warrant or a replacement hereof and, in the case of any such loss,
theft or destruction, on delivery of an indemnity agreement or security
reasonably satisfactory in form and amount to the Company or, in the case
of any such mutilation, on surrender and cancellation of this Warrant or a
replacement, the Company at its expense will execute and deliver in lieu
thereof, a new warrant of like tenor.
9. RESERVATION OF STOCK. The Company will at all times reserve and
keep available, solely for issuance and delivery on the exercise of this
Warrant, all Warrant Shares from time to time issuable upon the exercise of
this Warrant and all shares of the Common Stock from time to time issuable
upon the conversion of the Warrant Shares issuable upon the exercise of
this Warrant.
10. NEGOTIABILITY. This Warrant is issued upon the following terms,
to all of which the Holder, by the taking hereof, consents and agrees:
(a) title to this Warrant may be transferred by endorsement (by
the Holder executing the form of assignment at the end hereof) and
delivery in the same manner as in the case of a negotiable instrument
transferable by endorsement and delivery and any person in possession
of this Warrant properly endorsed is authorized to represent himself
as absolute owner hereof and is empowered to transfer absolute title
hereto by endorsement and delivery hereof to a bona fide purchaser
hereof for value; each prior taker or owner waives and renounces all
of his equities or right in this Warrant in favor of each such bona
fide purchaser, and each such bona fide purchaser shall acquire
absolute title hereto and to all rights represented hereby;
(b) until this Warrant is transferred on the books of the
Company, the Company may treat the registered Holder hereof as the
absolute owner hereof for all purposes, notwithstanding any notice to
the contrary; and
(c) the Holder, by its acceptance hereof, represents that it is
acquiring this Warrant for investment purposes only and that it does
not have any present intention to resell this Warrant or to sell or
distribute any Warrant Shares for which this Warrant may be exercised.
11. NOTICES. All notices and other communications from the Company
to the Holder shall be mailed by first class registered or certified mail,
postage prepaid, or sent by express overnight courier service or electronic
facsimile transmission (with a copy by mail) at the address furnished to
the Company in writing by the last Holder of this Warrant who shall have
furnished an address to the Company in writing.
12. CHANGE, WAIVER. This Warrant and any term hereof may be changed,
waived, discharged or terminated only by an instrument in writing signed by
the party against which enforcement of such change, waiver, discharge or
termination is sought.
13. HEADINGS. The headings in this Warrant are for purposes of
convenience of reference only and shall not be deemed to constitute a part
hereof.
14. LAW GOVERNING. This Warrant shall be construed and enforced in
accordance with and governed by the internal laws of New York, without
reference to the conflicts of laws provisions in effect therein.
IN WITNESS WHEREOF, the Company has executed this Warrant under seal
as of the date first written above.
ATTEST: UNIFAB INTERNATIONAL, INC.
By: _________________________ By:______________________
Name: Name:
Title: Title:
FORM OF EXERCISE
(TO BE SIGNED ONLY ON EXERCISE OF WARRANT)
TO: UNIFAB INTERNATIONAL, INC.
The undersigned, the holder of the Warrant attached hereto,
hereby irrevocably elects to exercise this Warrant for, and to purchase
thereunder, ___________ shares of the Common Stock of UNIFAB INTERNATIONAL,
INC., and herewith makes payment of $______________ therefor, and requests
that the certificates for such shares be issued in the name of, and
delivered to __________________________ whose address is
____________________________________.
Dated: ________________
___________________________________________________
(SIGNATURE MUST CONFORM TO NAME OF HOLDER AS SPECIFIED
ON THE FACE OF THE WARRANT)
___________________________________________________
(ADDRESS)
FORM OF ASSIGNMENT
(TO BE SIGNED ONLY ON TRANSFER OF WARRANT)
For value received, the undersigned hereby sells, assigns, and
transfers unto ________________________________ the right represented by
the Warrant attached hereto to purchase ___________ shares of Common Stock
of UNIFAB INTERNATIONAL, INC. to which the within Warrant relates, and
appoints ____________________________________ Attorney-In-Fact to transfer
such right on the books of UNIFAB INTERNATIONAL, INC. with full power of
substitution in the premises.
Dated: ________________
___________________________________________________
(SIGNATURE MUST CONFORM TO NAME OF HOLDER AS SPECIFIED
ON THE FACE OF THE WARRANT)
___________________________________________________
(ADDRESS)
Signed in the presence of:
_________________________________