AMENDED AND RESTATED REGISTRATION RIGHTS AGREEMENT
AMENDED AND RESTATED REGISTRATION RIGHTS AGREEMENT (this "Agreement"),
dated as of April 15, 2004, by and between OMNI ENERGY SERVICES CORP., a
Louisiana corporation (the "Company"), and each of the entities whose names
appear on the signature pages hereof. Such entities are each referred to herein
as an "Investor" and, collectively, as the "Investors".
Pursuant to a Securities Purchase Agreement, dated as of February 12,
2004 (the "First Purchase Agreement"), the Company issued and sold to the
Investors named therein 6.5% Convertible Debentures (the "First Debentures") and
Warrants (the "First Warrants").
The Company has agreed, on the terms and subject to the conditions set
forth in the Securities Purchase Agreement, dated as of the date hereof, 2004
(the "Second Purchase Agreement"), to issue and sell to the Investors named
therein 6.5% Convertible Debentures (the "Second Debentures") and Warrants (the
"Second Warrants").
The First and Second Debentures (the "Debentures") are convertible into
shares (the "Conversion Shares") of the Company's common stock, par value $0.01
per share (the "Common Stock"). The First and Second Warrants (the "Warrants")
are exercisable into shares of Common Stock (the "Warrant Shares") in accordance
with their terms.
In order to induce each Investor to enter into the First Purchase
Agreement, the Company and each Investor entered into a Registration Rights
Agreement, dated as of February 12, 2004 (as amended, the "Existing Registration
Rights Agreement"), pursuant to which the Company agreed to provide certain
registration rights under the Securities Act of 1933, as amended (the
"Securities Act"), and under applicable state securities laws.
In order to induce each Investor to enter into the Second Purchase
Agreement, the Company and each Investor are amending and restating the Existing
Registration Rights Agreement in its entirety.
Capitalized terms used herein and not otherwise defined shall have the
respective meanings set forth in the Second Purchase Agreement.
In consideration of each Investor entering into the Second Purchase
Agreement, and other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties agree that the
Existing Registration Rights Agreement is amended and restated in its entirety
as follows:
1. DEFINITIONS.
For purposes of this Agreement, the following terms shall have the
meanings specified:
(a) "Debenture Shares" means the Conversion Shares, the Interest
Payment Shares (as defined in the Debentures) and the Put Payment
Shares (as defined in the Debentures);
(b) "Effective Date" means the date on which the Registration
Statement is declared effective by the Securities and Exchange
Commission (the "Commission");
(c) "Filing Deadline" means the fifteenth (15th) calendar day
following the Closing Date;
(d) "Holder" means any person owning or having the right to
acquire, through conversion of the Debentures or exercise of the
Warrants or otherwise, Registrable Securities, including initially each
Investor and thereafter any permitted assignee thereof;
(e) "Registrable Securities" means the Debenture Shares and the
Warrant Shares and any other shares of Common Stock issuable pursuant
to the terms of the Debentures or the Warrants, and any shares of
capital stock issued or issuable from time to time (with any
adjustments) in replacement of, in exchange for or otherwise in respect
of the Debenture Shares or the Warrant Shares;
(f) "Registration Deadline" means the eightieth (80th) calendar
day following the Closing Date;
(g) "Registration Period" has the meaning set forth in paragraph
2(b) below; and
(h) "Registration Statement" means the Registration Statement to
be filed hereunder relating to resales of the Registrable Securities
issued or issuable under the Debentures or the Warrants.
2. REGISTRATION.
(a) Registration Statement. On or before the Filing
Deadline, the Company shall prepare and file with the Commission a Registration
Statement on Form S-3 as a "shelf" registration statement under Rule 415 under
the Securities Act ("Rule 415") covering the resale of a number of shares of
Registrable Securities equal to the one hundred and fifty percent (150%) of the
number of shares of Common Stock issuable on the Closing Date pursuant to the
conversion of the Debentures and the exercise of the Warrants (such number to be
determined using the Conversion Price (as defined in the First Debentures or the
Second Debentures, as the case may be) or Exercise Price (as defined in the
First Warrants or the Second Warrants, as the case may be), as the case may be,
in effect on such dates and without regard to any restriction on the ability of
any Holder to convert such Holder's Debentures or exercise such Holder's Warrant
as of such date). The Registration
Statement shall state, to the extent permitted by Rule 416 under the Securities
Act, that it also covers such indeterminate number of additional shares of
Common Stock as may become issuable upon the conversion of the Debentures and
exercise of the Warrants in order to prevent dilution resulting from stock
splits, stock dividends or similar events.
(b) Effectiveness. The Company shall use its best efforts
to cause the Registration Statement to become effective prior to the
Registration Deadline. The Company shall respond promptly to any and all
comments made by the staff of the Commission on the Registration Statement, and
shall submit to the Commission, within two (2) Business Days after the Company
learns that no review of the Registration Statement will be made by the staff of
the Commission or that the staff of the Commission has no further comments on
the Registration Statement, as the case may be, a request for acceleration of
the effectiveness of the Registration Statement to a time and date not later
than forty-eight (48) hours after the submission of such request. The Company
will maintain the effectiveness of the Registration Statement until the earlier
to occur of (i) the date on which all of the Registrable Securities eligible for
resale thereunder have been publicly sold pursuant to either the Registration
Statement or Rule 144 and (ii) the date on which all of the Registrable
Securities remaining to be sold under the Registration Statement (in the
reasonable opinion of counsel to the Holder) may be immediately sold to the
public under Rule 144(k) or any successor provision, assuming that all Warrant
Shares are issued by means of a cashless exercise of the Warrants (the period
beginning on the Closing Date and ending on the earlier to occur of (i) or (ii)
above being referred to herein as the "Registration Period").
(c) Registration Default. If (A) the Registration
Statement is not filed on or before the Filing Deadline or declared effective by
the Commission on or before the Registration Deadline, (B) after the
Registration Statement has been declared effective by the Commission and during
a period in which an Allowed Delay (as hereinafter defined) is not in effect,
sales of Registrable Securities cannot be made by a Holder under the
Registration Statement for any reason not within the exclusive control of such
Holder (other than such Registrable Securities as are then freely saleable
pursuant to Rule 144(k)), or (C) an amendment to the Registration Statement, or
a new registration statement, required to be filed pursuant to the terms of
paragraph 4(k) below is not filed on or before the date required by such
paragraph (each of (A), (B) and (C) being referred to herein as a "Registration
Default"), and such Registration Default, (i) in the case of a Registration
Default described in clause (A), occurs or is continuing after seven (7)
Business Days following delivery of a written notice of the Registration
Deadline by Investor at any time after the date that is thirty (30) days prior
to the Registration Deadline, or (ii) in the case of a Registration Default
described in clause (B), or clause (C), continues for seven (7) Business Days
following delivery of a written notice of such default by the Investor to the
Company, the Company shall make payments to each Holder equal to one and
one-half percent (1.5%) of the aggregate amount of principal and interest
outstanding on the Debentures then held by such Holder for each thirty (30) day
period in which a Registration Default occurs (prorated for any period of less
than thirty days). Each such payment shall be made within five (5) Business Days
following the last day of the calendar month in which a Registration Default
occurs. Any such payment shall be in addition to any other remedies available to
each Holder at law or in equity, whether pursuant to the terms hereof, the First
Purchase Agreement, the Second Purchase Agreement, or otherwise.
(d) Allowed Delay. The Company may delay the disclosure
of material non-public information, and suspend the availability of the
Registration Statement, for no more than (i) ten (10) consecutive Business Days
or (ii) thirty (30) calendar days in any twelve (12) month period, in the event
of a proposed merger, reorganization or similar transaction involving the
Company, as long as its board of directors (A) has determined, upon the advice
of counsel, that such information would be required to be disclosed in an
offering registered under the Securities Act and (B) reasonably deems it in the
Company's best interests not to disclose such information publicly (an "Allowed
Delay"). The Company shall promptly (i) notify each Holder in writing of the
existence of material non-public information giving rise to an Allowed Delay
(but in no event, without the prior written consent of such Holder, shall the
Company disclose to such Holder any of the facts or circumstances regarding any
material non-public information), (ii) advise each Holder in writing to cease
all sales under the Registration Statement until the termination of the Allowed
Delay and (iii) notify each Holder in writing immediately upon the termination
or expiration of an Allowed Delay.
(e) Allocation of Debenture Shares and Warrant Shares.
The initial number of Debenture Shares and Warrant Shares included in any
Registration Statement and each increase in the number thereof included therein
shall be allocated pro rata among the Holders based on the aggregate number of
Registrable Securities issuable to each Holder at the time the Registration
Statement covering such initial number of Registrable Securities or increase
thereof is declared effective by the Commission (such number to be determined
using the Conversion Price (as defined in the First Debentures or the Second
Debentures, as the case may be) or Exercise Price (as defined in the First
Warrants or the Second Warrants, as the case may be), as the case may be, in
effect at such time and without regard to any restriction on the ability of a
Holder to convert such Holder's Debentures or exercise such Holder's Warrant as
of such date). In the event that a Holder sells or otherwise transfers any of
such Holder's Registrable Securities, each transferee shall be allocated the
portion of the then remaining number of Registrable Securities included in such
Registration Statement allocable to the transferor.
(f) Registration of Other Securities. During the period
beginning on the date hereof and ending on the Effective Date, the Company shall
refrain from filing any registration statement (other than (i) the Registration
Statement or (ii) a registration statement on Form S-8 with respect to stock
option plans and stock plans currently in effect).
3. PIGGYBACK REGISTRATION.
If at any time prior to the expiration of the Registration Period, (i)
the Company proposes to register shares of Common Stock under the Securities Act
in connection with the public offering of such shares for cash (a "Proposed
Registration") other than a registration statement on Form S-8 or any successor
or other forms promulgated for similar purposes and (ii) a Registration
Statement covering the sale of all of the Registrable Securities is not then
effective and available for sales thereof by the Holders, the Company shall, at
such time, promptly give each Holder written notice of such Proposed
Registration. Each Holder shall have ten (10) Business Days from its receipt of
such notice to deliver to the Company a written request specifying the amount of
Registrable Securities that such Holder intends to sell and such Holder's
intended method of distribution. Upon receipt of such request, the Company shall
use its best efforts to cause all Registrable Securities
which the Company has been requested to register to be registered under the
Securities Act to the extent necessary to permit their sale or other disposition
in accordance with the intended methods of distribution specified in the request
of such Holder; provided, however, that the Company shall have the right to
postpone, withdraw or delay any registration effected pursuant to this Section 3
without obligation to the Holder. If, in connection with any underwritten public
offering for the account of the Company or for stockholders of the Company that
have contractual rights to require the Company to register shares of Common
Stock, the managing underwriter(s) thereof shall impose a limitation on the
number of shares of Common Stock which may be included in a registration
statement because, in the judgment of such underwriter(s), marketing or other
factors dictate such limitation is necessary to facilitate such offering, then
the Company shall be obligated to include in the registration statement only
such limited portion of the Registrable Securities with respect to which each
Holder has requested inclusion hereunder as such underwriter(s) shall permit.
Any exclusion of Registrable Securities shall be made pro rata among the Holders
seeking to include Registrable Securities in a registration statement, in
proportion to the number of Registrable Securities sought to be included by such
Holders; provided, however, that the Company shall not exclude any Registrable
Securities unless the Company has first excluded all outstanding securities, the
holders of which are not entitled to inclusion of such securities in the
registration statement or are not entitled to pro rata inclusion with the
Registrable Securities; and provided, further, that, after giving effect to the
immediately preceding proviso, any exclusion of Registrable Securities shall be
made pro rata with holders of other securities having the right to include such
securities in the registration statement. In no event shall the Company include
any securities other than the Registrable Securities on the Registration
Statement or on any registration statement filed by the Company on behalf of the
Holders pursuant to the terms hereof.
4. OBLIGATIONS OF THE COMPANY.
In addition to performing its obligations hereunder, including without
limitation those pursuant to paragraphs 2(a) and (b) above, the Company shall:
(a) prepare and file with the Commission such amendments
and supplements to the Registration Statement and the prospectus used in
connection with the Registration Statement as may be necessary to comply with
the provisions of the Securities Act or to maintain the effectiveness of the
Registration Statement during the Registration Period, or as may be reasonably
requested by a Holder in order to incorporate information concerning such Holder
or such Holder's intended method of distribution;
(b) as soon as practicable following the Closing, secure
the listing of all Registrable Securities on the Nasdaq National Market System,
and provide each Holder with reasonable evidence thereof;
(c) upon the effectiveness of the Registration Statement,
furnish to each Holder such number of copies of the prospectus included in the
Registration Statement, including a preliminary prospectus, in conformity with
the requirements of the Securities Act, and such other documents as such Holder
may reasonably request in order to facilitate the disposition of such Holder's
Registrable Securities;
(d) use all commercially reasonable efforts to register
or qualify the Registrable Securities under the securities or "blue sky" laws of
such jurisdictions within the United States as shall be reasonably requested in
writing from time to time by a Holder, and do any and all other acts or things
which may be necessary or advisable to enable such Holder to consummate the
public sale or other disposition of the Registrable Securities in such
jurisdictions; provided that the Company shall not be required in connection
therewith or as a condition thereto to qualify to do business, to subject itself
to taxation in any such jurisdiction or to file a general consent to service of
process in any such jurisdiction;
(e) in the event of an underwritten public offering of
the Registrable Securities, enter into (together with all Holders proposing to
distribute Registrable Securities through such underwriting) and perform its
obligations under an underwriting agreement, in usual and customary form
reasonably acceptable to the Company, with the managing underwriter of such
offering;
(f) notify each Holder immediately after becoming aware
of the occurrence of any event (but shall not, without the prior written consent
of such Holder, disclose to such Holder any facts or circumstances constituting
material non-public information) as a result of which the prospectus included in
the Registration Statement, as then in effect, contains an untrue statement of
material fact or omits to state a material fact required to be stated therein or
necessary to make the statements therein not misleading in light of the
circumstances then existing, and (except during an Allowed Delay) as promptly as
practicable prepare, file with the Commission and furnish to each Holder a
reasonable number of copies of a supplement or an amendment to such prospectus
as may be necessary so that such prospectus does not contain an untrue statement
of material fact or omit to state a material fact required to be stated therein
or necessary to make the statements therein not misleading in light of the
circumstances then existing;
(g) use all commercially reasonable efforts to prevent
the issuance of any stop order or other order suspending the effectiveness of
the Registration Statement and, if such an order is issued, to obtain the
withdrawal thereof at the earliest possible time and to notify each Holder of
the issuance of such order and the resolution thereof;
(h) furnish to each Holder, on the date that the
Registration Statement, or any successor registration statement, becomes
effective, (x) a letter, dated such date, of outside counsel representing the
Company (and reasonably acceptable to such Holder) addressed to such Holder,
confirming such effectiveness and, to the knowledge of such counsel, the absence
of any stop order, and (y) in the case of an underwriting (or if the Commission
deems such Holder as an underwriter for disclosure purposes), (A) a copy of an
opinion, dated such date, of such outside counsel, in such form and substance as
is required to be given to the underwriters, and (B) a letter addressed to such
Holder, dated such date, from the Company's independent certified public
accountants, in such form and substance as is required to be given by the
Company's independent certified public accountants to such underwriters;
(i) provide to each Holder and its representatives, upon
reasonable prior notice, the opportunity to conduct a reasonable inquiry of the
Company's financial and other records during
normal business hours and make available its officers for questions regarding
information which such Holder may reasonably request in order to fulfill any due
diligence obligation on its part;
(j) permit counsel for each Holder to review the
Registration Statement and all amendments and supplements thereto, and any
comments made by the staff of the Commission concerning such Holder and/or the
transactions contemplated by the Transaction Documents (as defined in the First
Purchase Agreement), and the Transaction Documents (as defined in the Second
Purchase Agreement) (collectively, the "Transaction Documents") and the
Company's responses thereto, within a reasonable period of time (but in no event
less than three (3) Business Days after such Holder has received such documents)
prior to the filing thereof with the Commission (or, in the case of comments
made by the staff of the Commission, within a reasonable period of time
following the receipt thereof by the Company); and
(k) in the event that, at any time, the number of shares
available under the Registration Statement is insufficient to cover one hundred
and fifty percent 150% of the Registrable Securities issuable under the
Debentures and Warrants (such number to be determined using the Conversion Price
(as defined in the First Debentures or the Second Debentures, as the case may
be) or Exercise Price (as defined in the First Warrants or the Second Warrants,
as the case may be), as the case may be, in effect at such time and without
regard to any restriction on the ability of any Holder to convert such Holder's
Debentures or exercise such Holder's Warrant) the Company shall promptly amend
the Registration Statement or file a new registration statement, in any event as
soon as practicable, but not later than the tenth (10th) day following notice
from a Holder of the occurrence of such event, so that the Registration
Statement or such new registration statement, or both, covers no less than one
hundred and fifty percent (150%) of the Registrable Securities eligible for
resale thereunder and issuable under the Debentures and Warrants (such number to
be determined using the Conversion Price (as defined in the First Debentures or
the Second Debentures, as the case may be) or Exercise Price (as defined in the
First Warrants or the Second Warrants, as the case may be), as the case may be,
in effect at the time of such amendment or filing and without regard to any
restriction on the ability of any Holder to convert such Holder's Debentures or
exercise such Holder's Warrant). The Company shall use its best efforts to cause
such amendment and/or new Registration Statement to become effective as soon as
practicable following the filing thereof. Any Registration Statement filed
pursuant to this paragraph 4(k) shall state that, to the extent permitted by
Rule 416 under the Securities Act, such Registration Statement also covers such
indeterminate number of additional shares of Common Stock as may become issuable
upon conversion of the Debentures and exercise of the Warrants in order to
prevent dilution resulting from stock splits, stock dividends or similar events.
Unless and until such amendment or new Registration Statement becomes effective,
each Holder shall have the rights described in Section 2(c) above.
5. OBLIGATIONS OF EACH HOLDER.
In connection with the registration of Registrable Securities pursuant
to a Registration Statement, each Holder shall:
(a) timely furnish to the Company in writing such
information regarding itself and the intended method of disposition of such
Registrable Securities as the Company shall reasonably request in order to
effect the registration thereof;
(b) upon receipt of any notice from the Company of the
happening of any event of the kind described in paragraphs 4(f) or 4(g),
immediately discontinue any sale or other disposition of such Registrable
Securities pursuant to such Registration Statement until the filing of an
amendment or supplement as described in paragraph 4(f) or withdrawal of the stop
order referred to in paragraph 4(g), and use commercially reasonable efforts to
maintain the confidentiality of such notice and its contents;
(c) in the event of an underwritten offering of such
Registrable Securities in which such Holder participates, enter into a customary
and reasonable underwriting agreement and execute such other documents as the
Company and the managing underwriter for such offering may reasonably request;
(d) to the extent required by applicable law, deliver a
prospectus to the Investor of such Registrable Securities;
(e) notify the Company when it has sold all of the
Registrable Securities held by it; and
(f) notify the Company in the event that any information
supplied by such Holder in writing for inclusion in such Registration Statement
or related prospectus is untrue or omits to state a material fact required to be
stated therein or necessary to make such information not misleading in light of
the circumstances then existing; immediately discontinue any sale or other
disposition of such Registrable Securities pursuant to such Registration
Statement until the filing of an amendment or supplement to such prospectus as
may be necessary so that such prospectus does not contain an untrue statement of
material fact or omit to state a material fact required to be stated therein or
necessary to make the statements therein not misleading in light of the
circumstances then existing; and use commercially reasonable efforts to assist
the Company as may be appropriate to make such amendment or supplement effective
for such purpose.
6. INDEMNIFICATION.
In the event that any Registrable Securities are included in a
Registration Statement under this Agreement:
(a) To the extent permitted by law, the Company shall
indemnify and hold harmless each Holder, the officers, directors, managers,
shareholders, partners, members, employees, agents and representatives of such
Holder, and each person, if any, who controls such Holder within the meaning of
the Securities Act or the Securities Exchange Act of 1934, as amended (the
"Exchange Act"), against any losses, claims, damages, liabilities or reasonable
out-of-pocket expenses (whether joint or several) (collectively, including legal
or other expenses reasonably incurred in connection with investigating or
defending same, "Losses"), insofar as any
such Losses arise out of or are based upon (i) any untrue statement or alleged
untrue statement of a material fact contained in such Registration Statement,
including any preliminary prospectus or final prospectus contained therein or
any amendments or supplements thereto, or (ii) the omission or alleged omission
to state therein a material fact required to be stated therein, or necessary to
make the statements therein, in light of the circumstances under which they were
made, not misleading. Subject to the provisions of paragraph 6(c) below, the
Company will reimburse such Holder, and each such officer, director, employee,
agent, representative or controlling person, for any legal or other
out-of-pocket expenses as reasonably incurred by any such entity or person in
connection with investigating or defending any Loss; provided, however, that the
foregoing indemnity shall not apply to amounts paid in settlement of any Loss if
such settlement is effected without the consent of the Company (which consent
shall not be unreasonably withheld), nor shall the Company be obligated to
indemnify any person for any Loss to the extent that such Loss is (i) based upon
and is in conformity with written information furnished by such person expressly
for use in such Registration Statement or (ii) based on a failure of such person
to deliver or cause to be delivered the final prospectus contained in the
Registration Statement and made available by the Company, if such delivery is
required by applicable law.
(b) To the extent permitted by law, each Holder who is
named in such Registration Statement as a selling stockholder, acting severally
and not jointly, shall indemnify and hold harmless the Company, the officers,
directors, employees, agents and representatives of the Company, and each
person, if any, who controls the Company within the meaning of the Securities
Act or the Exchange Act, against any Losses to the extent (and only to the
extent) that any such Losses are based upon and in conformity with written
information furnished by such Holder expressly for use in such Registration
Statement. Subject to the provisions of paragraph 6(c) below, such Holder will
reimburse any legal or other expenses as reasonably incurred by the Company and
any such officer, director, employee, agent, representative, or controlling
person, in connection with investigating or defending any such Loss; provided,
however, that the foregoing indemnity shall not apply to amounts paid in
settlement of any such Loss if such settlement is effected without the consent
of such Holder (which consent shall not be unreasonably withheld); and provided,
further, that, in no event shall any indemnity under this subsection 6(b) exceed
the net proceeds resulting from the sale of the Registrable Securities sold by
such Holder under such Registration Statement.
(c) Promptly after receipt by an indemnified party under
this Section 6 of notice of the commencement of any action (including any
governmental action), such indemnified party will, if a claim in respect thereof
is to be made against any indemnifying party under this Section 6, deliver to
the indemnifying party a written notice of the commencement thereof and the
indemnifying party shall have the right to participate in and to assume the
defense thereof with counsel mutually satisfactory to the parties; provided,
however, that an indemnified party shall have the right to retain its own
counsel, with the reasonably incurred fees and expenses of one such counsel for
all indemnified parties to be paid by the indemnifying party, if representation
of such indemnified party by the counsel retained by the indemnifying party
would be inappropriate under applicable standards of professional conduct due to
actual or potential conflicting interests between such indemnified party and any
other party represented by such counsel in such proceeding. The failure to
deliver written notice to the indemnifying party within a reasonable time of the
commencement of any such action, to the extent prejudicial to its ability to
defend such action, shall
relieve such indemnifying party of any liability to the indemnified party under
this Section 6 with respect to such action, but the omission so to deliver
written notice to the indemnifying party will not relieve it of any liability
that it may have to any indemnified party otherwise than under this Section 6 or
with respect to any other action unless the indemnifying party is materially
prejudiced as a result of not receiving such notice.
(d) In the event that the indemnity provided in paragraph
(a) or (b) of this Section 6 is unavailable or insufficient to hold harmless an
indemnified party for any reason, the Company and each Holder agree, severally
and not jointly, to contribute to the aggregate Losses to which the Company or
such Holder may be subject in such proportion as is appropriate to reflect the
relative fault of the Company and such Holder in connection with the statements
or omissions which resulted in such Losses; provided, however, that in no case
shall such Holder be responsible for any amount in excess of the net proceeds
resulting from the sale of the Registrable Securities sold by it under the
Registration Statement. Relative fault shall be determined by reference to
whether any alleged untrue statement or omission relates to information provided
by the Company or by such Holder. The Company and each Holder agree that it
would not be just and equitable if contribution were determined by pro rata
allocation or any other method of allocation which does not take account of the
equitable considerations referred to above. Notwithstanding the provisions of
this paragraph (d), 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. For purposes of this Section 6, each person who controls a
Holder within the meaning of either the Securities Act or the Exchange Act and
each officer, director, employee, agent or representative of such Holder shall
have the same rights to contribution as such Holder, and each person who
controls the Company within the meaning of either the Securities Act or the
Exchange Act and each officer, director, employee, agent or representative of
the Company shall have the same rights to contribution as the Company, subject
in each case to the applicable terms and conditions of this paragraph (d).
(e) The obligations of the Company and each Holder under
this Section 6 shall survive the conversion of the Debentures and exercise of
the Warrants in full, the completion of any offering or sale of Registrable
Securities pursuant to a Registration Statement under this Agreement, or
otherwise.
7. REPORTS.
With a view to making available to each Holder the benefits of
Rule 144 under the Securities Act ("Rule 144") and any other similar rule or
regulation of the Commission that may at any time permit such Holder to sell
securities of the Company to the public without registration, the Company agrees
to:
(a) make and keep public information available, as those
terms are understood and defined in Rule 144;
(b) use its best efforts to file with the Commission in a
timely manner all reports and other documents required of the Company under the
Securities Act and the Exchange Act; and
(c) furnish to such Holder, so long as such Holder owns
any Registrable Securities, promptly upon written request (i) a written
statement by the Company, if true, that it has complied with the reporting
requirements of Rule 144, the Securities Act and the Exchange Act, (ii) to the
extent not publicly available through the Commission's EDGAR database, a copy of
the most recent annual or quarterly report of the Company and such other reports
and documents so filed by the Company, and (iii) such other information as may
be reasonably requested by such Holder in connection with such Holder's
compliance with any rule or regulation of the Commission which permits the
selling of any such securities without registration.
8. MISCELLANEOUS.
(a) Expenses of Registration. Except as otherwise
provided in the First Purchase Agreement and the Second Purchase Agreement, all
reasonable expenses, other than underwriting discounts and commissions and fees
and expenses of counsel and other advisors to each Holder, incurred in
connection with the registrations, filings or qualifications described herein,
including (without limitation) all registration, filing and qualification fees,
printers' and accounting fees, the fees and disbursements of counsel for the
Company, and the fees and disbursements incurred in connection with the opinion
and letter described in paragraph 4(h) hereof, shall be borne by the Company.
(b) Amendment; Waiver. Except as expressly provided
herein, neither this Agreement nor any term hereof may be amended or waived
except pursuant to a written instrument executed by the Company and the Holders
of at least two-thirds (2/3) of the Registrable Securities into which all of the
Debentures and Warrants then outstanding are convertible or exercisable (without
regard to any limitation on such conversion or exercise). Any amendment or
waiver effected in accordance with this paragraph shall be binding upon each
Holder, each future Holder and the Company.
(c) Notices. Any notice, demand or request required or
permitted to be given by the Company or an Investor pursuant to the terms of
this Agreement shall be in writing and shall be deemed delivered (i) when
delivered personally or by verifiable facsimile transmission, unless such
delivery is made on a day that is not a Business Day, in which case such
delivery will be deemed to be made on the next succeeding Business Day, (ii) on
the next Business Day after timely delivery to an overnight courier and (iii) on
the Business Day actually received if deposited in the U.S. mail (certified or
registered mail, return receipt requested, postage prepaid), addressed as
follows:
If to the Company:
OMNI Energy Services Corp.
4500 NE Evangeline Thruway
Carencro, LA 70520
Attn: James C. Eckert
Tel: (337) 896-6664
Fax: (337) 896-6655
with a copy to:
Locke Liddell & Sapp LLP
600 Travis, Suite 3200
Houston, TX 77002
Attention: David F. Taylor
Tel: (713) 226-1496
Fax: (713) 223-3717
and if to a Holder, to such address as shall be designated by such Holder in
writing to the Company.
(d) Assignment. Upon the transfer of any Debentures,
Warrants or Registrable Securities by a Holder, the rights of such Holder
hereunder with respect to such securities so transferred shall be assigned
automatically to the transferee thereof, and such transferee shall thereupon be
deemed to be a "Holder" for purposes of this Agreement, as long as: (i) the
Company is, within a reasonable period of time following such transfer,
furnished with written notice of the name and address of such transferee, (ii)
the transferee agrees in writing with the Company to be bound by all of the
provisions hereof, and (iii) such transfer is made in accordance with the
applicable requirements of the First Purchase Agreement or Second Purchase
Agreement, as the case may be; provided, however, that the registration rights
granted in this Agreement shall not be transferred to any person or entity that
receives any Debentures, Warrants or Registrable Securities in a public
transaction pursuant to an effective registration statement under the Securities
Act or pursuant to Rule 144.
(e) Counterparts. This Agreement may be executed in
counterparts, each of which shall be deemed an original, and all of which
together shall be deemed one and the same instrument. This Agreement, once
executed by a party, may be delivered to any other party hereto by facsimile
transmission.
(f) Governing Law. This Agreement shall be governed by
and construed in accordance with the laws of the State of New York applicable to
contracts made and to be performed entirely within the State of New York.
(g) Holder of Record. A person is deemed to be a Holder
whenever such person owns or is deemed to own of record such Registrable
Securities. If the Company receives conflicting instructions, notices or
elections from two or more persons with respect to the same Registrable
Securities, the Company shall act upon the basis of instructions, notice or
election received from the record owner of such Registrable Securities.
(h) Entire Agreement. This Agreement, the First Purchase
Agreement, the Second Purchase Agreement, the Debentures, the Warrants, and the
other Transaction Documents, constitute the entire agreement among the parties
hereto with respect to the subject matter hereof and thereof. There are no
restrictions, promises, warranties or undertakings, other than those set forth
or referred to herein and therein. This Agreement, the First Purchase Agreement,
the Second
Purchase Agreement, the Debentures, the Warrants, and the other Transaction
Documents, supersede all prior agreements and understandings among the parties
hereto with respect to the subject matter hereof and thereof.
(i) Headings. The headings in this Agreement are for
convenience of reference only and shall not limit or otherwise affect the
meaning hereof.
(j) Third Party Beneficiaries. This Agreement is intended
for the benefit of the parties hereto and their respective permitted successors
and assigns, and is not for the benefit of, nor may any provision hereof be
enforced by, any other person.
[Signature Pages to Follow]
IN WITNESS WHEREOF, the undersigned have executed this Agreement as of
the date first-above written.
OMNI ENERGY SERVICES CORP.
By: /s/ G. Darcy Klug
------------------------
G. Darcy Klug
Chief Financial Officer
PROVIDENT PREMIER MASTER FUND LTD.
By: Gemini Investment Strategies, LLC, as Attorney-in-Fact
By: /s/ Steven Winters
-------------------------
Steven Winters
Authorized Signatory
PORTSIDE GROWTH AND OPPORTUNITY FUND
By: /s/ Jeffrey Smith
---------------------------
Jeffrey Smith
Authorized Signatory
MANCHESTER SECURITIES CORP.
By: /s/ Elliot Greenberg
----------------------------
Elliot Greenberg
Vice President
GEMINI MASTER FUND, LTD.
By: Gemini Investment Strategies, LLC, as Investment Manager
By: /s/ Steven Winters
----------------------
Steven Winters
Authorized Signatory