exv4w3



 






EXHIBIT 4.3




BANC OF AMERICA SECURITIES LLC




$300,000,000 AGGREGATE PRINCIPAL AMOUNT




CAL DIVE INTERNATIONAL, INC.




3.25% CONVERTIBLE SENIOR NOTES DUE 2025




Registration Rights Agreement




dated March 30, 2005





 









 




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     REGISTRATION RIGHTS AGREEMENT, dated as of March 30, 2005, between Cal Dive
International, Inc. a Minnesota company (together with any successor entity, herein referred to as
the “Company”) and Banc of America Securities LLC, as representative of the Initial Purchasers (the
“Initial Purchasers”), under the Purchase Agreement (as defined below).



     Pursuant to the Purchase Agreement, dated as of March 23, 2005 (the “Purchase Agreement”),
between the Company and the Initial Purchasers, the Initial Purchasers have agreed to purchase from
the Company $300,000,000 (as the Initial Purchasers have exercised their option in full) in
aggregate principal amount of 3.25% Convertible Senior Notes due 2025 (the “Notes”). The Notes
will be convertible into fully paid, non-assessable shares of common stock, no par value per share,
of the Company (the “Common Stock”). The Notes will be convertible on the terms, and subject to
the conditions, set forth in the Indenture (as defined herein). To induce the Initial Purchasers
to purchase the Notes, the Company has agreed to provide the registration rights set forth in this
Agreement pursuant to Section 5(j) of the Purchase Agreement.



     The parties hereby agree as follows:



     1. Definitions. Capitalized terms used in this Agreement without definition shall have their
respective meanings set forth in the Purchase Agreement. As used in this Agreement, the following
capitalized terms shall have the following meanings:



     “Additional Amounts” has the meaning set forth in Section 3(a) hereof.



     “Additional Amounts Payment Date” means each June 15 and December 15.




     “Affiliate” of any specified person means any other person which, directly or indirectly, is
in control of, is controlled by, or is under common control with, such specified person. For
purposes of this definition, control of a person means the power, direct or indirect, to direct or
cause the direction of the management and policies of such person whether by contract or otherwise;
and the terms “controlling” and “controlled” have meanings correlative to the foregoing.



     “Agreement” means this Registration Rights Agreement.



     “Amendment Effectiveness Deadline Date” has the meaning set forth in Section 2(e) hereof.



     “Blue Sky Application” has the meaning set forth in Section 6(a)(i) hereof.



     “Business Day” has the meaning set forth in the Indenture.



     “Commission” means the Securities and Exchange Commission.



 









 




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     “Common Stock” has the meaning set forth in the preamble hereto.



     “Company” has the meaning set forth in the preamble hereto.



     “Effectiveness Period” has the meaning set forth in Section 2(a)(iii) hereof.



     “Effectiveness Target Date” has the meaning set forth in Section 2(a)(ii) hereof.



     “Exchange Act” means the Securities Exchange Act of 1934, as amended, and the rules and
regulations of the Commission promulgated thereunder.



     “Holder” means any Person who owns, beneficially or otherwise, Transfer Restricted Securities.



     “Indemnified Holder” has the meaning set forth in Section 6(a) hereof.



     “Indenture” means the Indenture, dated as of March 30, 2005 between the Company and JPMorgan
Chase Bank, N.A., as trustee (the “Trustee”), pursuant to which the Notes are to be issued, as such
Indenture is amended, modified or supplemented from time to time in accordance with the terms
thereof.



     “Initial Purchasers” has the meaning set forth in the preamble hereto.



     “Majority of Holders” means Holders holding over 50% of the aggregate principal amount of
Notes outstanding; provided that, for the purpose of this definition, a holder of shares of Common
Stock which constitute Transfer Restricted Securities and issued upon conversion of the Notes shall
be deemed to hold an aggregate principal amount of Notes (in addition to the principal amount of
Notes held by such holder) equal to the quotient of (x) the number of such shares of Common Stock
held by such holder and (y) the conversion rate in effect at the time of such conversion as
determined in accordance with the Indenture.



     “NASD” means the National Association of Securities Dealers, Inc.



     “Notes” has the meaning set forth in the preamble hereto.



     “Notice and Questionnaire” means a written notice executed by a Holder and delivered to the
Company containing substantially the information called for by the Form of Selling Securityholder
Notice and Questionnaire attached as Annex A to the Offering Memorandum of the Company dated March
23, 2005 relating to the Notes.



     “Notice Holder” has the meaning set forth in Section 2(b) hereof.



 









 




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     “Person” means any individual, partnership, corporation, company, unincorporated organization,
trust, joint venture or a government or agency or political subdivision thereof.



     “Purchase Agreement” has the meaning set forth in the preamble hereto.



     “Prospectus” means the prospectus included in a Shelf Registration Statement, as amended or
supplemented by any prospectus supplement and by all other amendments thereto, including
post-effective amendments, and all material incorporated by reference into such prospectus.



     “Record Holder” means, with respect to any Additional Amounts Payment Date, each Person who is
a Holder on the interest record date set forth in the Indenture immediately preceding the relevant
Additional Amounts Payment Date. In the case of a Holder of shares of Common Stock issued upon
conversion of the Notes, “Record Holder” shall mean each Person who is a Holder of shares of Common
Stock which constitute Transfer Restricted Securities on the interest record date set forth in the
Indenture immediately preceding the relevant Additional Amounts Payment Date.



     “Registration Default” has the meaning set forth in Section 3(a) hereof.



     “Securities Act” means the Securities Act of 1933, as amended, and the rules and regulations
of the Commission promulgated thereunder.



     “Shelf Filing Deadline” has the meaning set forth in Section 2(a)(i) hereof.



     “Shelf Registration Statement” has the meaning set forth in Section 2(a)(i) hereof.



     “Subsequent Shelf Registration Statement” has the meaning set forth in Section 2(c) hereof.



     “Suspension Notice” has the meaning set forth in Section 4(c) hereof.



     “Suspension Period” has the meaning set forth in Section 4(b)(i) hereof.



     “TIA” means the Trust Indenture Act of 1939, as amended, and the rules and regulations of the
Commission promulgated thereunder, in each case, as in effect on the date the Indenture is
qualified under the TIA.



     “Transfer Restricted Securities” means each Note and each share of Common Stock issued or
issuable upon conversion of Notes until the earlier of:




     (i) the date on which such Note or such share of Common Stock issued upon
conversion of such Note has been effectively



 









 




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registered under the Securities Act and disposed of in accordance with the
Shelf Registration Statement;




     (ii) the date on which such Note or such share of Common Stock issued upon
conversion of such Note is transferred in compliance with Rule 144 under the
Securities Act or may be sold or transferred by a person who is not an affiliate
of the Company pursuant to Rule 144 under the Securities Act (or any other
similar provision then in force) without any volume or manner of sale
restrictions thereunder; or




     (iii) the date on which such Note or such share of Common Stock issued upon
conversion of such Note ceases to be outstanding (whether as a result of
redemption, repurchase and cancellation, conversion or otherwise).



     “Underwritten Registration” means a registration in which Notes of the Company are sold to an
underwriter for reoffering to the public.



     Unless the context otherwise requires, the singular includes the plural, and words in the
plural include the singular.



     2. Shelf Registration.




     (a) The Company shall:




     (i) not later than 90 days after the date hereof (the “Shelf Filing
Deadline”), cause to be filed a registration statement pursuant to Rule 415 under
the Securities Act (the “Shelf Registration Statement”), which Shelf Registration
Statement shall provide for resales of all Transfer Restricted Securities held by
Holders that have provided the information required pursuant to the terms of
Section 2(b) hereof;




     (ii) use its reasonable best efforts to cause the Shelf Registration
Statement to be declared effective by the Commission not later than 180 days
after the date hereof (the “Effectiveness Target Date”); and




     (iii) use its reasonable best efforts to keep the Shelf Registration
Statement continuously effective, supplemented and amended as required by the
provisions of Section 4(b) hereof to the extent necessary to ensure that (A) it
is available for resales by the Holders of Transfer Restricted Securities
entitled, subject to Section 2(b), to the benefit of this Agreement and (B) it
conforms with the requirements of this Agreement and the Securities Act, for a
period (the “Effectiveness Period”) until the earliest to occur of:



 









 




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     (1) expiration of the holding period applicable to the Transfer
Restricted Securities held by non-affiliates under Rule 144(k) under
the Securities Act; and




     (2) the date when all of the Transfer Restricted Securities are
disposed of pursuant to a Shelf Registration Statement or pursuant
to Rule 144 under the Securities Act (or any other similar provision
then in effect) or such Transfer Restricted Securities cease to be
outstanding (whether as a result of redemption, repurchase and
cancellation, conversion or otherwise).




     (b) The Company shall furnish a written notice to each Holder of the Transfer
Restricted Securities at least 30 days before filing the Shelf Registration Statement and
inform each Holder that to have its Transfer Restricted Securities included in the Shelf
Registration Statement it must deliver a completed Notice and Questionnaire to the
Company. At the time the Shelf Registration Statement is declared effective, each Holder
that has delivered a completed Notice and Questionnaire to the Company (a “Notice Holder”)
on or prior to the date fifteen (15) Business Days prior to such time of effectiveness
shall be named as a selling securityholder in the Shelf Registration Statement and the
related Prospectus in such a manner as to permit such Holder to deliver such Prospectus to
purchasers of Transfer Restricted Securities in accordance with applicable law. None of
the Company’s securityholders (other than the Holders of Transfer Restricted Securities)
shall have the right to include any of the Company’s securities in the Shelf Registration
Statement.




     (c) If the Shelf Registration Statement or any Subsequent Shelf Registration
Statement ceases to be effective or fails to be usable for any reason at any time during
the Effectiveness Period (other than because all Transfer Restricted Securities registered
thereunder shall have been resold pursuant thereto or shall have otherwise ceased to be
Transfer Restricted Securities), the Company shall use its reasonable best efforts to
obtain the prompt withdrawal of any order suspending the effectiveness thereof, and in any
event shall, subject to the Company’s right to declare a Suspension Period, as promptly as
possible amend the Shelf Registration Statement in a manner reasonably expected to obtain
the withdrawal of the order suspending the effectiveness thereof, or file an additional
Shelf Registration Statement covering all of the securities that as of the date of such
filing are Transfer Restricted Securities ( a “Subsequent Shelf Registration Statement”).
If a Subsequent Shelf Registration Statement is filed, the Company shall use its
reasonable best efforts to cause the Subsequent Shelf Registration Statement to become
effective as promptly as is practicable after such filing and to keep such Registration
Statement



 









 




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(or Subsequent Shelf Registration Statement) continuously effective until the end of
the Effectiveness Period.




     (d) The Company shall supplement and amend the Shelf Registration Statement if
required by the rules, regulations or instructions applicable to the registration form
used by the Company for such Shelf Registration Statement, if required by the Securities
Act or as reasonably requested by the Initial Purchasers or by the Trustee on behalf of
the Holders of the Transfer Restricted Securities covered by such Shelf Registration
Statement.




     (e) Each Holder agrees that if such Holder wishes to sell Transfer Restricted
Securities pursuant to a Shelf Registration Statement and related Prospectus, it will do
so only in accordance with this Section 2(e), and the procedures set forth in Section 4
hereof. Each Holder wishing to sell Transfer Restricted Securities pursuant to a Shelf
Registration Statement and related Prospectus must deliver a Notice and Questionnaire to
the Company. In order to be named as a selling securityholder in the Prospectus at the
time of effectiveness of the Shelf Registration Statement, the Notice and Questionnaire
must be delivered at least fifteen (15) Business Days prior to the effectiveness of the
Shelf Registration Statement. From and after the date the Shelf Registration Statement is
declared effective the Company shall, as promptly as practicable after the date a Notice
and Questionnaire is received by the Company, and in any event upon the later of (x)
fifteen (15) Business Days after such date or (y) fifteen (15) Business Days after the
expiration of any Suspension Period in effect when the Notice and Questionnaire is
delivered or put into effect within fifteen (15) Business Days of such delivery date:




     (i) if required by applicable law, file with the Commission a post-effective
amendment to the Shelf Registration Statement or prepare and, if required by
applicable law, file a supplement to the related Prospectus or a supplement or
amendment to any document incorporated therein by reference or file any other
required document so that the Holder delivering such Notice and Questionnaire is
named as a selling securityholder in the Shelf Registration Statement and the
related Prospectus in such a manner as to permit such Holder to deliver such
Prospectus to purchasers of the Transfer Restricted Securities in accordance with
applicable law and, if the Company shall file a post-effective amendment to the
Shelf Registration Statement, use its reasonable best efforts to cause such
post-effective amendment to be declared effective under the Securities Act as
promptly as is practicable, but in any event by the date (the “Amendment
Effectiveness Deadline Date”) that is sixty (60) days after the date such
post-effective amendment is required by this clause to be filed;



 









 




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     (ii) provide such Holder copies of any documents filed pursuant to Section
2(e)(i) hereof; and




     (iii) notify such Holder as promptly as practicable after the effectiveness
under the Securities Act of any post-effective amendment filed pursuant to
Section 2(e)(i) hereof;



provided that if such Notice and Questionnaire is delivered during a Suspension Period or a
Suspension Period begins within fifteen (15) Business Days after the delivery of such Notice and
Questionnaire, the Company shall so inform the Holder delivering such Notice and Questionnaire and
shall take the actions set forth in clauses (i), (ii) and (iii) above within fifteen (15) Business
Days after the expiration of the Suspension Period in accordance with Section 4(b); provided,
further, that, if the Company is required by law to file a post-effective amendment to add a
Holder, the Company shall not be required to file more than one post-effective amendment to the
Shelf Registration Statement for all Holders pursuant to this Section 2(e) during any three-month
period. Notwithstanding anything contained herein to the contrary, the Company shall be under no
obligation to name any Holder that is not a Notice Holder as a selling securityholder in any
Registration Statement or related Prospectus.




     3. Additional Amounts.




     (a) If:




     (i) the Shelf Registration Statement is not filed with the Commission prior
to or on the Shelf Filing Deadline;




     (ii) the Shelf Registration Statement has not been declared effective by the
Commission prior to or on the Effectiveness Target Date;




     (iii) the Company has failed to perform its obligations set forth in Section
2(e) within the time period required therein;




     (iv) any post-effective amendment to a Shelf Registration Statement filed
pursuant to Section 2(e)(i) has not become effective under the Securities Act on
or prior to the Amendment Effectiveness Deadline Date;




     (v) except as provided in Section 4(b)(i) hereof or as a result of the
requirement to file a post-effective amendment to add selling securityholders
pursuant to Section 2(e), the Shelf Registration Statement is filed and declared
effective but, during the Effectiveness Period, shall thereafter cease to be
effective or fail to be usable for its intended purpose without being succeeded
within ten (10) Business Days (or if a Suspension Period is then in effect, the
tenth (10th) Business Day following the expiration of



 









 




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such Suspension Period) by a post-effective amendment to the Shelf
Registration Statement, a supplement to the Prospectus or a report filed with the
Commission pursuant to Section 13(a), 13(c), 14 or 15(d) of the Exchange Act that
cures such failure and, in the case of a post-effective amendment, is itself
immediately declared effective; or




     (vi) (A) if applicable, the Company does not terminate any Suspension Period
by the 45th day pursuant to Section 4(b)(i) hereof; or (B) the
Suspension Periods exceed an aggregate of 90 days in any 360-day period;



(each such event referred to in foregoing clauses (i) through (vi), a “Registration Default”),
occurs, the Company hereby agrees to pay cash interest (“Additional Amounts”) with respect to the
Transfer Restricted Securities from and including the day following the Registration Default to but
excluding the earlier of (1) the day on which the Registration Default has been cured or (2) the
date the Shelf Registration Statement is no longer required to be kept effective, as set forth
below:





     (A) in respect of the Notes, other than in the case of a
Registration Default relating to a failure to file or have an effective
Shelf Registration Statement with respect to shares of Common Stock
issuable upon conversion of the Notes that are Transfer Restricted
Securities, the Company agrees to pay interest to each holder of Notes,
accruing at a rate of (x) 0.25% per annum of the aggregate principal
amount of the Notes to and including the 90th day following
such Registration Default, and (y) 0.50% per annum of the aggregate
principal amount of the Notes from and after the 91st day
following such Registration Default; provided that in no event shall
Additional Amounts accrue at a rate per year exceeding 0.50% of the
aggregate principal amount of the Notes; and




     (B) in respect of the Notes that are Transfer Restricted Securities
submitted for conversion into Common Stock during the existence of a
Registration Default with respect to the Common Stock, the holder will
not be entitled to receive any Additional Amounts with respect to such
Common Stock but (x) will be entitled to a conversion rate adjustment in
accordance with the terms of the Notes as set forth in the Indenture and
(y) will receive from the Company on the settlement date with respect to
such conversion, accrued and unpaid Additional Amounts to the holders of
such Notes calculated in accordance with



 









 




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paragraph (A) to the Conversion Date (as defined in the Indenture)
relating to such settlement date; and




     (C) in respect of Common Stock issued upon conversion of Notes,
each holder of such Common Stock will not be entitled to any Additional
Amounts if the Registration Default with respect to such Common Stock
occurs after the holder has converted the Notes into Common Stock.



          In no event shall Additional Amounts accrue on the Notes solely as a result of a Registration
Default with respect to the Common Stock.




     (b) All accrued Additional Amounts shall be paid in arrears to Record Holders by the
Company on each Additional Amounts Payment Date. Upon the cure of all Registration
Defaults relating to any particular Note, the accrual of Additional Amounts with respect
to such Note will cease.



     All obligations of the Company set forth in this Section 3 that are outstanding with respect
to any Transfer Restricted Security at the time such security ceases to be a Transfer Restricted
Security shall survive until such time as all such obligations with respect to such Transfer
Restricted Security shall have been satisfied in full.



     The Additional Amounts set forth above shall be the exclusive monetary remedy available to the
Holders of Transfer Restricted Securities for each Registration Default.



     4. Registration Procedures.




     (a) In connection with the Shelf Registration Statement, the Company shall comply
with all the provisions of Section 4(b) hereof and shall use its reasonable best efforts
to effect such registration to permit the sale of the Transfer Restricted Securities, and
pursuant thereto, shall as expeditiously as possible but no later than the Shelf Filing
Deadline prepare and file with the Commission a Shelf Registration Statement relating to
the registration on any appropriate form under the Securities Act.




     (b) In connection with the Shelf Registration Statement and any Prospectus required
by this Agreement to permit the sale or resale of Transfer Restricted Securities, the
Company shall:




     (i) Subject to any notice by the Company of a Suspension Period, use its
reasonable best efforts to keep the Shelf Registration Statement continuously
effective during the Effectiveness Period; upon the occurrence of any event that
would



 









 





10





cause the Shelf Registration Statement or the Prospectus contained therein
(A) to contain a material misstatement or omission or (B) not to be effective and
usable for resale of Transfer Restricted Securities during the Effectiveness
Period, the Company shall file promptly an appropriate amendment to the Shelf
Registration Statement, a supplement to the Prospectus or a report filed with the
Commission pursuant to Section 13(a), 13(c), 14 or 15(d) of the Exchange Act, in
the case of clause (A), correcting any such misstatement or omission, and, in the
case of either clause (A) or (B), use its reasonable best efforts to cause such
amendment to be declared effective and the Shelf Registration Statement and the
related Prospectus to become usable for their intended purposes as soon as
practicable thereafter. Notwithstanding the foregoing, the Company may suspend
the use of the Shelf Registration Statement by written notice to the Holders for
a period not to exceed an aggregate of 45 days in any 90-day period (each such
period, a “Suspension Period”) if:




     (A) an event occurs and is continuing as a result of which the
Shelf Registration Statement, the Prospectus, any amendment or
supplement thereto, or any document incorporated by reference therein
would, in the Company’s judgment, contain 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




     (B) the occurrence or existence of any pending corporate
development that in the reasonable discretion of the Company, makes it
appropriate to suspend the availability of the Shelf Registration
Statement;




provided that Suspension Periods shall not exceed an aggregate of 90 days in any
360-day period. The Company shall not be required to specify in the written
notice to the Holders the nature of the event giving rise to the Suspension
Period. Holders hereby agree to hold any communications in response to a notice
of a proposed business transaction in confidence.




     (ii) Prepare and file with the Commission such amendments and post-effective
amendments to the Shelf Registration Statement as may be necessary to keep the
Shelf Registration Statement effective during the Effectiveness Period; cause the
Prospectus to be supplemented by any required Prospectus supplement, and as so
supplemented to be filed pursuant to Rule 424 under the Securities Act, and to
comply fully with the applicable provisions of Rules 424 and 430A under the
Securities Act in a timely manner; and comply with the provisions



 









 





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of the Securities Act with respect to the disposition of all Transfer
Restricted Securities covered by the Shelf Registration Statement during the
applicable period in accordance with the intended method or methods of
distribution by the sellers thereof set forth in the Shelf Registration Statement
or supplement to the Prospectus.




     (iii) Advise the selling Holders promptly and, if requested by such selling
Holders, to confirm such advice in writing, except as provided in clause (D)
below:




     (A) when the Prospectus or any Prospectus supplement or
post-effective amendment has been filed, and, with respect to the Shelf
Registration Statement or any post-effective amendment thereto, when the
same has become effective,




     (B) of any request by the Commission for amendments to the Shelf
Registration Statement or amendments or supplements to the Prospectus or
for additional information relating thereto,




     (C) of the issuance by the Commission of any stop order suspending
the effectiveness of the Shelf Registration Statement under the
Securities Act or of the suspension by any state securities commission
of the qualification of the Transfer Restricted Securities for offering
or sale in any jurisdiction, or the initiation of any proceeding for any
of the preceding purposes, or




     (D) of the existence of any fact or the happening of any event,
during the Effectiveness Period, that makes any statement of a material
fact made in the Shelf Registration Statement, the Prospectus, any
amendment or supplement thereto, or any document incorporated by
reference therein untrue, or that requires the making of any additions
to or changes in the Shelf Registration Statement or the Prospectus in
order to make the statements therein not misleading.




If at any time the Commission shall issue any stop order suspending the
effectiveness of the Shelf Registration Statement, or any state securities
commission or other regulatory authority shall issue an order suspending the
qualification or exemption from qualification of the Transfer Restricted
Securities under state securities or Blue Sky laws, the Company shall use its
reasonable best efforts to obtain the withdrawal or lifting of such order at the
earliest possible time and will provide to each Holder who is



 









 





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named in the Shelf Registration Statement prompt notice of the withdrawal of any
such order.




     (iv) Make available at reasonable times for inspection by one or more
representatives of the selling Holders, designated in writing by a Majority of
Holders whose Transfer Restricted Securities are included in the Shelf
Registration Statement, and any attorney or accountant retained by such selling
Holders, all financial and other records, pertinent corporate documents and
properties of the Company as shall be reasonably necessary to enable them to
conduct a reasonable investigation within the meaning of Section 11 of the
Securities Act, and cause the Company’s officers, directors, managers and
employees to supply all information reasonably requested by any such
representative or representatives of the selling Holders, attorney or accountant
in connection therewith; provided, however, that the Company shall have no
obligation to deliver information to any selling Holder or representative
pursuant to this Section 4(b)(iv) unless such selling Holder or representative
shall have executed and delivered a confidentiality agreement in a form
acceptable to the Company relating to such information.




     (v) If requested by any selling Holders, promptly incorporate in the Shelf
Registration Statement or Prospectus, pursuant to a supplement or post-effective
amendment, if necessary, such information as such selling Holders may reasonably
request to have included therein, including, without limitation, information
relating to the “Plan of Distribution” of the Transfer Restricted Securities.




     (vi) Furnish to each selling Holder upon their request, without charge, at
least one copy of the Shelf Registration Statement, as first filed with the
Commission, and of each amendment thereto (and any documents incorporated by
reference therein or exhibits thereto (or exhibits incorporated in such exhibits
by reference) as such selling Holder may request).




     (vii) Deliver to each selling Holder, without charge, as many copies of the
Prospectus (including each preliminary Prospectus) and any amendment or
supplement thereto as such selling Holder reasonably may request; subject to any
notice by the Company of a Suspension Period, the Company hereby consents to the
use of the Prospectus and any amendment or supplement thereto by each of the
selling Holders in connection with the offering and the sale of the Transfer
Restricted Securities covered by the Prospectus or any amendment or supplement
thereto.



 









 





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     (viii) Before any public offering of Transfer Restricted Securities,
cooperate with the selling Holders and their counsel in connection with the
registration and qualification of the Transfer Restricted Securities under the
securities or Blue Sky laws of such jurisdictions in the United States as the
selling Holders may reasonably request and do any and all other acts or things
necessary or advisable to enable the disposition in such jurisdictions of the
Transfer Restricted Securities covered by the Shelf Registration Statement;
provided, however, that the Company shall not be required (A) to register or
qualify as a foreign corporation or a dealer of securities where it is not now so
qualified or to take any action that would subject it to the service of process
in any jurisdiction where it is not now so subject or (B) to subject itself to
general or unlimited service of process or to taxation in any such jurisdiction
if they are not now so subject.




     (ix) Unless the Transfer Restricted Securities shall be in book-entry only
form, cooperate with the selling Holders to facilitate the timely preparation and
delivery of certificates representing Transfer Restricted Securities to be sold
and not bearing any restrictive legends (unless required by applicable securities
laws); and enable such Transfer Restricted Securities to be in such denominations
and registered in such names as the Holders may request at least two Business
Days before any sale of Transfer Restricted Securities.




     (x) Subject to Section 4(b)(i) hereof, if any fact or event contemplated by
Section 4(b)(iii)(D) hereof shall exist or have occurred, use its reasonable best
efforts to prepare a supplement or post-effective amendment to the Shelf
Registration Statement or related Prospectus or any document incorporated therein
by reference or file any other required document so that, as thereafter delivered
to the purchasers of Transfer Restricted Securities, the Prospectus will not
contain an untrue statement of a material fact or omit to state any material fact
required to be stated therein or necessary to make the statements therein, in
light of the circumstances in which they are made, not misleading.




     (xi) Provide CUSIP numbers for all Transfer Restricted Securities not later
than the effective date of the Shelf Registration Statement and provide the
Trustee under the Indenture with certificates for the Notes that are in a form
eligible for deposit with The Depository Trust Company.




     (xii) Cooperate and assist in any filings required to be made with the NASD
and in the performance of any due diligence



 









 





14





investigation by any underwriter that is required to be retained in
accordance with the rules and regulations of the NASD.




     (xiii) Otherwise use its reasonable best efforts to comply with all
applicable rules and regulations of the Commission and all reporting requirements
under the Exchange Act.




     (xiv) Cause the Indenture to be qualified under the TIA not later than the
effective date of the Shelf Registration Statement required by this Agreement,
and, in connection therewith, cooperate with the Trustee and the holders of Notes
to effect such changes to the Indenture as may be required for such Indenture to
be so qualified in accordance with the terms of the TIA; and execute and use its
reasonable best efforts to cause the Trustee thereunder to execute all documents
that may be required to effect such changes and all other forms and documents
required to be filed with the Commission to enable such Indenture to be so
qualified in a timely manner.




     (xv) Cause all Common Stock covered by the Shelf Registration Statement to
be listed or quoted, as the case may be, on each securities exchange or automated
quotation system on which Common Stock is then listed or quoted.




     (xvi) Provide to each Holder upon written request each document filed with
the Commission pursuant to the requirements of Section 13 and Section 15 of the
Exchange Act after the effective date of the Shelf Registration Statement, unless
such document is available through the Commission’s EDGAR system.




     (c) Each Holder agrees by acquisition of a Transfer Restricted Security that, upon
receipt of any notice (a “Suspension Notice”) from the Company of a Suspension Period,
such Holder will forthwith discontinue disposition of Transfer Restricted Securities
pursuant to the Shelf Registration Statement until:




     (i) such Holder has received copies of the supplemented or amended
Prospectus contemplated by Section 4(b)(xi) hereof; or




     (ii) such Holder is advised in writing by the Company that the use of the
Prospectus may be resumed, and has received copies of any additional or
supplemental filings that are incorporated by reference in the Prospectus.




If so directed by the Company, each Holder will deliver to the Company (at the Company’s
expense) all copies, other than permanent file copies then in such Holder’s possession, of
the Prospectus covering such Transfer



 









 





15





Restricted Securities that was current at the time of receipt of such notice of
suspension.




     (d) Each Holder agrees by acquisition of the Transfer Restricted Securities, that no
Holder shall be entitled to sell any of such Transfer Restricted Securities pursuant to a
Shelf Registration Statement, or to receive a Prospectus relating thereto, unless such
Holder has furnished the Company with a Notice and Questionnaire as required pursuant to
Section 2(e) hereof (including the information required to be included in such Notice and
Questionnaire) and the information set forth in the next sentence. Each Notice Holder
agrees promptly to furnish to the Company all information required to be disclosed in
order to make the information previously furnished to the Company by such Notice Holder
not misleading and any other information regarding such Notice Holder and the distribution
of such Transfer Restricted Securities as the Company may from time to time reasonably
request in writing. Any sale of any Transfer Restricted Securities by any Holder shall
constitute a representation and warranty by such Holder that the information relating to
such Holder and its plan of distribution is as set forth in the Prospectus delivered by
such Holder in connection with such disposition, that such Prospectus does not as of the
time of such sale contain any untrue statement of a material fact relating to or provided
by such Holder or its plan of distribution and that such Prospectus does not as of the
time of such sale omit to state any material fact relating to or provided by such Holder
or its plan of distribution necessary to make the statements in such Prospectus, in the
light of the circumstances under which they were made not misleading.



     5. Registration Expenses.




     All expenses incident to the Company’s performance of or compliance with this
Agreement shall be borne by the Company regardless of whether a Shelf Registration
Statement becomes effective, including, without limitation:




     (i) all registration and filing fees and expenses (including filings made
with the NASD);




     (ii) all fees and expenses of compliance with federal securities and state
Blue Sky or securities laws;




     (iii) all expenses of printing (including printing of Prospectuses and
certificates for the Common Stock to be issued upon conversion of the Notes) and
the Company’s expenses for messenger and delivery services and telephone;




     (iv) all fees and disbursements of counsel to the Company;



 









 





16





     (v) all application and filing fees in connection with listing (or
authorizing for quotation) the Common Stock on a national securities exchange or
automated quotation system pursuant to the requirements hereof; and




     (vi) all fees and disbursements of independent certified public accountants
of the Company.



     The Company shall bear its internal expenses (including, without limitation, all salaries and
expenses of its officers and employees performing legal, accounting or other duties), the expenses
of any annual audit and the fees and expenses of any Person, including special experts, retained by
the Company.



     6. Indemnification And Contribution.




     (a) The Company agrees to indemnify and hold harmless each Holder (including the
Initial Purchasers), its directors, officers, and employees and each person, if any, who
controls any such Holder within the meaning of the Securities Act or the Exchange Act
(each, an “Indemnified Holder”), against any loss, claim, damage, liability or expense,
joint or several, or any action in respect thereof (including, but not limited to, any
loss, claim, damage, liability or action relating to resales of the Transfer Restricted
Securities), to which such Indemnified Holder may become subject, insofar as any such
loss, claim, damage, liability or action arises out of, or is based upon:




     (i) any untrue statement or alleged untrue statement of a material fact
contained in (A) the Shelf Registration Statement as originally filed or in any
amendment thereof, in any Prospectus, or in any amendment or supplement thereto
or (B) any blue sky application or other document or any amendment or supplement
thereto prepared or executed by the Company (or based upon written information
furnished by or on behalf of the Company expressly for use in such blue sky
application or other document or amendment on supplement) filed in any
jurisdiction specifically for the purpose of qualifying any or all of the
Transfer Restricted Securities under the securities law of any state or other
jurisdiction (such application or document being hereinafter called a “Blue Sky
Application”); or




     (ii) the omission or alleged omission to state therein any material fact
required to be stated therein or necessary to make the statements therein, in the
light of the circumstances under which they were made, not misleading,




and agrees to reimburse each Indemnified Holder promptly upon demand for any legal or
other expenses reasonably incurred by such Indemnified



 









 





17





Holder in connection with investigating, defending, settling, compromising or paying any
such loss, claim, damage, liability, expense or action; provided, however, that the
Company shall not be liable in any such case to the extent that any such loss, claim,
damage, liability or expense arises out of, or is based upon, any untrue statement or
alleged untrue statement or omission or alleged omission made in reliance upon and in
conformity with written information furnished to the Company by or on behalf of such
Holder (or its related Indemnified Holder) specifically for use therein. The foregoing
indemnity agreement is in addition to any liability which the Company may otherwise have.




     (b) Each Holder, severally and not jointly, agrees to indemnify and hold harmless the
Company, its directors, officers and employees and each person, if any, who controls the
Company within the meaning of the Securities Act or the Exchange Act to the same extent as
the foregoing indemnity from the Company to each such Holder, but only with reference to
written information relating to such Holder furnished to the Company by or on behalf of
such Holder specifically for inclusion in the documents referred to in the foregoing
indemnity. This indemnity agreement set forth in this Section 6(b) shall be in addition
to any liabilities which any such Holder may otherwise have. In no event shall any
Holder, its directors, officers or any person who controls such Holder be liable or
responsible for any amount in excess of the amount by which the total amount received by
such Holder with respect to its sale of Transfer Restricted Securities pursuant to a Shelf
Registration Statement exceeds (i) the amount paid by such Holder for such Transfer
Restricted Securities and (ii) the amount of any damages that such Holder, its directors,
officers or any person who controls such Holder has otherwise been required to pay by
reason of such untrue or alleged untrue statement or omission or alleged omission.



     (c) Promptly after receipt by an indemnified party under this Section 6 of notice of
any claim or the commencement of any action, the indemnified party shall, if a claim in
respect thereof is to be made against the indemnifying party under this Section 6, notify
the indemnifying party in writing of the claim or the commencement of that action;
provided, however, that the failure to notify the indemnifying party shall not relieve it
from any liability which it may have under this Section 6 except to the extent it has been
materially prejudiced by such failure and, provided, further, that the failure to notify
the indemnifying party shall not relieve it from any liability which it may have to an
indemnified party otherwise than under this Section 6. If any such claim or action shall
be brought against an indemnified party, and it shall notify the indemnifying party
thereof, the indemnifying party shall be entitled to participate therein and, to the
extent that it wishes, jointly with any other similarly notified indemnifying party, to
assume the defense thereof with counsel satisfactory to the indemnified party. After
notice from the indemnifying



 









 





18





party to the indemnified party of its election to assume the defense of such claim or
action, the indemnifying party shall not be liable to the indemnified party under this
Section 6 for any legal or other expenses subsequently incurred by the indemnified party
in connection with the defense thereof other than reasonable costs of investigation;
provided, however, that the indemnified party shall have the right to employ a single
counsel to represent jointly the indemnified party and its officers, employees and
controlling persons who may be subject to liability arising out of any claim in respect of
which indemnity may be sought against the indemnifying party under this Section 6 if the
indemnified party seeking indemnification shall have been advised by legal counsel that
there may be one or more legal defenses available to such indemnified party and its
respective officers, employees and controlling persons that are different from or
additional to those available to the indemnifying party, and in that event, the fees and
expenses of such separate counsel shall be paid by the indemnifying party. No
indemnifying party shall, without the prior written consent of the indemnified parties
(which consent shall not be unreasonably withheld), settle or compromise or consent to the
entry of any judgment with respect to any pending or threatened claim, action, suit or
proceeding in respect of which indemnification or contribution may be sought hereunder
(whether or not the indemnified parties are actual or potential parties to such claim or
action), unless such settlement, compromise or consent includes an unconditional release
of each indemnified party from all liability arising out of such claim, action, suit or
proceeding.




     (d) The indemnifying party under this Section shall not be liable for any settlement
of any proceeding effected without its written consent, which shall not be withheld
unreasonably, but if settled with such consent or if there is a final judgment for the
plaintiff, the indemnifying party agrees to indemnify the indemnified party against any
loss, claim, damage, liability or expense by reason of such settlement or judgment.
Notwithstanding the foregoing sentence, if at any time an indemnified party shall have
requested an indemnifying party to reimburse the indemnified party for fees and expenses
of counsel as contemplated by Section 6(c) hereof, the indemnifying party agrees that it
shall be liable for any settlement of any proceeding effected without its written consent
if (i) such settlement is entered into more than 30 days after receipt by such
indemnifying party of the aforesaid request and (ii) such indemnifying party shall not
have reimbursed the indemnified party in accordance with such request prior to the date of
such settlement. No indemnifying party shall, without the prior written consent of the
indemnified party, effect any settlement, compromise or consent to the entry of judgment
in any pending or threatened action, suit or proceeding in respect of which any
indemnified party is or could have been a party and indemnity was or could have been
sought hereunder by such indemnified party, unless such



 









 





19





settlement, compromise or consent (x) includes an unconditional release of such
indemnified party from all liability on claims that are the subject matter of such action,
suit or proceeding and (y) does not include a statement as to or an admission of fault,
culpability or a failure to act by or on behalf of any indemnified party.




     (e) If the indemnification provided for in this Section 6 shall for any reason be
unavailable or insufficient to hold harmless an indemnified party under Section 6(a) or
6(b) in respect of any loss, claim, damage or liability (or action in respect thereof)
referred to therein, each indemnifying party shall, in lieu of indemnifying such
indemnified party, contribute to the amount paid or payable by such indemnified party as a
result of such loss, claim, damage or liability (or action in respect thereof):




     (i) in such proportion as is appropriate to reflect the relative benefits
received by the Company from the offering and sale of the Transfer Restricted
Securities on the one hand and a Holder with respect to the sale by such Holder
of the Transfer Restricted Securities on the other, or




     (ii) if the allocation provided by Section (6)(e)(i) is not permitted by
applicable law, in such proportion as is appropriate to reflect not only the
relative benefits referred to in Section 6(e)(i) but also the relative fault of
the Company on the one hand and the Holders on the other in connection with the
statements or omissions or alleged statements or alleged omissions that resulted
in such loss, claim, damage or liability (or action in respect thereof), as well
as any other relevant equitable considerations.




The relative benefits received by the Company on the one hand and a Holder on the other
with respect to such offering and such sale shall be deemed to be in the same proportion
as the total net proceeds from the offering of the Notes purchased under the Purchase
Agreement (before deducting expenses) received by the Company, on the one hand, bear to
the total proceeds received by such Holder with respect to its sale of Transfer Restricted
Securities on the other. The relative fault of the parties shall be determined by
reference to whether the untrue or alleged untrue statement of a material fact or the
omission or alleged omission to state a material fact relates to information supplied by
the Company on the one hand or the Holders on the other, the intent of the parties and
their relative knowledge, access to information and opportunity to correct or prevent such
statement or omission. The Company and each Holder agree that it would not be just and
equitable if the amount of contribution pursuant to this Section 6(e) were determined by
pro rata allocation or by any other method of allocation that does not take into account
the equitable considerations referred to in the first sentence of this Section 6(e).



 









 





20





The amount paid or payable by an indemnified party as a result of the loss, claim, damage
or liability, or action in respect thereof, referred to above in this Section 6 shall be
deemed to include, for purposes of this Section 6, any legal or other expenses reasonably
incurred by such indemnified party in connection with investigating or defending or
preparing to defend any such action or claim.




Notwithstanding the provisions of this Section 6, no Holder shall be required to
contribute any amount in excess of the amount by which the total price at which the
Transfer Restricted Securities purchased by it were resold exceeds the amount of any
damages which such Holder has otherwise been required to pay by reason of any untrue or
alleged untrue statement or omission or alleged omission. 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 was not guilty of such fraudulent
misrepresentation. The Holders’ obligations to contribute as provided in this Section
6(e) are several and not joint.




     (f) The provisions of this Section 6 shall remain in full force and effect,
regardless of any investigation made by or on behalf of any Holder or the Company or any
of the officers, directors or controlling persons referred to in Section 6 hereof, and
will survive the sale by a Holder of Transfer Restricted Securities.



     7. Rule 144A and Rule 144. The Company agrees with each Holder, for so long as any Transfer
Restricted Securities remain outstanding and during any period in which the Company (i) is not
subject to Section 13 or 15(d) of the Exchange Act, to make available, upon request of any Holder,
to such Holder or beneficial owner of Transfer Restricted Securities in connection with any sale
thereof and any prospective purchaser of such Transfer Restricted Securities designated by such
Holder or beneficial owner, the information required by Rule 144A(d)(4) under the Securities Act in
order to permit resales of such Transfer Restricted Securities pursuant to Rule 144A, and (ii) is
subject to Section 13 or 15 (d) of the Exchange Act, to make all filings required thereby in a
timely manner in order to permit resales of such Transfer Restricted Securities pursuant to Rule
144.



     8. No Participation In Underwritten Registrations. No Holder may participate in any
Underwritten Registration hereunder.



     9. Miscellaneous.




     (a) Remedies. The Company acknowledges and agrees that any failure by the Company to
comply with its obligations under Section 2 hereof may result in material irreparable
injury to the Initial Purchasers or the Holders for which there is no adequate remedy at
law, that it will not be possible to measure damages for such injuries precisely, and
that, in the



 









 





21





event of any such failure, the Initial Purchasers or any Holder may obtain such
relief as may be required to specifically enforce the Company’s obligations under Section
2 hereof. The Company further agrees to waive the defense in any action for specific
performance that a remedy at law would be adequate.




     (b) Actions Affecting Transfer Restricted Securities. The Company shall not,
directly or indirectly, take any action with respect to the Transfer Restricted Securities
as a class that would adversely affect the ability of the Holders of Transfer Restricted
Securities to include such Transfer Restricted Securities in a registration undertaken
pursuant to this Agreement.




     (c) No Inconsistent Agreements. The Company has not, as of the date hereof, entered
into, nor shall it, on or after the date hereof, enter into, any agreement with respect to
its securities that is inconsistent with the rights granted to the Holders in this
Agreement or otherwise conflicts with the provisions hereof. In addition, the Company
shall not grant to any of its securityholders (other than the Holders of Transfer
Restricted Securities in such capacity) the right to include any of its securities in the
Shelf Registration Statement provided for in this Agreement other than the Transfer
Restricted Securities.




     (d) Amendments and Waivers. This Agreement may not be amended, modified or
supplemented, and waivers or consents to or departures from the provisions hereof may not
be given, unless the Company has obtained the written consent of a Majority of Holders;
provided, however, that with respect to any matter that directly or indirectly adversely
affects the rights of any Initial Purchaser hereunder, the Company shall obtain the
written consent of each such Initial Purchaser against which such amendment,
qualification, supplement, waiver or consent is to be effective. Notwithstanding the
foregoing (except the foregoing proviso), a waiver or consent to depart from the
provisions hereof, with respect to a matter, which relates exclusively to the rights of
Holders whose securities are being sold pursuant to a Shelf Registration Statement and
does not directly or indirectly adversely affect the rights of other Holders, may be given
by the Majority of Holders, determined on the basis of Notes being sold rather than
registered under such Shelf Registration Statement.




     (e) Notices. All notices and other communications provided for or permitted
hereunder shall be made in writing by hand delivery, first class mail (registered or
certified, return receipt requested), telex, facsimile transmission, or air courier
guaranteeing overnight delivery:



 









 





22





     (i) if to a Holder, at the address set forth on the records of the registrar
under the Indenture or the transfer agent of the Common Stock, as the case may
be;




     (ii) if to the Company, at its address set forth in the Purchase Agreement,
with a copy to Fulbright & Jaworski L.L.P. at its address set forth in the
Purchase Agreement; and




     (iii) if to the Initial Purchasers, at the address of the Initial Purchasers
set forth in the Purchase Agreement.



     All such notices and communications shall be deemed to have been duly given: at the time
delivered by hand, if personally delivered; five Business Days after being deposited in the mail,
postage prepaid, if mailed; when answered back, if telexed; when receipt acknowledged, if
transmitted by facsimile; and on the next Business Day, if timely delivered to an air courier
guaranteeing overnight delivery.



     Any party hereto may change the address for receipt of communications by giving written notice
to the others.




     (f) Successors and Assigns. This Agreement shall inure to the benefit of and be
binding upon the successors and assigns of each of the parties, including without
limitation and without the need for an express assignment, subsequent Holders of Transfer
Restricted Securities. The Company hereby agrees to extend the benefit of this Agreement
to any Holder and any such Holder may specifically enforce the provisions of this
Agreement as if an original party hereto.




     (g) Counterparts. This Agreement may be executed in any number of counterparts and
by the parties hereto in separate counterparts, each of which when so executed shall be
deemed to be an original and all of which taken together shall constitute one and the same
agreement.




     (h) Notes Held by the Company or Its Affiliates. Whenever the consent or approval of
Holders of a specified percentage of Transfer Restricted Securities is required hereunder,
Transfer Restricted Securities held by the Company or its Affiliates (other than
subsequent Holders if such subsequent Holders are deemed to be Affiliates solely by reason
of their holding of such Notes) shall not be counted in determining whether such consent
or approval was given by the Holders of such required percentage.




     (i) Headings. The headings in this Agreement are for convenience of reference only
and shall not limit or otherwise affect the meaning hereof.



 









 





23





     (j) Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of New York.




     (k) Severability. If any one or more of the provisions contained herein, or
the application thereof in any circumstance, is held invalid, illegal or unenforceable,
the validity, legality and enforceability of any such provision in every other respect and
of the remaining provisions contained herein shall not be affected or impaired thereby, it
being intended that all of the rights and privileges of the parties shall be enforceable
to the fullest extent permitted by law.




     (l) Entire Agreement. This Agreement is intended by the parties as a final
expression of their agreement and intended to be a complete and exclusive statement of the
agreement and understanding of the parties hereto in respect of the subject matter
contained herein. There are no restrictions, promises, warranties or undertakings, other
than those set forth or referred to herein with respect to the registration rights granted
by the Company with respect to the Transfer Restricted Securities. This Agreement
supersedes all prior agreements and understandings between the parties with respect to
such subject matter.



 









 





     IN WITNESS WHEREOF, the parties have executed this Agreement as of the date first written
above.


	 	 	 	 	 
	 	CAL DIVE INTERNATIONAL, INC.

 	 
	 	By:  	/s/ A. Wade Pursell
 	 
	 	 	Name:  	A. Wade Pursell 	 
	 	 	Title:  	Senior Vice President and CFO 	 
	 



	 	 	 	 	 
	 	 BANC OF AMERICA SECURITIES LLC 

as representative of the Initial Purchasers



BANC OF AMERICA SECURITIES LLC

 	 
	 	 	 
	 	 	 
	 	 	 
	 



	 	 	 	 	 
	 	By:  	                     /s/ Robert Santangelo
 	 
	 	 	Name:  	Robert Santangelo 	 
	 	 	Title:  	Managing Director