exv4w2



 





Exhibit 4.2




REGISTRATION RIGHTS AGREEMENT




Dated as of                     , 2007




By and Among




SUPERIOR OFFSHORE INTERNATIONAL, INC.,




LOUIS E. SCHAEFER, JR.




and




SCHAEFER HOLDINGS, LP





 









 








REGISTRATION RIGHTS AGREEMENT




     This REGISTRATION RIGHTS AGREEMENT (the “Agreement”) is made and entered into as of
[                    ], 2007 by and among Superior Offshore International, Inc., a Delaware corporation (the
“Company”), Mr. Louis E. Schaefer, Jr. (“Mr. Schaefer”) and Schaefer Holdings, LP,
a Texas limited partnership.



RECITALS




     WHEREAS, the Company has issued [                    ] shares of Common Stock to Mr. Schaefer and
[                    ] shares of Common Stock to Schaefer Holdings, LP;



     NOW, THEREFORE, in consideration of the premises, and of the mutual covenants,
representations, warranties and agreements herein contained, the parties hereto agree as follows:



     1. Certain Definitions.



          As used in this Agreement, the following terms shall have the following respective meanings:



          (a) “Combined Maximum Number” has the meaning assigned thereto in Section 2(b)(iv) of
this Agreement.



          (b) “combined offering” has the meaning assigned thereto in Section 2(b)(i) of this
Agreement.



          (c) “Commission” means the Securities and Exchange Commission, or any other federal
agency at the time administering the Exchange Act or the Securities Act, whichever is the relevant
statute for the particular purpose.



          (d) “Common Stock” means the Common Stock, par value $0.01 per share, of the Company.



          (e) “Exchange Act” means the Securities Exchange Act of 1934, or any successor
thereto, as amended.



          (f) “Holder” means any party hereto (other than the Company) and each of its
respective successive successors and assigns who acquire Registrable Securities, directly or
indirectly, from any such party or from any successive successor or assign of any such party.



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



          (h) “Person” means a corporation, association, partnership, limited liability company,
organization, business, individual, government or political subdivision thereof or governmental
agency.



          (i) “Primary Maximum Number” has the meaning assigned thereto in Section 2(b)(ii) of
this Agreement.



 









 





          (j) “primary offering” has the meaning assigned thereto in Section 2(b)(i) of this
Agreement.



          (k) “Registrable Securities” means the Common Stock issued to the Holders and any
securities issued successively in exchange for or in respect of any of the Common Stock, whether
pursuant to a merger or consolidation, as a result of any successive stock split or
reclassification of, or stock dividend on, any of the foregoing or otherwise; provided,
however, that such shares of Common Stock or securities shall cease to be Registrable
Securities when (i) a registration statement registering such shares of Common Stock or securities,
as the case may be, under the Securities Act has been declared effective and such shares of Common
Stock or securities, as the case may be, have been sold or otherwise transferred by the Holder
thereof pursuant to such effective registration statement, (ii) such shares of Common Stock or
securities, as the case may be, are sold pursuant to Rule 144 (or any successor provision)
promulgated under the Securities Act under circumstances in which any legend borne by such shares
of Common Stock or securities relating to restrictions on transferability thereof, under the
Securities Act or otherwise, is removed by the Company, or (iii) such shares of Common Stock or
securities, as the case may be, are eligible for sale pursuant to subparagraph (k) of Rule 144
under the Securities Act.



          (l) “Registration Expenses” has the meaning assigned thereto in Section 4 of this
Agreement.



          (m) “Requesting Shareholder” has the meaning assigned thereto in Section 2(b)(iii) of
this Agreement.



          (n) “Rights” means any option, warrant, security, right or other instrument
convertible into or exchangeable or exercisable for, or otherwise giving the holder thereof the
right to acquire, directly or indirectly, any Common Stock or any other such option, warrant,
security, right or instrument, including any instrument the value of which is measured by reference
to the value of the Common Stock.



          (o) “secondary offering” has the meaning assigned thereto in Section 2(b)(i) of this
Agreement.



          (p) “Securities Act” means the Securities Act of 1933, or any successor thereto, as
amended.



          (q) “Selling Shareholder” has the meaning assigned thereto in Section 2(b)(i) of this
Agreement.



     2. Registration Under the Securities Act.



          (a) Demand Registrations.



               (i) At any time after the date that is 180 days after the consummation by the Company of an
initial public offering of its Common Stock pursuant to an effective registration statement under
the Securities Act, any Holder or Holders of Registrable Securities shall have the right to elect,
by giving written notice thereof to the Company, to require the



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Company to use its reasonable best efforts to register all or a portion of such Holder’s
Registrable Securities under the Securities Act; provided, however, that (A) if the
Company is not eligible to register the Registrable Securities on Form S-3 under the Securities
Act, the Company shall be obligated to register the Registrable Securities upon such election only
if the Registrable Securities to be registered, in the aggregate, constitute 10% or more of the
then-outstanding Registrable Securities, and (B) if the Company is eligible to register the
Registrable Securities on Form S-3 under the Securities Act, the Company shall be obligated to
register the Registrable Securities upon such election only if the Registrable Securities to be
registered, in the aggregate, have an anticipated offering price, net of underwriting discounts and
commissions, of more than $5,000,000. Promptly following such election, the Company shall (1) give
notice to each other Holder of Registrable Securities of such election, which notice shall set
forth the identity of the electing Holders, and (2) use its reasonable best efforts to cause to be
declared or become effective under the Securities Act a registration statement providing for the
registration of, and the sale in accordance with the intended method or methods of distribution
thereof by the electing Holders of, the Registrable Securities elected to be included therein by
the Holder. The Company shall be required to cause to become effective pursuant to this Section
2(a)(i) no more than three registration statements in the aggregate, and only one registration
statement within any period of six months, unless the Company is eligible to register the
Registrable Securities on Form S-3 under the Securities Act, in which case the Holders shall have
the unlimited right to require registrations on Form S-3; provided, however, that
the Company shall not be obligated to effect any such registration on Form S-3 if within the
12-month period preceding the date of such request for registration the Company already has
effected two registrations on Form S-3 (or applicable successor form) at the request of Holders.



               (ii) Notwithstanding the foregoing, the Company shall not be obligated to register Registrable
Securities upon any election pursuant to Section 2(a)(i) if fewer than 135 days have elapsed after
the effective date of a registration statement registering newly issued or treasury shares of the
Company’s Common Stock for purposes of a primary offering (as defined in Section 2(b)(i) hereof) on
a firm commitment underwritten basis, but only if and to the extent that (A) the underwriting
agreement entered into in connection with any such offering expressly prohibited registration of
Registrable Securities and (B) no period referred to in this sentence, and no postponement referred
to in Section 2(a)(iii) hereof, was in effect during the 12 months immediately preceding the
commencement of such 135-day period, unless any Holders having made elections during the previous
period or postponement, as the case may be, shall have had the opportunity to register their
Registrable Securities pursuant to an effective registration statement prior to the current such
period.



               (iii) If, following any election pursuant to Section 2(a)(i) hereof but prior to the filing of
a registration statement in respect of such election, (A) the Board of Directors of the Company, in
its reasonable judgment and in good faith, resolves that the filing of such registration statement
and the offering of Registrable Securities pursuant thereto would be seriously detrimental to the
Company, and (B) the Company furnishes to the Holders having made such election a certificate
signed by the President of the Company giving notice of such determination (which certificate shall
include a copy of such resolution), the Company shall, notwithstanding the provisions of Section
2(a)(i), be entitled to postpone for up to 135 days the filing of any registration statement
otherwise required to be prepared and filed by it pursuant to Section 2(a)(i) hereof;
provided, however, that no such postponement may be effected if any



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other postponement of a registration pursuant to this Section 2 was in effect during the 12
months immediately preceding the commencement of such postponement, unless any Holders having made
elections during the previous postponement shall have had the opportunity to register their
Registrable Securities pursuant to an effective registration statement prior to the current
postponement.



          (b) “Piggyback” Registrations.



               (i) If, at any time after the Company successfully consummates an initial public offering of
its Common Stock pursuant to an effective registration statement under the Securities Act, the
Company proposes to register any of its Common Stock or Rights or any other equity securities of
the Company under the Securities Act on a registration statement on Form S-1, Form S-2 or Form S-3
(or an equivalent general registration form then in effect) for purposes of an offering or sale by
or on behalf of the Company of its Common Stock or Rights or such equity securities for its own
account (a “primary offering”), or upon the request or for the account of any holder of its
Common Stock or Rights or any such equity securities (a “secondary offering”), or for
purposes of a combined primary and secondary offering (a “combined offering”), then each
such time the Company shall, at least 15 business days prior to the time when any such registration
statement is filed with the Commission, give prompt written notice to the Holders of its intention
to do so. Such notice shall specify, at a minimum, the number and class of shares, Rights or
equity securities so proposed to be registered, the proposed date of filing of such registration
statement, any proposed means of distribution of such shares, Rights or securities, any proposed
managing underwriter or underwriters of such shares, Rights or securities and a good faith estimate
by the Company of the proposed maximum offering price thereof, as such price is proposed to appear
on the facing page of such registration statement. Upon the written direction of any Holder or
Holders, given within 15 business days following the receipt by such Holder of any such written
notice (which direction shall specify the number of Registrable Securities intended to be disposed
of by such Holder and the intended method of distribution thereof), the Company shall include in
such registration statement any or all of the Registrable Securities then held by such Holder
requesting such registration (a “Selling Shareholder”) to the extent necessary to permit
the sale or other disposition of such Registrable Securities as such Holder has so directed the
Company to be so registered. Notwithstanding the foregoing, the Holders shall not have any right
under this Section 2(b) if the registration proposed to be effected by the Company relates solely
to (A) any registration on Form S-8 or any successor form then in effect or (B) any registration on
Form S-4 or any successor form then in effect.



               (ii) If the Company proposes to register shares of Common Stock, Rights or other equity
securities for purposes of an underwritten primary offering, and any managing underwriter shall
advise the Company and the Selling Shareholders in writing that, in such managing underwriter’s
opinion, the inclusion in the registration statement of some or all of the Registrable Securities
sought to be registered by such Selling Shareholders creates a risk that the price per unit the
Company will derive from such registration will be adversely affected or that the number of shares,
Rights or securities sought to be registered (including, in addition to the securities sought to be
registered by the Company, those securities sought to be registered by the Selling Shareholders) is
too large a number to be reasonably sold, then the Company will include in such registration
statement, such number of shares, Rights or securities as the



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Company and such Selling Shareholders are so advised can be sold in such offering without such
an effect (the “Primary Maximum Number”), as follows and in the following order of
priority: (A) first to the Company for such number of shares, Rights or securities as the Company
shall determine to sell for its own account, and (B) second, if and to the extent that the number
of shares, Rights or securities to be registered under clause (A) is less than the Primary Maximum
Number, Registrable Securities of each Selling Shareholder, pro rata, and without
any priority as between the Selling Shareholders, in proportion to the number sought to be
registered by each Selling Shareholder relative to the number sought to be registered by all the
Selling Shareholders, which in the aggregate, when added to the number of shares, Rights or
securities to be registered under clause (A) equals the Primary Maximum Number.



               (iii) If the Company proposes to register shares of Common Stock or other equity securities
for purposes of an underwritten secondary offering, upon the request or for the account of any
holder thereof pursuant to “demand” registration rights of such holder pursuant to Section 2(a)
(each a “Requesting Shareholder”), and any managing underwriter shall advise the Requesting
Shareholder or Shareholders and any Selling Shareholders in writing that, in such managing
underwriter’s opinion, the inclusion in the registration statement of some or all of the shares,
Rights or securities sought to be registered by the Requesting Shareholders and of the Registrable
Securities sought to be registered by the Selling Shareholders creates a risk that the price per
unit that such Requesting Shareholder or Shareholders and any Selling Shareholders will derive from
such registration will be adversely affected or that the number of shares, Rights or securities
sought to be registered (including any securities sought to be registered at the instance of the
Requesting Shareholder or Shareholders, any securities sought to be included in such Registration
Statement by the Selling Shareholders) is too large a number to be reasonably sold, the Company
will include in such registration statement such number of shares, Rights or securities as the
Requesting Shareholder or Shareholders and the Selling Shareholders are so advised can reasonably
be sold in such offering or can be sold without such an effect, and such number of shares, Rights
or securities shall be allocated pro rata, and without any priority as between the
Requesting Shareholder or Shareholders and the Selling Shareholders, in proportion to the number
sought to be registered by each Requesting Shareholder and each Selling Shareholder relative to the
number sought to be registered by all the Requesting Shareholders and Selling Shareholders;
provided, however, if the secondary offering is initiated upon the demand of a
Holder, the Company will include in the registration statement no less than 25% of the Registrable
Securities sought to be registered by Holders.



               (iv) If the Company proposes to register shares of Common Stock, Rights or other equity
securities for purposes of a combined offering, and any managing underwriter shall advise the
Company, the Requesting Shareholder or Shareholders and the Selling Shareholders in writing that,
in such managing underwriter’s opinion, the inclusion in the registration statement of some or all
of the Registrable Securities sought to be registered by the Selling Shareholders creates a risk
that the price per unit the Company and/or the Requesting Shareholders will derive from such
registration will be adversely affected, then the Company will include in such registration
statement such number of shares, Rights or securities as the Company, the Requesting Shareholder or
Shareholders and the Selling Shareholders are so advised can be sold in such offering without such
an effect (the “Combined Maximum Number”), as follows and in the following order of
priority: (A) first to the Company for such number of shares, Rights or securities as the Company
shall determine to sell for its own



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account, and (B) second, if and to the extent that the number of shares, Rights or securities
to be registered under clause (A) is less than the Combined Maximum Number, such number of
Registrable Securities of each Requesting Shareholder and each Selling Shareholder, pro
rata, and without any priority as between the Requesting Shareholder and Selling
Shareholders, in proportion to the number sought to be registered by each Requesting Shareholder
and each Selling Shareholder relative to the number sought to be registered by all the Requesting
Shareholders and Selling Shareholders, which, in the aggregate, when added to the number of shares,
Rights or securities to be registered under clause (A), equals the Combined Maximum Number;
provided, however, that if the combined offering is initiated upon the demand of a
Holder, the Company will include in the registration statement no less than 25% of the Registrable
Securities sought to be registered by Holders.



          (c) Withdrawals. Any Holder having notified or directed the Company to include any or
all of such Holder’s Registrable Securities in a registration statement pursuant to Section 2(a)(i)
or Section 2(b) hereof shall have the right to withdraw such notice or direction with respect to
any or all of the Registrable Securities designated for registration thereby by giving written
notice to such effect to the Company at least five business days prior to the anticipated effective
date of such registration statement. In the event of any such withdrawal, the Company shall amend
such registration statement and take such other actions as may be necessary so that such
Registrable Securities are not included in the applicable registration statement and not sold
pursuant thereto, and such Registrable Securities shall continue to be Registrable Securities in
accordance herewith. In the event of any such withdrawal with respect to a direction pursuant to
Section 2(a)(i), the Holders, at their option, may elect (i) to pay the Registration Expenses
incurred for such Holder as a result of such Holder’s inclusion of its Registrable Securities in a
registration statement pursuant to Section 2(a)(i) or 2(b) hereof, incurred in connection with the
registration statement so withdrawn prior to the date such written notice of withdrawal is given,
in which event such direction shall not be deemed to have utilized one of the two occasions on
which Holders may demand registration pursuant to Section 2(a)(i) not to pay such Registration
Expenses, in which event such direction shall be deemed, notwithstanding such withdrawal, to have
utilized one of such occasions. No such withdrawal shall affect the obligations of the Company
with respect to Registrable Securities not so withdrawn; provided, however, that in
the case of a registration pursuant to Section 2(a)(i) hereof, if such withdrawal shall reduce the
total market value of the Registrable Securities to be registered (or, if applicable, the proposed
maximum aggregate offering price thereof) below $5,000,000, then the Company shall, prior to the
filing or effectiveness, as appropriate, of such registration statement, give each Holder of
Registrable Securities so to be registered notice, referring to this Agreement, of such fact and,
within 10 business days following the giving of such notice, either the Company or the Holders of a
majority of such Registrable Securities may, by written notice to each Holder of such Registrable
Securities or the Company, as the case may be, elect that such registration statement not be filed
or, if it has theretofore been filed, that it be withdrawn. During such 10-business day period,
the Company shall not file such registration statement or, if it has theretofore been filed, shall
use its reasonable best efforts not to permit it to become effective. In the event of any election
contemplated by the proviso to the second preceding sentence, no registration statement
with respect to Registrable Securities shall thereafter be filed with the Commission without
compliance with all of the procedures set forth in Section 2(a)(i) hereof.



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     3. Registration Procedures.



          (a) In connection with the Company’s obligations with respect to any registration of
Registrable Securities pursuant to Section 2 hereof, the Company shall use its reasonable best
efforts to effect or cause such registration to permit the sale of the Registrable Securities by
the Holders thereof in accordance with the intended method or methods of distribution thereof
described in the registration statement relating thereto and to maintain the effectiveness of such
registration statement until the disposition of all of the Registrable Securities covered by such
registration statement is completed. In connection therewith, the Company shall, as soon as
reasonably possible:



               (i) prepare and file with the Commission a registration statement with respect to such
registration on any form which may be utilized by the Company and which shall permit the
disposition of the Registrable Securities in accordance with the intended method or methods
thereof, as specified in writing by the Holders thereof, and use its reasonable best efforts to
cause such registration statement to become effective as soon as reasonably possible thereafter;



               (ii) prepare and file with the Commission such amendments and supplements to such registration
statement and the prospectus included therein as may be necessary to effect and maintain the
effectiveness of such registration statement and as may be required by the applicable rules and
regulations of the Commission and the instructions applicable to the form of such registration
statement, and furnish to the underwriters, if any, of the Registrable Securities to be registered,
the sales or placement agent, if any, therefor, and a representative of the Holders of Registrable
Securities registered thereby copies of any such supplement or amendment prior to its being used
and/or filed with the Commission;



               (iii) comply with the provisions of the Securities Act applicable to issuers with respect to
the disposition of all of the Registrable Securities covered by such registration statement in
accordance with the intended methods of disposition by the Holders thereof set forth in such
registration statement until such disposition is completed;



               (iv) provide (A) any Holder registering more than 25% of the Registrable Securities to be
registered in such registration, (B) the underwriters (which term, for purposes of this Agreement,
shall include a person deemed to be an underwriter within the meaning of Section 2(11) of the
Securities Act), if any, of the Registrable Securities to be registered, (C) the sales or placement
agent, if any, therefor, (D) counsel for such underwriters or agent, and (E) one counsel for the
Holders thereof a reasonable opportunity to review and comment upon such registration statement,
each prospectus included therein or filed with the Commission, and each amendment or supplement
thereto prior to their filing;



               (v) for a reasonable period prior to the filing of such registration statement, and throughout
the period specified in Section 3(a)(iii) hereof, make available for inspection by the parties
referred to in Section 3(a)(iv), subject to execution and delivery of a confidentiality agreement
in form and substance reasonably satisfactory to the Company by the Holders seeking to exercise
such inspection rights, such financial and other information and books and records of the Company,
and cause the officers, directors, employees, counsel and



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independent certified public accountants of the Company to respond to such inquiries, as shall
be reasonably necessary to conduct a reasonable investigation within the meaning of Section 11 of
the Securities Act;



               (vi) promptly notify the selling Holders of Registrable Securities, the sales or placement
agent, if any, therefor and the managing underwriter or underwriters, if any, thereof and confirm
such advice in writing, (A) when such registration statement or the prospectus included therein or
any prospectus amendment or supplement or post-effective amendment has been filed, and, with
respect to such registration statement or any post-effective amendment, when the same has become
effective, (B) of any comments by the Commission and by the Blue Sky or securities commissioner or
regulator of any state with respect thereto or any request by the Commission for amendments or
supplements to such registration statement or prospectus or for additional information, (C) of the
issuance by the Commission of any stop order suspending the effectiveness of such registration
statement or the initiation or threatening of any proceedings for that purpose, (D) if at any time
the representations and warranties of the Company contemplated by Section 3(a)(xv) or Section 5
hereof cease to be true and correct in all material respects, (E) of the receipt by the Company of
any notification with respect to the suspension of the qualification of the Registrable Securities
for sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose,
or (F) at any time when a prospectus is required to be delivered under the Securities Act, that
such registration statement, prospectus, prospectus supplement or post-effective amendment, or any
document incorporated by reference in any of the foregoing, contains an untrue statement of a
material fact or omits to state any material fact required to be stated therein or necessary to
make the statements therein not misleading in light of the circumstances then existing;



               (vii) use its reasonable best efforts to obtain the withdrawal of any order suspending the
effectiveness of such registration statement or any post-effective amendment thereto at the
earliest practicable date;



               (viii) if requested by any managing underwriter or underwriters, any placement or sales agent
or any Holder, promptly incorporate in a prospectus supplement or post-effective amendment such
information as is required by the applicable rules and regulations of the Commission and as such
managing underwriter or underwriters, such agent or such Holder specifies should be included
therein relating to the terms of the sale of such Registrable Securities, including, without
limitation, information with respect to the number of Registrable Securities being sold by the
Holders or agent or to any underwriters, the name and description of the Holders, agent or
underwriter, the offering price of such Registrable Securities and any discount, commission or
other compensation payable in respect thereof, the purchase price being paid therefor by such
underwriters and with respect to any other terms of the offering of the Registrable Securities to
be sold by the Holders or agent or to such underwriters; and make all required filings of such
prospectus supplement or post-effective amendment promptly after notification of the matters to be
incorporated in such prospectus supplement or post effective amendment;



               (ix) furnish (A) to any Holder registering more than 25% of the Registrable Securities to be
registered in such registration, each placement or sales agent, if any, therefor, each underwriter,
if any, thereof and the respective counsel referred to in



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Section 3(a)(iv) an executed copy of such registration statement, each such amendment and supplement
thereto (in each case including all exhibits thereto and documents incorporated by reference
therein), and (B) to any Holder of Registrable Securities to be registered in such registration
such number of copies of such registration statement (excluding exhibits thereto and documents
incorporated by reference therein unless specifically so requested by any Holder, agent or
underwriter, as the case may be) and of the prospectus included in such registration statement
(including each preliminary prospectus), in conformity with the requirements of the Securities Act,
and such other documents, as any such Holder, agent, if any, and underwriter, if any, may
reasonably request in order to facilitate the offering and disposition of the Registrable
Securities owned by any such Holder, offered or sold by such agent or underwritten by such
underwriter and to permit each Holder, agent and underwriter to satisfy the prospectus delivery
requirements of the Securities Act; and the Company hereby consents to the use of such prospectus
(including such preliminary prospectus) and any amendment or supplement thereto by each Holder and
by any such agent and underwriter, in each case in the form most recently provided to such party by
the Company, in connection with the offering and sale of the Registrable Securities covered by the
prospectus (including such preliminary prospectus) or any supplement or amendment thereto;



               (x) use its reasonable best efforts to (A) register or qualify the Registrable Securities to
be included in such registration statement under such securities laws or blue sky laws of such
jurisdictions as any Holder and any placement or sales agent, if any, therefor and underwriter, if
any, thereof shall reasonably request, (B) keep such registrations or qualifications in effect and
comply with such laws so as to permit the continuance of offers, sales and dealings therein in such
jurisdictions for so long as may be necessary to enable the Holders, agents or underwriters to
complete the distribution of Securities pursuant to such registration statement and (C) take any
and all other actions as may be reasonably necessary or advisable to enable the Holders, agents, if
any, and underwriters, if any, to consummate the disposition in such jurisdictions of such
Registrable Securities; provided, however, that the Company shall not be required
for any such purpose to (I) qualify as a foreign corporation in any jurisdiction wherein it would
not otherwise be required to qualify but for the requirements of this Section 3(a)(x) or (II)
consent to general service of process in any such jurisdiction;



               (xi) use its reasonable best efforts to obtain the consent or approval of each governmental
agency or authority, whether federal, state or local, which may be required to effect such
registration or the offering or sale in connection therewith or to enable the Holders to offer, or
to consummate the disposition of, the Registrable Securities;



               (xii) cooperate with the Holders and the managing underwriters, if any, to facilitate the
timely preparation and delivery of certificates representing Registrable Securities to be sold,
which certificates shall be printed, lithographed or engraved, or produced by any combination of
such methods, on steel engraved borders if required or appropriate and which shall not bear any
restrictive legends other than as may be required for the Company to comply with the citizenship
requirements applicable to the extent that the Company engages in U.S. coastwise trade; and, in the
case of an underwritten offering, enable such Registrable Securities to be in such denominations
and registered in such names as the managing underwriters may request at least two business days
prior to any sale of the Registrable Securities;



9









 





               (xiii) provide a CUSIP number for all Registrable Securities, not later than the effective
date of such registration statement;



               (xiv) enter into one or more customary underwriting agreements, engagement letters, agency
agreements, “best efforts” underwriting agreements or similar agreements, as appropriate, and take
such other actions in connection therewith as the Holders shall reasonably request in order to
expedite or facilitate the disposition of the Registrable Securities registered;



               (xv) whether or not an agreement of the type referred to in Section (3)(a)(xiv) hereof is
entered into and whether or not any portion of the offering contemplated by such registration
statement is an underwritten offering or is made through a placement or sales agent or any other
entity, (A) make such representations and warranties to the Holders and the placement or sales
agent, if any, therefor and the underwriters, if any, thereof in form, substance and scope as are
customarily made in connection with an offering of common stock or other equity securities pursuant
to any appropriate agreement and/or to a registration statement filed on the form applicable to
such registration; (B) use its reasonable best efforts to obtain an opinion of counsel to the
Company in customary form and covering such matters, of the type customarily covered by such an
opinion, as the managing underwriters, if any, and as the Holders may reasonably request, addressed
to the Holders and the placement or sales agent, if any, therefor and the underwriters, if any,
thereof, and dated the effective date of such registration statement (or if such registration
statement contemplates an underwritten offering of a part or all of the Registrable Securities,
dated the date of the closing under the underwriting agreement relating thereto); (C) to use its
reasonable best efforts to obtain a “comfort” letter or letters from the independent certified
public accountants of the Company addressed to the Holders and the placement or sales agent, if
any, therefor and the underwriters, if any, thereof, dated (I) the effective date of such
registration statement, (II) the effective date of any prospectus supplement, if any, to the
prospectus included in such registration statement or post-effective amendment to such registration
statement which includes unaudited or audited financial statements as of a date or for a period
subsequent to that of the latest such statements included in such prospectus and (III) dated the
date of the closing under the underwriting agreement relating thereto, such letter or letters to be
in customary form and covering such matters of the type customarily covered by letters of such
type; (D) deliver such documents and certificates, including officers’ certificates, as may be
reasonably requested by the Holders and the placement or sales agent, if any, therefor and the
managing underwriters, if any, thereof to evidence the accuracy of the representations and
warranties made pursuant to clause (A) above or those contained in Section 5(a) hereof and the
compliance with or satisfaction of any agreements or conditions contained in the underwriting
agreement or other agreement entered into by the Company; and (E) undertake such obligations
relating to expense reimbursement, indemnification and contribution as are provided in Section 6
hereof;



               (xvi) if (A) any broker-dealer registered under the Exchange Act shall underwrite any
Registrable Securities or participate as a member of an underwriting syndicate or selling group or
“assist in the distribution” (within the meaning of the Rules of Fair Practice and the By-Laws of
the NASD thereof, whether as a Holder of Registrable Securities or as an underwriter, a placement
or sales agent or a broker or dealer in respect thereof, or otherwise, or (B) more than 10% of the
net offering proceeds, not including underwriting compensation, of



10









 







such distribution is intended to be paid to any such broker-dealer or “associated or
affiliated persons” of such broker-dealer or “members of the immediate family of such persons”
(each within the meaning of such Rules), the Company shall take reasonable steps to assist such
broker-dealer in complying with the requirements of such Rules and By-Laws, including, without
limitation, by (I) if such Rules or By-Laws shall so require, engaging a “qualified independent
underwriter” (as defined in such Rules) to participate in the preparation of the registration
statement relating to such Registrable Securities, to exercise usual standards of due diligence in
respect thereto and, if any portion of the offering contemplated by such registration statement is
an underwritten offering or is made through a placement or sales agent, to recommend the price of
such Registrable Securities, (II) indemnifying any such qualified independent underwriter to the
extent of the indemnification of underwriters provided in Section 6 hereof, and (III) providing
such information to such broker-dealer as may be required in order for such broker-dealer to comply
with the requirements of the Rules of Fair Practice of the NASD;



               (xvii) comply with all applicable rules and regulations of the Commission, and make generally
available to its securityholders, as soon as practicable but in any event not later than eighteen
months after the effective date of such registration statement, an earnings statement of the
Company and its subsidiaries complying with Section 11(a) of the Securities Act (including, at the
option of the Company, Rule 158 thereunder); and



               (xviii) use its reasonable best efforts to list prior to the effective date of such
registration statement, subject to notice of issuance, the Registrable Securities covered by such
registration statement on any securities exchange on which the Common Stock is then listed or, if
the Common Stock is not then so listed, to have the Registrable Securities accepted for quotation
of trading on an interdealer quotation system then in effect; and



               (xix) use its reasonable best efforts to cooperate in good faith with the Holders and the
underwriters (including counsel for the Holders and underwriters) in connection with the foregoing
and to facilitate the offer and sale of the Registrable Securities.



          (b) If the Company would be required, pursuant to Section 3(a)(vi)(F) above, to notify the
Holders, the placement or sales agent, if any, therefor and the managing underwriters, if any,
thereof, the Company shall without delay prepare and furnish to the Holders, to each placement or
sales agent, if any, and to each underwriter, if any, a reasonable number of copies of a prospectus
supplemented or amended so that, as thereafter delivered to purchasers of Registrable Securities,
such prospectus shall not 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 in light of the circumstances then existing. The Holders agree that upon receipt of any
notice from the Company pursuant to Section 3(a)(vi)(F) hereof, they shall forthwith discontinue
the disposition of Registrable Securities pursuant to the registration statement applicable to such
Registrable Securities until they shall have received copies of such amended or supplemented
prospectus, and if so directed by the Company, the Holders shall deliver to the Company (at the
Company’s expense) all copies, other than permanent file copies, then in their possession of the
prospectus covering such Registrable Securities at the time of receipt of such notice.



11









 





          (c) The Company may require the Holders to furnish to the Company such information regarding
the Holders and their intended method of distribution of such Registrable Securities as the Company
may from time to time reasonably request in writing, but only to the extent that such information
is required in order to comply with the Securities Act. Each Holder agrees to notify the Company
as promptly as practicable of any inaccuracy or change in information previously furnished by such
Holder to the Company or of the occurrence of any event in either case as a result of which any
prospectus relating to such registration contains or would contain an untrue statement of a
material fact regarding such Holder or such Holder’s intended method of distribution of such
Registrable Securities or omits or would omit to state any material fact regarding such Holder or
its intended method of distribution of such Registrable Securities required to be stated therein or
necessary to make the statements therein not misleading in light of the circumstances then
existing, and promptly to furnish to the Company any additional information required to correct and
update any previously furnished information or required so that such prospectus shall not contain,
with respect to such Holder or the distribution of such Registrable Securities, an untrue statement
of a material fact or omit to state a material fact required to be stated therein or necessary to
make the statements therein not misleading in light of the circumstances then existing.



          (d) From the time that the Company receives any notice pursuant to Section 2(a)(i) hereof or,
as the case may be, any direction from a Holder in connection with a primary offering, a secondary
offering or a combined offering pursuant to Section 2(b)(i) hereof until the earlier of (i) the
date 60 days after the effectiveness of the registration statement relating thereto or such shorter
period of time as may be recommended by the managing underwriters involved in such offering and
(ii) the date an election is made not to file a registration statement with the Commission pursuant
to Section 2(c) hereof, the Company will not offer, issue, sell, agree or commit to issue or sell,
grant any option for the purchase of, file with the Commission a registration statement relating to
any primary, secondary or combined offering of or solicit any offer to buy any Common Stock or any
Rights, other than (A) in connection with the Registrable Securities to be registered pursuant to
such notice or direction, (B) such Common Stock or other equity securities as were, at the time of
such notice or direction, to be included in such primary offering, secondary offering or combined
offering, (C) pursuant to an employee stock option, stock purchase plan, or similar benefit program
or agreement for the benefit of employees, officers or directors of, or consultants to, the Company
or (D) in connection with a reorganization, merger, exchange offer, acquisition, consolidation or
similar transaction.



     4. Registration Expenses.



          The Company agrees to bear and to pay or cause to be paid promptly upon request being made
therefor all expenses incident to the Company’s performance of or compliance with this Agreement,
including, without limitation, (a) all Commission and any NASD registration and filing fees and
expenses, (b) all fees and expenses in connection with the qualification of the Registrable
Securities for offering and sale under the State securities and blue sky laws, including reasonable
fees and disbursements of counsel for the placement or sales agent or underwriters in connection
with such qualifications, (c) all expenses relating to the preparation, printing, distribution and
reproduction of each registration statement required to be filed hereunder, each prospectus
included therein or prepared for distribution pursuant hereto, each amendment or supplement to the
foregoing, the certificates representing the Common Stock or



12









 







other equity securities to be sold and all other documents relating hereto, (d) messenger and
delivery expenses, (e) fees and expenses of any escrow agent or custodian, (f) internal expenses of
the Company (including, without limitation, all salaries and expenses of the Company’s officers and
employees performing legal or accounting duties), (g) fees, disbursements and expenses of counsel
and independent certified public accountants of the Company (including the expenses of any opinions
or “comfort” letters required by or incident to such performance and compliance), (h) fees,
disbursements and expenses (including fees and expenses of counsel) of any “qualified independent
underwriter” engaged pursuant to Section 3(a)(xvi) hereof, (i) fees, expenses and disbursements of
any other persons retained by the Company in connection with such registration, (j) the reasonable
fees and disbursement not to exceed $50,000 of a single special counsel to the Holders and (k) all
fees and expenses (including, without limitation, listing and qualification fees) in connection
with the listing or admission to quotation of the Registrable Securities as required by Section
3(a)(xviii) hereof (collectively, the “Registration Expenses”). To the extent that any
Registration Expenses are incurred, assumed or paid by the Holder or any placement or sales agent
therefor or underwriter thereof, the Company shall reimburse such person for the full amount of the
Registration Expenses so incurred, assumed or paid promptly after receipt of a request therefor.
Notwithstanding the foregoing, the Holders of Registrable Securities being registered each shall
pay their pro rata share (based on their proportion of the Registrable Securities being sold by
them) of all agency fees and commissions and all underwriting discounts and commissions
attributable to the sale of the Registrable Securities and the fees and disbursements of any
counsel or other advisors or experts retained by the Holder or Holders except as otherwise provided
in clause (j) of the first sentence of this Section 4.



     5. Representations and Warranties.



          The Company represents and warrants to, and agrees with, each Holder from time to time of
Registrable Securities that:



          (a) Each registration statement covering Registrable Securities and each prospectus (including
any preliminary prospectus) contained therein or furnished pursuant to Section 3(a)(ix) hereof and
any further amendments or supplements to any such registration statement or prospectus, when it
becomes effective or is filed with the Commission, as the case may be, and, in the case of an
underwritten offering of Registrable Securities, at the time of the closing under the underwriting
agreement relating thereto will conform in all material respects to the requirements of the
Securities Act and will not 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; and at all times subsequent to the effective date of such registration statement when a
prospectus would be required to be delivered under the Securities Act, other than from (i) such
time as a notice has been given to Holders of Registrable Securities pursuant to Section
3(a)(vi)(F) hereof until (ii) such time as the Company furnishes an amended or supplemented
prospectus pursuant to Section 3(b) hereof, each such registration statement, and each prospectus
contained therein or furnished pursuant to Section 3(a)(ix) hereof, as then amended or
supplemented, will conform in all material respects to the requirements of the Securities Act and
will not 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 in the light of the
circumstances then existing; provided, however, that this representation and
warranty shall not apply to any statements or omissions made in reliance upon



13









 







and in conformity with information furnished in writing to the Company by a Holder of
Registrable Securities expressly for use therein.



          (b) Any documents incorporated by reference in any prospectus referred to in Section 5(a)
hereof, when they become or became effective or are or were filed with the Commission, as the case
may be, as then amended or supplemented, will conform or conformed in all material respects to the
requirements of the Securities Act or the Exchange Act, as applicable, and none of such documents
will contain an untrue statement of a material fact or will omit to state a material fact required
to be stated therein or necessary to make the statements therein not misleading; provided,
however, that this representation and warranty shall not apply to any statements or
omissions made in reliance upon and in conformity with information furnished in writing to the
Company by a Holder of Registrable Securities expressly for use therein.



          (c) The compliance by the Company with all of the provisions of this Agreement and the
consummation of the transactions herein contemplated will not (i) conflict with or result in a
breach of any of the terms or provisions of, or constitute a default under, any indenture,
mortgage, deed of trust, loan agreement or other agreement or instrument to which the Company or
any subsidiary is a party or by which the Company or any subsidiary is bound or to which any of the
property or assets of the Company or any subsidiary is subject, or (ii) result in any violation of
the provisions of the Certificate of Incorporation or By-Laws of the Company or any statute or any
order, rule or regulation of any court or governmental agency or body having jurisdiction over the
Company or any subsidiary or any of their properties except, with respect to clause (i) or (ii),
for such conflicts, breaches, defaults and violations as, individually and in the aggregate, do not
have a material adverse effect on the business, financial condition, results of operations or
prospects of the Company and its subsidiaries and do not materially hinder or delay the exercise by
the Holders of their rights hereunder; and no consent, approval, authorization, order, registration
or qualification of or with any such court or governmental agency or body is required for the
consummation by the Company of the transactions contemplated by this Agreement, except the
registration under the Securities Act of the Registrable Securities and such consents, approvals,
authorizations, registrations or qualifications as may be required under State securities or blue
sky laws in connection with the offering and distribution of the Registrable Securities.



     6. Indemnification.



          (a) Indemnification by the Company. Upon the registration of any Registrable
Securities pursuant to Section 2 hereof, and in consideration of the agreements of the Holders
contained herein, the Company shall, and it hereby agrees to, indemnify and hold harmless each
Holder, and each person who participates as a placement or sales agent or as an underwriter in any
offering or sale of such Registrable Securities, against any losses, claims, damages or
liabilities, joint or several, to which any such Holder, agent or underwriter may become subject,
under the Securities Act or otherwise, insofar as such losses, claims, damages or liabilities (or
actions in respect thereof) arise out of or are based upon an untrue statement or alleged untrue
statement of a material fact contained in any registration statement under which such Registrable
Securities were registered under the Securities Act, or any preliminary or final prospectus
contained therein or furnished by the Company to any such Holder, agent or



14









 







underwriter, or any amendment or supplement thereto, or any document incorporated by reference
therein, or arise out of or are based upon the omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the statements therein not
misleading (in the case of the Registration Statement or any amendment thereto or any document
incorporated by reference therein) or necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading (in the case of any preliminary or final
prospectus or supplement thereto), and the Company shall, and it hereby agrees to, reimburse any
such Holder, agent and underwriter for any legal or other expenses reasonably incurred by them in
connection with investigating or defending any such action or claim; provided,
however, that the Company shall not be liable to any such person in any such case to the
extent that any such loss, claim, damage or liability arises out of or is based upon an untrue
statement or alleged untrue statement or omission or alleged omission made in such registration
statement, preliminary or final prospectus, amendment or supplement or incorporated document in
reliance upon and in conformity with written information furnished to the Company by such person
expressly for use therein; provided, further, that the Company shall not be liable
to (i) any underwriter or placement or sales agent under the indemnity agreement in this Section
6(a) with respect to any preliminary prospectus to the extent that any such loss, claim, damage or
liability of such underwriter or agent, respectively, results from the fact that such underwriter
or agent sold Registrable Securities to a person to whom there was not sent or given, at or prior
to the written confirmation of such sale, a copy of the related final prospectus if the Company has
previously furnished on a timely basis to such Holder, underwriter or agent, respectively,
sufficient copies thereof and such prospectus corrects the statement or omission, or alleged
statement or omission, out of which such loss, claim, damage or liability arises or (ii) any Holder
distributing securities directly (otherwise than in an underwritten offering) or through a
broker-dealer acting as placement agent for such Holder, with respect to any preliminary or final
prospectus to the extent that any such loss, claim, damage or liability of such Holder or
broker-dealer arises from the fact that such Holder or broker-dealer delivered such preliminary or
final prospectus after receipt of any notice from the Company pursuant to Section 3(a)(vi)(F)
hereof and the amended or supplemented prospectus furnished pursuant to Section 3(b) hereof
corrects the statement or omission, or alleged statement or omission, out of which such loss,
claim, damage or liability arises.



          (b) Indemnification by the Holder and any Agents and Underwriters. The Company may
require, as a condition to including any Registrable Securities in any registration statement filed
pursuant to Section 2 hereof and to entering into any underwriting agreement with respect thereto,
that the Company shall have received an undertaking from the Holder thereof and from each
underwriter named in any such underwriting agreement, severally and not jointly, to (i) indemnify
and hold harmless the Company, and all other Holders, if any, of Registrable Securities selling
under the same registration statement, against any losses, claims, damages or liabilities to which
the Company or such other Holders of Registrable Securities may become subject, under the
Securities Act or otherwise, insofar as such losses, claims, damages or liabilities (or actions in
respect thereof) arise out of or are based upon an untrue statement or alleged untrue statement of
a material fact contained in such registration statement, or any preliminary or final prospectus
contained therein or furnished by the Company to the Holders, agent or underwriter, or any
amendment or supplement thereto, or arise out of or are based upon the omission or alleged omission
to state therein a material fact required to be stated therein or necessary to make the statements
therein not misleading (in the case of the Registration



15









 







Statement or any amendment thereto or any incorporated document) or necessary to make the
statements therein, in the light of the circumstances under which they were made, not misleading
(in the case of any preliminary or final prospectus or supplement thereto), in each case to the
extent, but only to the extent, that such untrue statement or alleged untrue statement or omission
or alleged omission was made in reliance upon and in conformity with written information furnished
to the Company by the Holder or underwriter expressly for use therein, and (ii) reimburse the
Company for any legal or other expenses reasonably incurred by the Company in connection with
investigating or defending any such action or claim; provided, however, that no
Holder shall be required to undertake liability under this Section 6(b) for any amounts in excess
of the dollar amount of the net proceeds (after deducting any fees, discounts and commissions
applicable thereto) to be received by such Holder from the sale of its Registrable Securities
pursuant to such registration, as reduced by any damages or other amounts that such Holder was
otherwise required to pay by reason of such untrue or alleged untrue statement or omission or
alleged omission; provided, further, that the indemnity agreement contained in this
Section 6(b) shall not apply to amounts paid in settlement of any such loss, claim, damage,
liability or action if such settlement is effected without the consent of the Holder, which consent
shall not be unreasonably withheld.



          (c) Notices of Claims, Etc. Promptly after receipt by an indemnified party under
subsection (a) or (b) above of written notice of the commencement of any action, such indemnified
party shall, if a claim in respect thereof is to be made against an indemnifying party pursuant to
the indemnification provisions of or contemplated by this Section 6, notify such indemnifying party
in writing of the commencement of such action; but the omission so to notify the indemnifying party
shall not relieve it from any liability which it may have to any indemnified party except to the
extent the indemnifying party is materially prejudiced thereby. In case any such action shall be
brought against any indemnified party and it shall notify an indemnifying party of the commencement
thereof, such indemnifying party shall be entitled to participate therein and, to the extent that
it shall wish, jointly with any other indemnifying party similarly notified, to assume the defense
thereof, with counsel reasonably satisfactory to such indemnified party (who may be counsel to the
indemnifying party unless representation of both parties by the same counsel would be inappropriate
due to actual or potential conflicts of interest between them), and, after notice from the
indemnifying party to such indemnified party of its election so to assume the defense thereof, such
indemnifying party shall not be liable to such indemnified party for any legal expenses of other
counsel or any other expenses, in each case subsequently incurred by such indemnified party, in
connection with the defense thereof other than reasonable costs of investigation.



          (d) Contribution. Each party hereto agrees that, if for any reason the
indemnification provisions contemplated by Section 6(a) or Section 6(b) hereof are unavailable to
or insufficient to hold harmless an indemnified party in respect of any losses, claims, damages or
liabilities (or actions in respect thereof) referred to therein, then each indemnifying party shall
contribute to the amount paid or payable by such indemnified party as a result of such losses,
claims, damages or liabilities (or actions in respect thereof) in such proportion as is appropriate
to reflect the relative fault of the indemnifying party and the indemnified party in connection
with the statements or omissions which resulted in such losses, claims, damages or liabilities (or
actions in respect thereof), as well as any other relevant equitable considerations. The relative
fault of such indemnifying party and indemnified party shall be determined by reference to,



16









 







among other things, whether the untrue or alleged untrue statement of a material fact or
omission or alleged omission to state a material fact relates to information supplied by such
indemnifying party or by such indemnified party, and the parties’ relative intent, knowledge,
access to information and opportunity to correct or prevent such statement or omission. The
parties hereto agree that it would not be just and equitable if contribution pursuant to this
Section 6(d) were determined by pro rata allocation (even if the Holders or any agents or
underwriters or all of them were treated as one entity for such purpose) or by any other method of
allocation which does not take account of the equitable considerations referred to in this Section
6(d). The amount paid or payable by an indemnified party as a result of the losses, claims,
damages, or liabilities (or actions in respect thereof) referred to above shall be deemed to
include any legal or other fees or expenses reasonably incurred by such indemnified party in
connection with investigating or defending any such action or claim. Notwithstanding the
provisions of this Section 6(d), no Holder shall be required to contribute any amount in excess of
the amount by which the dollar amount of the net proceeds received by such Holder from the sale of
any Registrable Securities (after deducting any fees, discounts and commissions applicable thereto)
exceeds the amount of any damages which such Holder has otherwise been required to pay by reason of
such untrue or alleged untrue statement or omission or alleged omission, and no underwriter shall
be required to contribute any amount in excess of the amount by which the total price at which the
Registrable Securities underwritten by it and distributed to the public were offered to the public
exceeds the amount of any damages which such underwriter has otherwise been required to pay by
reason of such 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’ and any underwriter’s obligations in this Section 6(d) to
contribute shall be several in proportion to the number or amount of Registrable Securities sold or
underwritten, as the case may be, by them and not joint.



          (e) The obligations of the Company under this Section 6 shall be in addition to any liability
which the Company may otherwise have and shall extend, upon the same terms and conditions, to each
officer, director and partner of any Holder, agent or underwriter and each person, if any, who
controls any Holder, agent or underwriter within the meaning of the Securities Act; and the
obligations of the Holders and any underwriters contemplated by this Section 6 shall be in addition
to any liability which the Holders or any underwriter may otherwise have and shall extend, upon the
same terms and conditions, to each officer and director of the Company (including any person who,
with his consent, is named in any registration statement as about to become a director of the
Company) and to each person, if any, who controls the Company within the meaning of the Securities
Act.



     7. Underwritten Offerings.



          (a) Selection of Underwriters. If any of the Registrable Securities covered by any
registration statement filed pursuant to Section 2(a) hereof are to be sold pursuant to an
underwritten offering, the managing underwriter or underwriters thereof shall be designated: (i) in
the event of a registration pursuant to Section 2(a)(i) hereof, by the Holders requesting such
registration, provided, that, the underwriter or underwriters are also reasonably
acceptable to the Company, or (ii) in the event of a registration pursuant to Section 2(b) hereof,
by the Company.



17









 





          (b) Participation by Holders. Each Holder hereby agrees that it may not participate
in any underwritten offering hereunder unless it (i) agrees to sell its Registrable Securities on
the basis provided in any underwriting arrangements approved by the persons entitled hereunder to
approve such arrangements and (ii) completes and executes all questionnaires, powers of attorney,
indemnities, underwriting agreements and other documents reasonably required under the terms of
such underwriting arrangements.



     8. Rule 144.



          The Company covenants to and with each Holder of Registrable Securities that to the extent it
shall be required to do so under the Exchange Act, the Company shall timely file the reports
required to be filed by it under the Exchange Act or the Securities Act (including, but not limited
to, the reports under Section 13 and 15(d) of the Exchange Act referred to in subparagraph (c)(1)
of Rule 144 under the Securities Act) and the rules and regulations adopted by the Commission
thereunder, shall make and keep public information available (as those terms are understood and
defined in Rule 144 or any similar or analogous rule promulgated under the Securities Act) at all
times after the effective date of the first registration filed by the Company for an offering of
its securities to the general public, and shall take such further action as any Holder may
reasonably request, all to the extent required from time to time to enable the Holders to sell
Registrable Securities without registration under the Securities Act within the limitations of the
exemption provided by Rule 144 under the Securities Act, as such Rule may be amended from time to
time, or any similar rule or regulation hereafter adopted by the Commission. Upon the request of
any Holder of Registrable Securities, the Company shall deliver to such Holder a written statement
as to whether it has complied with such requirements; a copy of the most recent annual or quarterly
report of the Company; and such other reports and documents as a Holder may reasonably request in
availing itself of any rule or regulation of the Commission allowing it to sell any such
Registrable Securities without registration.



     9. Miscellaneous.



          (a) No Inconsistent Agreements. The Company covenants and agrees that it shall not
(i) hereafter grant registration rights with respect to any class of Common Stock or any other
securities which would be inconsistent with the terms contained in this Agreement or (ii) enter
into or become bound by, or permit any subsidiary of the Company to enter into or become bound by,
any indenture, mortgage, deed of trust, loan agreement or other agreement or instrument which would
prohibit, be violated by, conflict with or provide that a default would arise from, the compliance
by the Company with any of the provisions of this Agreement or the consummation of the transactions
herein contemplated, except for any such prohibitions, violations, conflicts or defaults as,
individually and in the aggregate, would not have a material adverse effect on the business,
financial condition, results of operations or prospects of the Company and its subsidiaries and
would not materially hinder or delay the exercise by the Holders of their rights hereunder. The
Company represents and warrants that it is not currently a party to any agreement with respect to
any of its equity or debt securities granting any registration rights to any person.



          (b) Specific Performance. The Company acknowledges that it would be impossible to
determine the amount of damages that would result from any breach by it of any of



18









 







the provisions of this Agreement and that the remedy at law for any breach, or threatened
breach, of any of such provisions would likely be inadequate and, accordingly, agrees that each
Holder shall, in addition to any other rights or remedies which it may have, be entitled to seek
such equitable and injunctive relief as may be available from any court of competent jurisdiction
to compel specific performance of, or restrain the Company from violating any of, such provisions.
In connection with any action or proceeding for injunctive relief, the Company hereby waives the
claim or defense that a remedy at law alone is adequate and agrees, to the maximum extent permitted
by law, to have each provision of this Agreement specifically enforced against it, without the
necessity of posting bond or other security against it.



          (c) Illegality. If any term or provision of this Agreement or any application thereof
shall be declared or held invalid, illegal or unenforceable, in whole or in part, whether generally
or in any particular jurisdiction, such provision shall be deemed amended to the extent, but only
to the extent, necessary to cure such invalidity, illegality or unenforceability, and the validity,
legality and enforceability of the remaining provisions, both generally and in every other
jurisdiction, shall not in any way be affected or impaired thereby.



          (d) Recovery of Litigation Costs. Except as otherwise expressly provided herein to
the contrary, in the event any dispute between the parties to this Agreement shall result in
litigation, arbitration or other proceeding, the prevailing party shall be entitled to recover from
the losing party all reasonable costs and expenses, including without limitation reasonable
attorneys’ fees and disbursements, incurred by the prevailing party in connection with such
litigation or other proceeding and any appeal thereof. Such costs, expenses, fees and
disbursements shall be included in and made a part of the judgment recovered by the prevailing
party, if any.



          (e) Notices. All notices, requests, claims, demands, waivers and other communications
hereunder shall be in writing and shall be deemed to have been duly given when delivered by hand,
when delivered personally or by courier, as follows: If to the Company, to it at 900 S. College
Road, Suite 301, Lafayette, Louisiana, 70503, Attention: Chief Executive Officer, and if to Mr.
Schaefer, to him at 2240 Marina Way, Kemah, Texas 77565, and if to Schaefer Holdings, LP, to it at
9302 Lambright Road, Houston, Texas 77075, Attention: R. Joshua Koch, Jr., or to such other address
or facsimile transmission number as any party may have furnished to the others in writing in
accordance herewith, except that notices of change of address shall be effective only upon receipt,
and, in any case, with a copy (which shall not constitute notice) to Bracewell & Giuliani LLP at
711 Louisiana Street, Suite 2300, Houston, Texas 77002-2770, Attention: William S. Anderson, Esq.,
facsimile number (713) 437-5370.



          (f) Parties in Interest. All the terms and provisions of this Agreement shall be
binding upon, shall inure to the benefit of and shall be enforceable by the parties hereto and
their respective successors and assigns, but, except as set forth in this Section 9(f), no such
term or provision is for the benefit of, or intended to create any obligations to, any other
persons. In the event that any transferee of a Holder shall acquire Registrable Securities, in any
manner, whether by gift, bequest, purchase, operation of law or otherwise, such transferee shall,
without any further writing or action of any kind, be deemed a party hereto for all purposes and
such Registrable Securities shall be held subject to all of the terms of this Agreement, and by
taking and holding such Registrable Securities, such transferee shall be entitled to receive the
benefits



19









 







of and be conclusively deemed to have agreed to be bound by and to perform all of the terms
and provisions of this Agreement. If the Company shall so request, any such successor, assign or
transferee shall agree in writing to acquire and hold the Registrable Securities subject to all of
the terms hereof. Any Holder effecting a transfer to a transferee that acquires any rights or
benefits under this Agreement as a result of such transfer shall, prior to or promptly after such
transfer is made, give written notice to the Company of such transfer, specifying the number of
Registrable Securities transferred and identifying the transferee.



          (g) Survival. The respective indemnities, agreements, representations, warranties and
each other provisions set forth in this Agreement or made pursuant hereto shall remain in full
force and effect regardless of any investigation (or statement as to the results thereof) made by
or on behalf of any Holder, any director, officer, partner or employee of any Holder, any agent or
underwriter or any director, officer, partner or employee thereof, or any controlling person of any
of the foregoing, and the transfer and registration of Registrable Securities by any Holder.



          (h) LAW GOVERNING. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE
WITH THE LAWS OF THE STATE OF TEXAS.



          (i) Headings. The descriptive headings of the several Sections and paragraphs of this
Agreement are inserted for convenience only, do not constitute a part of this Agreement and shall
not affect in any way the meaning or interpretation of this Agreement.



          (j) Entire Agreement; Amendments. This Agreement and the other writings referred to
herein or delivered pursuant hereto which form a part hereof contain the entire understanding of
the parties with respect to its subject matter. This Agreement supersedes all prior agreements and
understandings between the parties with respect to its subject matter. This Agreement may be
amended and the observance of any term of this Agreement may be waived (either generally or in a
particular instance and either retroactively or prospectively) only by a written instrument duly
executed by the Company and the Holders of more than 66 2/3% of the Registrable Securities at the
time outstanding. Each Holder of any Registrable Securities at the time or thereafter outstanding
shall be bound by any amendment or waiver effected pursuant to this Section 9(j), whether or not
any notice, writing or marking indicating such amendment or waiver appears on such Registrable
Securities or is delivered to such Holder. The entry by the Company into any contract, agreement
or understanding that directly or indirectly gives to any person the right to register, or cause
the Company to register, any securities of the Company under the Securities Act on terms more
favorable to such person than those set forth herein shall require written approval by the Holders
of more than 66 2/3% of the Registrable Securities at the time outstanding.



          (k) Inspection. For so long as this Agreement shall be in effect, this Agreement and
a complete list of the names and addresses of all the Holders of Registrable Securities shall be
made available for inspection and copying during regular business hours on any business day by any
Holder of Registrable Securities at the offices of the Company at the address thereof set forth in
Section 9(e) above.



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          (l) Counterparts. This Agreement may be executed in two or more counterparts, each of
which shall be deemed an original, but all of which together shall constitute one and the same
instrument.



          (m) Delays or Omissions. It is agreed that no delay or omission to exercise any
right, power or remedy accruing to any Holder, upon any breach, default or noncompliance of the
Company under this Agreement shall impair any such right, power, or remedy, nor shall it be
construed to be a waiver of any such breach, default or noncompliance, or any acquiescence therein,
or of any similar breach, default or noncompliance thereafter occurring. It is further agreed that
any waiver, permit, consent, or approval of any kind or character on any Holder’s part of any
breach, default or noncompliance under the Agreement or any waiver on such Holder’s part of any
provisions or conditions of this Agreement must be in writing and shall be effective only to the
extent specifically set forth in such writing. All remedies, either under this Agreement, by law,
or otherwise afforded to Holders, shall be cumulative and not alternative.



          (n) Aggregation of Registrable Securities. All shares of Registrable Securities held
or acquired by affiliated entities or persons or persons or entities under common management or
control shall be aggregated together for the purpose of determining the availability of any rights
under this Agreement.



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     IN WITNESS WHEREOF, the parties hereto have caused this instrument to be duly executed as of
the date first written above.



	 	 	 	 	 	 	 	 	 
	 	 	SUPERIOR OFFSHORE INTERNATIONAL, INC.  
	 
	 	 	 	 	 	 	 	 
	 

	 	By:	 	 	 	 	 	 
	 	 	 	 	 	 	 
	 	 	Name:	 	 
	 	 	Title:	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	MR. LOUIS E. SCHAEFER, JR.
	 
	 	 	 	 	 	 	 	 
	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	SCHAEFER HOLDINGS, LP
	 
	 	 	 	 	 	 	 	 
	 	 	By:	 	 	 	Schaefer Holdings GP, LLC
	 
	 	 	 	 	 	 	 	 
	 

	 	 	 	 	 	By: 
	 	 
	 	 	 	 	 	 	Name: R. Joshua Koch, Jr.
	 	 	 	 	 	 	Title: Manager






Signature Page to Registration Rights Agreement