EXHIBIT 7(c)
VOTING TRUST AGREEMENT, made as of the 25th day of May, 2006, between
Xxxxx X. Xxxxxxxxxx, with an address of 000 Xxxx Xxxxxx, Xxxxxxxx, Xxxxxxxx
00000, as Trustee (hereinafter the "Trustee") and Falcon Mezzanine Partners, LP,
a Delaware limited partnership (hereinafter the "Beneficiary") with an address
of 21 Custom Xxxxx Xxxxxx, 00xx Xxxxx, Xxxxxx, Xxxxxxxxxxxxx 00000.
WITNESSETH:
WHEREAS, the Beneficiary is the holder of two hundred and twenty five
thousand (225,000) shares of common stock, par value US$0.001 per share (each a
"Share" and collectively the "Shares") of Horizon Offshore, Inc., a Delaware
corporation (the "Company"); and
WHEREAS, in order to vest in the Trustee the sole right to vote the Shares
and all investment authority and power with respect to the Shares, the
Beneficiary is willing to deposit the number of Shares, referenced above, owned
by it with the Trustee under this Agreement for the period commencing on the
date hereof and ending upon the termination of this Agreement in accordance with
its terms.
NOW, THEREFORE, the parties hereto agree as follows:
1. Delivery to Trustee of Certificates for Shares. Simultaneously with the
execution and delivery of this Agreement, the Beneficiary shall deliver to the
Trustee certificates representing an aggregate of two hundred and twenty five
thousand (225,000) Shares, representing the number of Shares, referenced above,
held by the Beneficiary, endorsed in blank or accompanied by duly completed
instruments of share transfer executed by the Beneficiary. Immediately
subsequent to the execution and delivery of this Agreement and such instruments
of share transfer, the Trustee shall deliver a copy of this Agreement to the
Company, shall surrender to the Company said certificates and instruments of
share transfer, and the Trustee and Beneficiary shall take all further necessary
or appropriate actions to cause the Directors to enter the name of the Trustee
in the register of Members in respect thereof and to cancel said certificates
and to issue to the Trustee a new certificate, representing two hundred and
twenty five thousand (225,000) Shares, in the name of the Trustee. Said new
certificate shall be held by the Trustee, in trust, for the benefit of the
Beneficiary and the heirs, executors, successors and/or assigns of the
Beneficiary (each sometimes hereinafter referred to as a "Beneficiary"), subject
to the terms and conditions hereinafter set forth.
2. Delivery to Trustee of Certificates for Additional Shares. Any and all
certificates for additional shares of the Company issued to the Beneficiary
while it is the Beneficiary under this Agreement shall be in like manner
endorsed and delivered to the Trustee together with a duly completed and
executed form of share transfer to be held by him subject to the terms and
conditions hereof. All such additional shares shall be deemed to be "Shares" for
all purposes of this Agreement.
3. Delivery of Trustee's Certificates. Upon the delivery to the Trustee of
the certificates and forms of share transfer referred to in paragraph 1 hereof,
the Trustee shall deliver to the Beneficiary a certificate (the "Trustee's
Certificate") for the number of Shares delivered to the Trustee by the
Beneficiary, substantially in the form hereinafter set forth. Upon each receipt
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of certificates for additional shares issued to a Beneficiary, the Trustee shall
deliver to such Beneficiary a Trustee's Certificate for the number of shares so
deposited, substantially in the form hereinafter set forth.
The Trustee's Certificate (the terms and provisions of which are a part of
this Agreement) shall be substantially in the following form:
TRUSTEE'S CERTIFICATE
This is to certify that the undersigned Trustee has received a certificate
or certificates issued in the name of Xxxxx X. Xxxxxxxxxx, Trustee, evidencing
the ownership of two hundred and twenty five thousand (225,000) shares of a
nominal or par value of US$0.001 each of Horizon Offshore, Inc., a Delaware
corporation (the "Shares"), and that the Shares are held subject to all the
terms and conditions of that certain Agreement (the "Voting Trust Agreement"),
dated as of May 25, 2006, by and between Falcon Mezzanine Partners, LP and Xxxxx
X. Xxxxxxxxxx, as Trustee. During the term of the Voting Trust Agreement, the
Trustee shall, as provided in the Voting Trust Agreement, possess and be
entitled to exercise the right to vote and otherwise represent all of the Shares
for all purposes, and to exercise all investment authority and power with
respect to all of the Shares for all purposes, it being agreed that no voting
right and no investment authority or power shall pass to the holder hereof by
virtue of the ownership of this Certificate.
This Certificate is assignable with the right to issuance a new
certificate of like tenor only upon the surrender to the Trustee of this
certificate properly endorsed. Upon termination of the Voting Trust Agreement,
this certificate shall be surrendered to the Trustee by the holder hereof upon
delivery to the holder hereof of a certificate representing the Shares not sold
or otherwise disposed of by the Trustee pursuant to the Voting Trust Agreement.
IN WITNESS WHEREOF, the undersigned has executed this Certificate this
_______________ day of _______________, ________.
__________________________, Trustee
Each Trustee's Certificate may be transferred by endorsement by the person
to whom issued, or by his, her or its attorney-in-fact, or by the administrator
or executor of his, her or its estate, by delivery of such Trustee's Certificate
so endorsed to the Trustee; but such transfer shall not be evidence to or be
binding upon the Trustee until such Trustee's Certificate is surrendered to the
Trustee and the transfer is entered upon the "Trustee's Certificate Book," which
shall be kept by the Trustee to show the names of the parties by whom and to
whom transferred, the numbers of the certificates, the number of shares and the
date of transfer. No new Trustee's Certificate shall be issued until the
Trustee's Certificate for the shares represented thereby shall have been
surrendered to and cancelled by the Trustee, and the Trustee shall preserve the
certificates so cancelled as vouchers. In case any Trustee's Certificate shall
be claimed to be lost or destroyed, a new Trustee's Certificate may be issued in
lieu thereof, upon such proof of loss as may be required by the Trustee.
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4. Voting and Investment Authority and Power of Trustee.
(a) During the term of this Agreement, the Trustee shall have the
sole and exclusive voting and investment authority and power with respect to the
Shares held by the Trustee hereunder. The Trustee shall have the power to vote
the Shares held by the Trustee at all regular and special meetings of the
shareholders of the Company and may vote for, do or assent or consent to and
shall have all the powers, rights and privileges of a shareholder of the
Company.
(b) The Trustee may vote in person or by proxy, and a proxy in
writing signed by the Trustee shall be sufficient authority to the person named
therein to vote all the Shares held by the Trustee hereunder at any meeting,
regular or special, of the shareholders of the Company.
(c) The Trustee shall have complete investment authority and power
with respect to the Shares held by the Trustee hereunder, including, without
limitation, the authority and power to sell or otherwise dispose of any or all
of the Shares on such terms and subject to such conditions, as the Trustee in
his sole discretion shall deem appropriate. The Beneficiary and each holder of
Trustee's Certificates hereby appoints the Trustee as his, her or its
attorney-in-fact to execute any documents or instruments necessary (in the
determination of the Trustee) to effect such sale or disposition. Without
limiting the foregoing, each holder of Trustee's Certificates hereby agrees,
following written notification from the Trustee of any such contemplated sale or
other disposition of Shares, to surrender to the Trustee at the time and place
indicated in such notice, his, her or its Trustee's Certificates. The Trustee,
promptly following the closing of any such sale or other disposition of Shares,
shall issue and deliver to each such holder of Trustee's Certificates: (a) a
replacement Trustee's Certificate, reflecting such holder's pro rata interest in
the unsold Shares, as shown on the books of the Trustee, and (b) such holder's
pro rata interest in the net proceeds of any such sale or other disposition of
Shares (after deduction of expenses incurred in connection with such sale or
other disposition), as shown on the books of the Trustee. Upon such surrender of
such Trustee's Certificates, and such payment of such net proceeds, this
Agreement shall terminate as to the shares so sold or otherwise disposed of.
5. Distribution of Cash Dividends.
(a) The Trustee shall distribute directly any cash dividends or
distributions declared and paid on the Shares deposited hereunder (other than
dividends or distributions made in the form of securities of the Company) to the
holders of Trustee's Certificates in proportion to the respective interests
therein as shown on the books of this Trustee, such distribution to be
equivalent to the dividends or distribution which each respective holder would
have been entitled to receive had the Shares not been deposited hereunder. If
the Shares are held in a brokerage account, the Trustee shall instruct the
relevant institution to wire transfer such funds directly to the account of the
holder of a Trust Certificate. As of the date of this Agreement, such account
for the Beneficiary (the sole holder of a Trust Certificate as of the date
hereof) is:
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Bank: Investors Bank & Trust Company
000 Xxxxxxxxx Xxxxxx
Xxxxxx, XX 00000
ABA No.: 000-000-000
Account No.: [omitted]
Account Name: Receipts
Reference: Acct. [omitted] - (name of company sending wire)
(b) The Trustee shall receive and hold, subject to terms of this
Agreement, any voting securities of the Company issued in respect thereof by
reason of any dividend, distribution, capital reorganization, stock split,
combination or the like and shall issue and deliver Trustee's Certificates
therefor to the holders of the Trustee's Certificates in proportion to their
respective interests therein as shown on the books of the Trustee.
6. Term of Agreement. This Agreement and the trust hereby created shall
terminate on June 30, 2007. Until termination in accordance with the terms of
this Agreement, neither this Agreement nor the trust hereby created shall be
revocable or amendable, in whole or in part.
7. Resignation of Trustee. The Trustee may resign, for any reason to be
determined by Trustee in his sole discretion, upon 30 days prior written notice
to the Beneficiary, provided that the Trustee first appoints a replacement
trustee under the Agreement reasonably satisfactory to the Beneficiary. Upon any
such resignation by the Trustee, the Trustee shall reimburse the Beneficiary for
the portion of the Trustee's fees that have been paid but not yet earned,
calculated pro rata on a daily basis.
8. Liability for Willful Misconduct; Indemnification. The Trustee shall
not be liable for any error of judgment or mistake of fact or law, or for any
act or omission undertaken in good faith in connection with his powers and
duties under this Agreement, except for his own willful misconduct or gross
negligence. The Trustee shall not be liable for acts or omissions of any
employee or agent of the Company. The Trustee shall not be liable for acting in
reliance on any notice, request, consent, certificate, instruction, or other
paper or document or signature believed to be genuine and to have been signed by
the proper party or parties. The Trustee may consult with legal and other
counsel of his choosing, and any act or omission undertaken by the Trustee in
good faith in accordance with the opinion of legal or other counsel shall be
binding and conclusive on the parties to this Agreement. The Beneficiary shall
defend, indemnify and hold Trustee and agents, successors and assigns
(collectively, the "Indemnitees") harmless from and against and in respect of
any and all claims, losses, liabilities, damages, expenses and deficiencies,
including reasonable attorneys' fees, and all other reasonable costs of
investigation and defending third-party claims (collectively, the "Losses"),
asserted against, imposed upon or incurred by any Indemnitee which arise out of
or in any way related to Trustee's performance under this Agreement; provided,
however, that Losses shall not include any Losses arising out of a judicial
determination of Trustee's willful misconduct or gross negligence.
9. Compensation and Expense Reimbursement. As compensation for services
rendered hereunder, Beneficiary shall pay to the Trustee a fee of $25,000 on the
date of execution of this Agreement by the parties hereto. The Beneficiary shall
also reimburse the Trustee when appropriate upon submission of written invoices
for its reasonable and documented out-of-pocket expenses incurred in connection
with the execution of its duties under this
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Agreement. Upon a resignation of the Trustee, the Trustee shall reimburse
Beneficiary pro rata for a portion of the Trustee's fees as outlined in
paragraph 7.
10. Binding Agreement. Every registered holder of a Trustee's Certificate,
and every bearer of a Trustee's Certificate properly endorsed in blank or
properly assigned, by the acceptance or holding thereof, shall be deemed
conclusively for all purposes to have assented to this Agreement and to all of
its terms, conditions and provisions and shall be bound thereby with the same
force and effect as if such holder or bearer had executed this Agreement.
Without limiting the foregoing, this Agreement shall be binding upon and inure
to the benefit of each of the parties hereto and their respective heirs,
executors, administrators, successors and assigns.
11. Severability. The invalidity of any term or provision of this
Agreement shall not affect the validity of the remainder of this Agreement.
12. Governing Law; Attorneys' Fees. Regardless of the place of execution,
delivery, performance or any other aspect of this Agreement, this Agreement and
all of the rights of the parties under this Agreement shall be governed by,
construed under and enforced in accordance with the substantive law of New York
without regard to conflicts of law principles. In the event of any litigation
arising out of this Agreement, the prevailing party shall be entitled to recover
from the non-prevailing party all costs of litigation, including without
limitation, reasonable attorneys' fees and customary and reasonable expenses.
13. No Waiver. No waiver of any covenant or condition or the breach of any
covenant or condition of this Agreement shall be deemed to constitute a waiver
of any subsequent breach of such covenant or condition nor justify or authorize
a nonobservance upon any occasion of such covenant or condition or any other
covenant or condition of this Agreement.
14. Entire Agreement. This Agreement constitutes the entire agreement
between the parties hereto with regard to the subject matter thereof, and shall
not be modified or amended except in a writing executed by both of the parties
hereto.
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IN WITNESS WHEREOF, the Trustee and the Beneficiary have executed this
Agreement as of the date set forth above.
FALCON MEZZANINE PARTNERS, LP
By: /s/ Xxxxxxx X. Xxxxxxx Xx.
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FALCON MEZZANINE INVESTMENTS, LLC,
its General Partner
Name: Xxxxxxx X. Xxxxxxx Xx.
Title: Managing Director
By: /s/ Xxxxx X. Xxxxxxxxxx
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Name: Xxxxx X. Xxxxxxxxxx
Title: Trustee
