EXHIBIT 4.3
STOCKHOLDERS' AGREEMENT
Dated June 5, 1997
TABLE OF CONTENTS
PAGE
Section 1. Definitions................................................................................... 1
Section 2. Registration Rights........................................................................... 3
2.1 Piggy-back Registration....................................................................... 3
2.2 Demand Registration Rights.................................................................... 4
2.3 Holdback Agreements; Requirements of Holders.................................................. 8
2.4 Registration Procedures....................................................................... 8
2.5 Registration Expenses......................................................................... 12
2.6 Indemnification; Contribution................................................................. 13
2.7 Participation in Underwritten Registrations................................................... 15
2.8 Rule 144...................................................................................... 15
Section 3. Other Registration Rights..................................................................... 15
Section 4. Block Sale.................................................................................... 16
4.1 Restriction................................................................................... 16
4.2 Legend........................................................................................ 16
Section 5. Miscellaneous................................................................................. 17
5.1 Recapitalizations, Exchanges, etc............................................................. 17
5.2 Opinions...................................................................................... 17
5.3 Notices....................................................................................... 17
5.4 Applicable Law................................................................................ 18
5.5 Amendment and Waiver.......................................................................... 18
5.6 Remedy for Breach of Contract................................................................. 18
5.7 Severability.................................................................................. 18
5.8 Counterparts.................................................................................. 19
5.9 Headings...................................................................................... 19
5.10 Binding Effect................................................................................ 19
5.12 Entire Agreement; Modification................................................................ 19
STOCKHOLDERS' AGREEMENT
This Stockholders' Agreement ("Agreement") is entered into and
made effective as of June 5, 1997, by and among HV Marine Services, Inc., a
Delaware corporation (the "Company"), Xxxx X. Xxxxxxxx ("TMH"), Xxxx X. Xxxxxxxx
("TAH," and, collectively with TMH, the "Hornbecks"), and Xxxx Investment
Company, a Louisiana corporation ("Xxxx").
WITNESSETH:
WHEREAS, the Company has agreed to grant certain demand and piggy-back
registration rights to Xxxx and the Hornbecks, in connection with the purchase
of certain common stock from the Company pursuant to that certain Agreement and
Plan of Reorganization dated of even date herewith among Xxxx and the Hornbecks
(the "Reorganization Agreement");
NOW, THEREFORE, in consideration of the mutual covenants herein
contained and for other good and valuable consideration the receipt and
sufficiency of which are hereby acknowledged, the parties hereto agree as
follows:
Section 1. Definitions. As used in this Agreement, the following terms
have the meanings indicated:
"Affiliate" means, with respect to any Person, any Person that,
directly or indirectly, controls, is controlled by or is under common control
with such Person in question. For the purposes of this definition, "control"
(including, with correlative meanings, the terms "controlled by" and "under
common control with"), as used with respect to any Person, means the possession,
directly or indirectly, of the power, alone or as part of an organized group, to
direct or cause the direction of the management and policies of such Person,
whether through the ownership of voting securities, by contract or otherwise.
"Agreement" means this Stockholder's Agreement, as the same may be
amended, supplemented or modified from time to time in accordance with the terms
hereof then in effect.
"Business Day" shall mean any day other than a Saturday, Sunday or
legal holiday for banks in the State of
Texas.
"Commission" shall mean the Securities and Exchange Commission.
"Common Stock" means the Company's Common Stock, par value $.01 per
share, or any successor class of the Company's Common Stock.
"Company" shall mean HV Marine Services, Inc., a Delaware corporation.
"Demand Registration" shall mean the registration of Registrable
Securities pursuant to a Registration Statement filed by the Company under the
1933 Act pursuant to the written request of certain Holders as set forth in
Section 2.2 of this Agreement.
"Exchange Act" shall mean the Securities Exchange Act of 1934, as
amended.
"Holder" means Xxxx, the Hornbecks and any person owning Purchaser
Shares.
"Liabilities" shall mean all losses, claims, damages, liabilities and
expenses (including reasonable costs of investigation).
"Person" means any individual, corporation, partnership, joint venture,
association, joint-stock company, trust, unincorporated organization or
government or a political subdivision, agency or instrumentality thereof or
other entity or organization of any kind.
"Piggyback Registration" shall mean the registration of Registrable
Securities pursuant to a registration statement filed by the Company under the
1933 Act as set forth in Section 2.1 of this Agreement.
"Purchaser Shares" means (i) the shares of Common Stock to be acquired
by Xxxx and the Hornbecks pursuant to the Reorganization Agreement, (ii) the
shares of Common Stock into which the Company's preferred stock acquired by Xxxx
under the Reorganization Agreement is convertible, (iii) any other shares of
Common Stock or equivalents issued to any other person which the Company shall
designate "Purchaser Shares" hereunder for the purpose of providing such person
registration rights equivalent to Cari's or the Hornbecks', including the shares
of the other stockholders as set forth in Exhibit A hereto, and (iv) any shares
of the Common Stock issued in exchange for, as a dividend on, or in replacement
or upon conversion of, or otherwise issued in respect of (including Common Stock
issued in a stock dividend, split or recombination or pursuant to the exercise
of preemptive rights), any such shares of Common Stock described in clauses (i),
(ii) and (iii).
"Records" shall mean all financial and other records, pertinent
corporate documents and properties of the Company.
"Registrable Securities" means any Purchaser Shares until such time as
they have been (i) distributed to the public pursuant to a registration
statement covering such securities that has been declared effective under the
Securities Act, (ii) distributed to the public in accordance with the provisions
of Rule 144 (or any similar provision then in force) under the Securities Act or
(iii) repurchased by the Company.
"Series 1 Preferred Stock" shall mean the Series 1 Convertible
Preferred Stock, par value $.01 per share, of the Company.
"Series 1 Designation" shall mean the Certificate of Designations,
Preferences and Rights of Series 1 Convertible Preferred Stock.
Section 2. Registration Rights.
2.1 Piggy-back Registration.
(a) If the Company proposes to file a registration
statement under the Securities Act of 1933, as amended (the "1933 Act"), with
respect to an offering by the Company
2
for its own account or for the account of any other Person of any class of
equity security, including any securities convertible into or exchangeable for
any equity security (other than a registration statement on Forms S-4 or S-8 (or
their successor forms) or filed in connection with an exchange offer or an
offering of securities solely to the Company's existing stockholders), then the
Company shall in each case give written notice of such proposed filing to the
Holders of Registrable Securities at least twenty days before the anticipated
filing date, and such notice shall offer such Holders the opportunity to
register such number of Registrable Securities as each such Holder may request
(a "Piggy-back Registration"). The Company shall use reasonable diligence to
cause the managing underwriter or underwriters of a proposed underwritten
offering to permit the Holders of Registrable Securities requested to be
included in the registration for such offering to include such securities in
such offering on the same terms and conditions as any similar securities of the
Company included therein. Notwithstanding the foregoing, if the managing
underwriter or underwriters of such offering delivers a written opinion to the
holders of Registrable Securities that the total amount of securities which they
or the Company and any other Persons intend to include in such offering is
sufficiently large to materially and adversely affect the success of such
offering, then the amount or kind of Registrable Securities to be offered for
the accounts of Holders of Registrable Securities shall be reduced pro rata with
respect to each Holder requesting inclusion therein to the extent necessary, in
the opinion of such managing underwriter, to reduce the total amount of
securities to be included in such offering to the amount recommended by such
managing underwriter; provided, however, that if securities are being offered
for the account of other Persons as well as the Company, such reduction shall
not represent a greater fraction of the number of securities intended to be
offered by Holders of Registrable Securities than the fraction of similar
reductions imposed on such other Persons with respect to the amount of
securities they intended to offer.
(b) Notwithstanding anything to the contrary
contained in this Agreement, the Company shall not be required to include
Registrable Securities in any registration statement if the proposed
registration is (i) a registration of a stock option or other employee incentive
compensation plan or of securities issued or issuable pursuant to any such plan,
(ii) a registration of securities issued or issuable pursuant to a stockholder
reinvestment plan, or other similar plan, (iii) a registration of securities
issued in exchange for any securities or any assets of, or in connection with a
merger or consolidation with, an unaffiliated company, or (iv) a registration of
securities pursuant to a "rights" or other similar plan designed to protect the
Company's stockholders from a coercive or other attempt to take control of the
Company.
(c) The Company may withdraw any registration
statement and abandon any proposed offering initiated by the Company without the
consent of any Holder of Registrable Securities, notwithstanding the request of
any such Holder to participate therein in accordance with this provision, if the
Company determines in its sole discretion that such action is in the best
interests of the Company and its stockholders (for this purpose, the interest of
the Holders in effecting the registration and offering shall not be considered).
3
2.2 Demand Registration Rights.
(a) Right to Demand.
(i) Subject to the conditions 2.2(a) stated
herein, at any time after the date hereof, the Holders of at least 50.1% of the
shares of Registrable Securities may make a written request to the Company for
registration with the Commission by such Holders, under and in accordance with
the provisions of the 1933 Act, of the resale of all or part of their
Registrable Securities (a "Demand Registration"); provided that the Company may
if necessary delay the filing of such Demand Registration for such reasonable
period of time, not to exceed 90 days, as is necessary to prepare the financial
statements of the Company for the fiscal period most recently ended prior to
such written request. Within 10 Business Days after receipt of such request, the
Company will serve written notice (the "Notice") of such registration request to
all Holders of the Registrable Securities and holders of Company securities
possessing equivalent registration rights and the Company will include in such
registration all Registrable Securities and securities eligible for registration
of such holders with respect to which the Company has received written requests
for inclusion therein within 15 Business Days after the receipt by the
applicable holder of the Notice.
(ii) Subject to the conditions stated
hereinafter in this Section 2.2(a), at any time after June 5, 2000, any
Specified Holder (as identified on Exhibit A) may make a written request to the
Company for registration with the Commission of the offer and sale of such
Specified Holder's shares of the Registrable Securities under and in accordance
with the provisions of the 1933 Act (the "Special Demand Registration").
Following receipt of such request, the Company shall, no later than 10 Business
Days after receipt of such request, notify such Specified Holder of its election
to either (1) file, at the Company's expense, the registration statement
covering such shares for sale by such Specified Holder; provided, that the
Company may, if necessary, delay the filing of any registration statement
relating to any such Special Demand Registration for such reasonable period of
time, not to exceed 90 days, as is necessary to prepare the financial statements
of the Company for the fiscal period most recently ended prior to such written
request, or (2) if the Company is not at such time registered under the Exchange
Act, purchase the number of shares requested to be registered from such
Specified Holder at a price per share equal to the Fair Market Value for shares
of Common Stock. In the event the Company elects to exercise its rights under
(2) above, such Specified Holder shall not be required to sell such Registrable
Securities to the Company, but because the Company offers to purchase such
Registrable Securities, its obligation to register such Registrable Securities
on demand under this Section 2.2(a)(ii) shall have been satisfied. Within 10
Business Days after the Company provides its notice of election to such
Specified Holder, the Company will serve written notice (the "Special Demand
Notice") of such registration request to all Holders of Registrable Securities
and the Company will include in such registration or Company purchase of shares,
together with the shares of the Specified Holder, all such Registrable
Securities with respect to which the Company has received written requests for
inclusion therein within 10 Business Days after the receipt by the applicable
Holder of the Special Demand Notice. If a Holder of Registrable Securities shall
fail to request inclusion in such Special Demand Registration or Company
purchase of shares, and such Special Demand Registration shall not
4
become effective under the 1933 Act, or the Company does not purchase part of
all of the shares of Registrable Securities provided for because one or more
Holders chose not to sell as provided above, such Holder failing to request
inclusion in the Special Demand Registration shall not have a right to request
inclusion of such Holder's Registrable Securities in a future demand
registration or Company purchase of shares with respect to the Registrable
Securities. Any Holder, a representative of whom is on the Company's Board of
Directors and which representative voted not to register the shares upon such a
request, shall not be entitled to cause the inclusion of such Holder's shares in
any such Special Demand Registration or Company purchase of shares.
(iii) Any purchase of shares by the Company
pursuant to Section 2.2(a)(ii) above shall be consummated (a "Closing") within
10 Business Days after the expiration of the 10 Business Day period stated above
that begins with the receipt by the applicable Holder of the Special Demand
Notice. Any Closing shall take place at the offices of the Company at 0000
Xxxxxxx Xxxxxx, Xxxxx 0000, Xxx Xxxxxxx, Xxxxxxxxx, at 9:00 a.m. At the Closing,
the Company will deliver to each Holder selling shares a certified or bank
cashier's check or evidence of a wire transfer to the Holder's designated
account, in the amount of the purchase price for the Shares sold by such Holder,
against delivery of the certificate evidencing such shares duly endorsed or
accompanied by a stock power duly endorsed in blank.
(iv) For purposes of this Section 2.2(a),
the term "Fair Market Value" shall mean, with respect to shares of Common Stock,
as of any date, (A) if the Common Stock is listed or admitted to trade on a
national securities exchange, the closing price of the Common Stock on the
composite tape, as published in The Wall Street Journal, of the principal
national securities exchange on which the Common Stock is so listed or admitted
to trade, on such date or, if there is no trading in shares of the Common Stock
on such date, then the closing price of the Common Stock as quoted on such
composite tape on the next preceding date on which there was trading in such
shares of Common Stock; (B) if the Common Stock is not listed or admitted to
trade on a national securities exchange, then the closing price of the Common
Stock as quoted on the National Market System of the National Association of
Securities Dealers, Inc. ("NASD"); (C) if the Common Stock is not listed or
admitted to trade on a national securities exchange or the National Market
System of the the National Association of Securities Dealers, Inc. ("NASD"), the
mean between the bid and asked price for the Common Stock on such date, as
furnished by NASD through NASDAQ or a similar organization if NASDAQ is no
longer reporting such information; or (D) if the Common Stock is not listed or
admitted to trade on a national securities exchange or the National Market
System of the NASD and if bid and asked prices for the Common Stock are not so
furnished by the NASD or a similar organization, the value established by the
Board of Directors of the Company in good faith but in any event not less than
90% of the price at which the common stock issued by the Company was last sold
(other than pursuant to options or warrants). Fair Market Value shall be
determined without regard to any restriction other than a restriction which, by
its terms, will never lapse.
(v) All requests made pursuant to this
Section 2.2(a) will specify the amount of Registrable Securities to be
registered and will also specify the intended methods of disposition thereof.
5
(vi) Each of the terms "Hornbecks" and
"Xxxx," as used in this Section 2.2, shall also refer collectively to any
Holders that are transferees of such entity.
(b) Number of Demand Registrations; Payment of
Expenses. Notwithstanding the percentage limitation in Section 2.2(a)(i), after
June 5, 2000, each of the Hornbecks and Xxxx shall, subject to the provisions of
paragraph (c) below, be entitled to one Demand Registration, which in each case
must become effective to count as having occurred. The Company shall pay all
Registration Expenses (as hereinafter defined) of each Demand Registration,
whether or not it becomes effective. The Company's obligation to make Demand
Registrations shall, subject to the provisions of paragraph (c) below, cease on
the date seven years after the date hereof.
(c) Supplemental Demand Registrations. If the
managing underwriter or underwriters of a Demand Registration (or in the case of
a Demand Registration not being underwritten, the holders of a majority of the
Registrable Securities being registered therein), advise the Company in writing
that in its or their opinion the number of securities proposed to be sold in
such Demand Registration exceeds the number which can be sold in such offering
at the desired price, the Company will include in such registration only the
number of securities which, in the opinion of such underwriter or underwriters
(or Holders, as the case may be) can be sold, selected pro rata among the
Holders which have requested to be included in such Demand Registration. In such
event, the Holders of the shares requested to be included but not so included
(the "Excess Requested Shares") shall be treated as if there had been no Demand
Registration, and shall be entitled to the benefit of this Section 2.2 with
respect to the Excess Requested Shares, provided that any subsequent Demand
Registration shall not be required to become effective within twelve months of
the effective date of any prior Demand or Piggy-back Registration hereunder.
With respect to such a Demand Registration subsequently initiated, only Excess
Requested Shares shall be deemed Registrable Shares, and no Holder shall have
any further Demand Registration rights with respect to shares for which he
failed to request inclusion pursuant to Section 2.2(a) in a prior Demand
Registration that became effective.
(d) Selection of Underwriters. If any Demand
Registration is an underwritten offering, the holders of a majority of the
Registrable Securities to be included in such Demand Registration will select a
managing underwriter or underwriters acceptable to the Company to administer the
offering, which acceptance will not be unreasonably withheld.
(e) Company Registration. Notwithstanding the
provisions of paragraphs 2.2(a)-(d), the Company shall not be obligated to
effect a registration requested pursuant to paragraphs 2.2(a)-(d) if (i) within
30 days after receiving the notice provided by a Holder under paragraphs
2.2(a)-(d), the Company notifies all Holders of Registrable Securities of its
intention to file a registration statement for a firm commitment underwritten
public offering of Common Stock and within ninety days after providing such
notice, files a registration statement for such offering and (ii) the Company
has never before exercised its rights under this paragraph 2.2(e). In such case,
the Holders shall have all the rights provided herein as if no such demand for
registration had been requested. If at any time the Company fails diligently to
pursue its registration statement or the offering, the provisions of the
preceding sentence shall not apply, and the Company shall be obligated to
satisfy its obligations under paragraphs 2.2(a)-(d). With
6
respect to such registration, the Company shall have sole authority to
select or terminate the employment of underwriters, and to make all decisions in
connection with the filing, effectiveness and consummation of the proposed
offering, subject to the express provisions hereof.
(f) The obligations of the Company under Sections
2.2(a)-(d) are subject to each of the following limitations, conditions and
qualifications:
(i) The Company shall be entitled to
postpone for a reasonable period of time (not exceeding 60 days) the filing (but
not the preparation) of any registration statement otherwise required to be
prepared and filed by it pursuant hereto if, at the time the Company receives a
request for such registration, the Company is in possession of material
non-public information that would be required to be disclosed in a registration
statement but that has not been and will otherwise not be disclosed to the
public and the Company deems disclosure not to be in the best interests of the
Company and its stockholders (for this purpose, the interest of the Holders in
effecting the registration shall not be considered). The Company shall be
entitled to postpone the filing of such a registration statement for additional
60-day periods (not to exceed in any event an aggregate of 120 days) if it
delivers to the Holders of Registrable Securities an opinion of counsel to the
effect that there is a reasonable likelihood that the filing of a registration
statement would result in the disclosure of material non-public information that
would be required to be disclosed in a registration statement, the disclosure of
which at such time appears not to be in the best interests of the Company and
its stockholders (for this purpose, the interest of the Holders in effecting the
registration shall not be considered).
(ii) The Company shall be entitled to
postpone for a reasonable period of time (not exceeding 90 days) the
distribution of preliminary or final prospectuses under any registration
statement required to be prepared and filed by it pursuant hereto, if at the
time such distribution would otherwise be made the Company is engaged in an
issuer tender offer within the meaning of Section 13(e) of the Securities
Exchange Act of 1934, as amended, for securities of the same class as the
Registrable Securities, unless the Holders of the Registrable Securities
proposed to be registered can obtain a no-action letter from the staff of the
Securities and Exchange Commission (the "Commission") to the effect that the
staff would not recommend enforcement action to the Commission if offers or
sales were made pursuant to a prospectus under such circumstances.
(iii) The Company shall be entitled to
postpone for a reasonable period of time (not exceeding 90 days) the
effectiveness (but not the filing or preparation) of any registration statement
otherwise required to be prepared and filed by it pursuant hereto if, within 10
Business Days after it receives a request for a registration pursuant hereto,
the Company's investment banking firm determines (and the Company so notifies
the Holders of Registrable Securities) that in its judgment, such registration
and offering would materially interfere with any financing, acquisition,
corporate reorganization or other material transaction involving the Company
that prior to such request the Board of Directors of the Company had agreed by
resolution to pursue.
(iv) If pursuant to a request for Demand
Registration the Company delivers to the Holders of Registrable Securities
proposed to be registered an opinion
7
of counsel to the effect that sales of such Registrable Securities thereunder
might cause the Company to lose a material amount of net operating losses or
other tax carryforwards, the Company may postpone the filing of the registration
statement otherwise required to be filed by it pursuant hereto, but only to the
extent required to protect such carryforwards, and only if it is first
determined that such protection cannot be effected by reducing the number of
shares being registered.
2.3 Holdback Agreements; Requirements of Holders.
(a) Restrictions on Public Sale by Holders of
Registrable Securities. To the extent not inconsistent with applicable law,
including insurance codes, each Holder of Registrable Securities that are
included in a registration statement which registers Registrable Securities
pursuant to this Agreement agrees not to effect any public sale or distribution
of the issue being registered or a similar security of the Company or any
securities convertible into or exchangeable or exercisable for such securities,
during the 14 days prior to, and during the 90-day period beginning on, the
effective date of a registration statement filed by the Company (except as part
of such registration), but only if and to the extent requested in writing (with
reasonable prior notice) by the managing underwriter or underwriters in the case
of an underwritten public offering by the Company of securities similar to the
Registrable Securities; provided, however, that the period of time for which the
Company is required to keep such registration statement which includes
Registrable Securities continuously effective shall be increased by a period
equal to such requested holdback period.
(b) Restrictions on Public Sale by the Company. The
Company agrees not to effect any public sale or distribution of any securities
similar to those being registered, or any securities convertible into or
exchangeable or exercisable for such securities, during the 14 days prior to,
and during the 90-day period beginning on, the effective date of any
registration statement in which the Holders of Registrable Securities are
participating (except pursuant to such registration statement).
(c) Cooperation by Holders. The offering of
Registrable Securities by any Holder shall comply in all respects with the
applicable terms, provisions and requirements set forth in this Agreement, and
such Holder shall timely provide the Company with all information and materials
required to be included in a registration statement that (a) relate to the
offering, (b) are in possession of such Holder, and (c) relate to such Holder,
and to take all such action as may be reasonably required in order not to delay
the registration and offering of the securities by the Company. The Company
shall have no obligation to include in such registration statement shares of a
Holder who has failed to furnish such information which, in the written opinion
of counsel to the Company, is required in order for the registration statement
to be in compliance with the 1933 Act.
2.4 Registration Procedures. Whenever any Registrable
Securities are to be registered pursuant to Sections 2.1 or 2.2 of this
Agreement, the Company will use reasonable diligence to effect the registration
of such Registrable Securities in accordance with the intended method of
disposition thereof as quickly as practicable. In connection with any Piggy-back
Registration or Demand Registration, the Company will as expeditiously as
possible:
8
(a) prepare and file with the Commission a
registration statement which includes the Registrable Securities and use
reasonable diligence to cause such registration statement to become effective;
provided, however, that before filing a registration statement or prospectus or
any amendments or supplements thereto, including documents incorporated by
reference after the initial filing of the registration statement, the Company
will furnish to the Holders of the Registrable Securities covered by such
registration statement and the underwriters, if any, draft copies of all such
documents proposed to be filed at least 5 Business Days prior thereto, which
documents will be subject to the reasonable review of such Holders and
underwriters, and the Company will not file any registration statement or
amendment thereto or any prospectus or any supplement thereto (including such
documents incorporated by reference) to which holders of a majority of the
Registrable Securities covered by such registration statement or the
underwriters with respect to such Registrable Securities, if any, shall
reasonably object, and will notify each Holder of the Registrable Securities of
any stop order issued or threatened by the Commission in connection therewith
and take all reasonable actions required to prevent the entry of such stop order
or to remove it if entered;
(b) prepare and file with the Commission such
amendments and post-effective amendments to the registration statement as may be
necessary to keep the registration statement effective for a period of not less
than six months (or such shorter period which will terminate when all
Registrable Securities covered by such registration statement have been sold or
withdrawn, but not prior to the expiration of the 90-day period referred to in
Section 4(3) of the 1933 Act and Rule 174 thereunder, if applicable); cause the
prospectus to be supplemented by any required prospectus supplement, and as so
supplemented to be filed pursuant to Rule 424 under the 1933 Act; and comply
with the provisions of the 1933 Act applicable to it with respect to the
disposition of all securities covered by such registration statement during the
applicable period in accordance with the intended methods of disposition by the
sellers thereof set forth in such registration statement or supplement to the
prospectus;
(c) furnish to any Holder of Registrable Securities
included in such registration statement and the underwriter or underwriters, if
any, without charge, such number of conformed copies of the registration
statement and any post-effective amendment thereto and such number of copies of
the prospectus (including each preliminary prospectus) and any amendments or
supplements thereto, and any documents incorporated by reference therein, as
such Holder or underwriter may request in order to facilitate the disposition of
the Registrable Securities being sold by such Holder (it being understood that
the Company consents to the use of the prospectus and any amendment or
supplement thereto by each Holder of Registrable Securities covered by the
registration statement and the underwriter or underwriters, if any, in
connection with the offering and sale of the Registrable Securities covered by
the prospectus or any amendment or supplement thereto); provided, however, that
before filing a registration statement or prospectus or any amendments or
supplements thereto, the Company will furnish to one counsel selected by the
Holders of a majority of the Registrable Securities covered by such registration
statement, copies of all documents proposed to be filed which documents will be
subject to the review of such counsel;
(d) notify each Holder of Registrable Securities
included in such registration statement, at any time when a prospectus relating
thereto is required to be delivered
9
under the Securities Act, when the Company becomes aware of the happening of
any event as a result of which the prospectus included in such registration
statement (as then in effect) contains any untrue statement of a material fact
or omits to state a material fact necessary to make the statements therein (in
the case of the prospectus or any preliminary prospectus, in light of the
circumstances under which they were made) not misleading and, as promptly as
practicable thereafter, prepare and file with the Commission and furnish a
supplement or amendment to such prospectus so that, as thereafter delivered to
the purchasers of such Registrable Securities, such prospectus will not contain
any untrue statement of a material fact or omit to state a material fact
necessary to make the statements therein, in light of the circumstances under
which they were made, not misleading;
(e) use reasonable diligence to cause all Registrable
Securities included in such registration statement to be listed, by the date of
the first sale of Registrable Securities pursuant to such registration
statement, on each securities exchange (including, for this purpose, NASDAQ) on
which the Common Stock of the Company is then listed or proposed to be listed,
if any;
(f) make generally available to its security holders
an earnings statement satisfying the provisions of Section 11(a) of the 1933 Act
no later than 45 days after the end of the 12-month period beginning with the
first day of the Company's first fiscal quarter commencing after the effective
date of the registration statement, which earnings statement shall cover said
12-month period, which requirement will be deemed to be satisfied if the Company
timely files complete and accurate information on Forms 10-Q, 10-K and 8-K under
the Securities Exchange Act of 1934, as amended (the "Exchange Act"), and
otherwise complies with Rule 158 under the 1933 Act as soon as feasible;
(g) make every reasonable effort to obtain the
withdrawal of any order suspending the effectiveness of the registration
statement at the earliest possible moment;
(h) if requested by the managing underwriter or
underwriters or any Holder of Registrable Securities covered by the registration
statement, promptly incorporate in a prospectus supplement or post-effective
amendment such information as the managing underwriter or underwriters or such
Holder requests to be included therein, including, without limitation, with
respect to the number of Registrable Securities being sold by such Holder to
such underwriter or underwriters, the purchase price being paid therefor by such
underwriter or underwriters and any other terms of the underwritten offering of
such Registrable Securities, and promptly make all required filings of such
prospectus supplement or post-effective amendment;
(i) as promptly as practicable after filing with the
Commission of any document which is incorporated by reference into a
registration statement, deliver a copy of such document to each Holder of
Registrable Securities covered by such registration statement;
(j) on or prior to the date on which the registration
statement is declared effective, use reasonable diligence to register or
qualify, and cooperate with the Holders of Registrable Securities included in
such registration statement, the underwriter or underwriters, if any, and their
counsel, in connection with the registration or qualification of the Registrable
10
Securities covered by the registration statement for offer and sale under the
securities or blue sky laws of each state and other jurisdiction of the
United States as any such Holder or underwriter reasonably requests in writing,
to use reasonable diligence to keep each such registration or qualification
effective, including through new filings, or amendments or renewals, during the
period such registration statement is required to be kept effective and to do
any and all other acts or things necessary or advisable to enable the
disposition in all such jurisdictions of the Registrable Securities covered by
the applicable registration statement; provided that the Company will not be
required to qualify generally to do business in any jurisdiction where it is not
then so qualified or to take any action which would subject it to general
service of process in any such jurisdiction where it is not then so subject;
(k) cooperate with the Holders of Registrable
Securities covered by the registration statement and the managing underwriter or
underwriters, if any, to facilitate the timely preparation and delivery of
certificates (not bearing any restrictive legends) representing securities to be
sold under the registration statement, and enable such securities to be in such
denominations and registered in such names as the managing underwriter or
underwriters, if any, or such Holders may request, subject to the underwriters'
obligation to return any certificates representing securities not sold;
(l) use reasonable diligence to cause the Registrable
Securities covered by the registration statement to be registered with or
approved by such other governmental agencies or authorities within the United
States as may be necessary to enable the seller or sellers thereof or the
underwriter or underwriters, if any, to consummate the disposition of such
securities;
(m) enter into such customary agreements (including
an underwriting agreement in customary form) and take all such other reasonable
actions as the Holders of a majority of the Registrable Securities being sold or
the underwriters retained by Holders participating in an underwritten public
offering, if any, reasonably request in order to expedite or facilitate the
disposition of such Registrable Securities;
(n) make available for inspection by any holder of
Registrable Securities included in such registration statement, any underwriter
participating in any disposition pursuant to such registration statement, and
any attorney, accountant or other agent retained by any such seller or
underwriter (collectively, the "Inspectors"), all nonconfidential financial and
other records, pertinent corporate documents and properties of the Company
(collectively, the "Records"), as shall be reasonably necessary to enable them
to exercise their due diligence responsibility, and cause the Company's
officers, directors and employees to supply all Records reasonably requested by
any such Inspector in connection with such registration statement; and
(o) use reasonable diligence in connection with any
underwritten offering to obtain a "cold comfort" letter from the Company's
independent public accountants in customary form and covering such matters of
the type customarily covered by cold comfort letters as the managing underwriter
or underwriters may reasonably request.
11
Each Holder, upon receipt of any notice from the Company of the
happening of any event of the kind described in subsection (d) of this
Section 2.4, will forthwith discontinue disposition of the Registrable
Securities until such Holder's receipt of the copies of the supplemented or
amended prospectus contemplated by subsection (d) of this Section 2.4 or until
it is advised in writing (the "Advice") by the Company that the use of the
prospectus may be resumed, and has received copies of any additional or
supplemental filings which are incorporated by reference in the prospectus, and,
if so directed by the Company, such Holder will, or will request the managing
underwriter or underwriters, if any, to, deliver to the Company (at the
Company's expense) all copies, other than permanent file copies then in such
Holder's possession, of the prospectus covering such Registrable Securities
current at the time of receipt of such notice. In the event the Company shall
give any such notice, the time periods mentioned in subsection (b) of this
Section 2.4 shall be extended by the number of days during the period from and
including the date of the giving of such notice to and including the date when
each seller of Registrable Securities covered by such registration statement
shall have received the copies of the supplemented or amended prospectus
contemplated by subsection (d) of this Section 2.4 hereof or the Advice.
If such registration statement refers to any Holder by name or
otherwise as the Holder of any securities of the Company then such Holder shall
have the right to require (i) the insertion therein of language, in form and
substance satisfactory to such holder, to the effect that the holding by such
Holder of such securities is not to be construed as a recommendation of such
Holder of the investment quality of the Company's securities covered thereby and
that such holding does not imply that such Holder will assist in meeting any
future financial requirements of the Company, or (ii) in the event that such
reference to such Holder by name or otherwise is not required by the 1933 Act or
any similar federal statute then in force, the deletion of the reference to such
Holder.
2.5 Registration Expenses. All expenses incident to the
Company's performance of or compliance with this Agreement, including without
limitation, all SEC and securities exchange or National Association of
Securities Dealers, Inc. registration and filing fees, fees and expenses (other
than the pro rata portion of filing fees required by state law attributable to
the securities to be sold) of compliance with securities or blue sky laws
(including fees and disbursements of counsel in connection with blue sky
qualifications of the Registrable Securities), rating agency fees, printing
expenses, messenger and delivery expenses, internal expenses (including, without
limitation, all salaries and expenses of its officers and employees performing
legal or accounting duties), the fees and expenses incurred in connection with
the listing of the securities to be registered on each securities exchange on
which similar securities issued by the Company are then listed and fees and
disbursements of counsel for the Company and its independent certified public
accountants (including the expenses of any special audit or "cold comfort"
letters required by or incident to such performance), securities act liability
insurance (if the Company elects to obtain such insurance), the fees and
expenses of any special experts retained by the Company in connection with such
registration (but not including any underwriting fees, discounts or commissions
attributable to the sale of Registrable Securities), and any out-of-pocket
expenses of the Holders of Registrable Securities excluding any travel costs and
counsel fees except as set forth above (all such expenses being herein called
"Registration Expenses"), will be borne by the Company.
12
2.6 Indemnification; Contribution.
(a) Indemnification by the Company. The Company
agrees to indemnify and hold harmless each Holder of Registrable Securities, its
officers, directors and each Person who controls such Holder (within the meaning
of the 1933 Act), and any Agent (as hereinafter defined) or investment advisor
thereof against all losses, claims, damages, liabilities and expenses (including
reasonable costs of investigation) (collectively, "Liabilities") arising out of
or based upon any untrue or alleged untrue statement of material fact contained
in any registration statement, any amendment or supplement thereto, any
prospectus or preliminary prospectus or any omission or alleged omission to
state therein a material fact required to be stated therein or necessary to make
the statements therein not misleading, except insofar as any such Liabilities
arise out of or are based upon any untrue statement or omission based upon
information with respect to such indemnified Person furnished in writing to the
Company by such indemnified Person expressly for use therein. In connection with
an underwritten offering, the Company will indemnify the underwriters thereof,
their officers and directors and each Person who controls such underwriters
(within the meaning of the 0000 Xxx) to the same extent as provided above with
respect to the indemnification of the Holders of Registrable Securities or to
such other extent as the Company and such underwriters may agree. For purposes
of this Section 2.6(a), an "Agent" of a Holder of Registrable Securities is any
person acting for or on behalf of such Holder with respect to the holding or
sale of such Registrable Securities.
(b) Indemnification by Holders of Registrable
Securities. In connection with any registration statement in which a Holder of
Registrable Securities is participating, each such Holder will furnish to the
Company in writing such information with respect to the name and address of such
Holder and the amount of Registrable Securities held by such Holder and such
other information as the Company shall reasonably request for use in connection
with any such registration statement or prospectus, and agrees to indemnify, to
the extent permitted by law, the Company, its directors and officers and each
Person who controls the Company (within the meaning of the 0000 Xxx) against any
losses, claims, damages, liabilities and expenses resulting from any untrue
statement of a material fact or any omission of a material fact required to be
stated in the registration statement or prospectus or any amendment thereof or
supplement thereto or necessary to make the statements therein not misleading,
to the extent, but only to the extent, that such untrue statement or omission is
based upon any information with respect to such Holder so furnished in writing
by such Holder specifically for inclusion in any prospectus or registration
statement. In no event shall the liability of any selling Holder of Registrable
Securities hereunder be greater in amount than the dollar amount of the proceeds
received by such Holder upon the sale of the Registrable Securities giving rise
to such indemnification obligation.
(c) Conduct of Indemnification Proceedings. Any
Person entitled to indemnification hereunder agrees to give prompt written
notice to the indemnifying party after the receipt by such Person of any written
notice of the commencement of any action, suit, proceeding or investigation or
threat thereof made in writing for which such Person may claim indemnification
or contribution pursuant to this Agreement and, unless in the written opinion of
counsel for such indemnified party a conflict of interest may exist between such
indemnified party and the indemnifying party with respect to such claim, permit
the indemnifying party to assume the defense of such claim with counsel
reasonably satisfactory to such indemnified party.
13
Whether or not such defense is assumed by the indemnifying party, the
indemnifying party will not be subject to any liability for any settlement made
without its consent. No indemnifying party will consent to entry of any judgment
or enter into any settlement which does not include as an unconditional term
thereof the giving by the claimant or plaintiff to such indemnified party of a
release from all liability in respect of such claim or litigation. If the
indemnifying party is not entitled to, or elects not to, assume the defense of a
claim, it will not be obligated to pay the fees and expenses of more than one
counsel with respect to such claim, unless in the opinion of counsel for any
indemnified party a conflict of interest may exist between such indemnified
party and any other of such indemnified parties with respect to such claim, in
which event the indemnifying party shall be obligated to pay the fees and
expenses of such additional counsel or counsels.
(d) Contribution. If the indemnification provided for
in this Section 2.6 from the indemnifying party is unavailable to an indemnified
party hereunder in respect of any losses, claims, damages, liabilities or
expenses referred to therein, then the indemnifying party, in lieu of
indemnifying such indemnified party, shall contribute to the amount paid or
payable by such indemnified party as a result of such losses, claims, damages,
liabilities or expenses in such proportion as is appropriate to reflect the
relative fault of the indemnifying party and indemnified parties in connection
with the actions which resulted in such losses, claims, damages, liabilities or
expenses, as well as any other relevant equitable considerations. The relative
fault of such indemnifying party and indemnified parties shall be determined by
reference to, among other things, whether any action in question, including any
untrue or alleged untrue statement of a material fact, has been made by, or
relates to information supplied by, such indemnifying party or indemnified
parties, and the parties' relative intent, knowledge, access to information and
opportunity to correct or prevent such action. The amount paid or payable by a
party as a result of the losses, claims, damages, liabilities and expenses
referred to above shall be deemed to include, subject to the limitations set
forth in Section 2.6(c), any legal or other fees or expenses reasonably incurred
by such party in connection with any investigation or proceeding.
The parties hereto agree that it would not be just and equitable if
contribution pursuant to this Section 2.6(d) were determined by pro rata
allocation or by any other method of allocation which does not take account of
the equitable considerations referred to in the immediately preceding paragraph.
Notwithstanding the provisions of this Section 2.6(d), no selling Holder shall
be required to contribute any amount in excess of the amount by which the total
price at which the Registrable Securities of such selling Holder were offered to
the public exceeds the amount of any damages which such selling Holder has
otherwise been required to pay by reason of such untrue statement or omission.
No Person guilty of fraudulent misrepresentation (within the meaning of Section
11(f) of the 0000 Xxx) shall be entitled to contribution from any Person who was
not guilty of such fraudulent misrepresentation.
The obligations of the Company pursuant to this Section 2.6 shall be
further subject to such additional express agreements of the Company as may be
required to facilitate an underwritten offering, provided that no such agreement
shall in any way limit the rights of the Holders of Registrable Securities under
this Agreement, or create additional obligations of such Holders not set forth
herein, except as otherwise expressly agreed in writing by any such Holders.
14
2.7 Participation in Underwritten Registrations. No Holder of
Registrable Securities may participate in any underwritten registration
hereunder unless such Holder (a) agrees to sell such Holder's securities on the
terms of and on the basis provided in any underwriting arrangements approved by
the Persons entitled hereunder to approve such arrangements (which shall be the
Company in the case of an offering of securities by the Company) and (b)
completes and executes all questionnaires, powers of attorney, indemnities,
underwriting agreements and other documents reasonably required under the terms
of such underwriting arrangements.
2.8 Rule 144. The Company covenants that, upon any
registration statement covering Company securities becoming effective, it will
file the reports required to be filed by it under the 1933 Act and the Exchange
Act and the rules and regulations adopted by the Commission thereunder (or, if
the Company is not required to file such reports, it will, upon the request of
any Holder of Registrable Securities, make publicly available other
nonconfidential information so long as necessary to permit sales under Rule 144
under the 0000 Xxx) , and it will take such other action as any Holder of
Registrable Securities may reasonably request, all to the extent required from
time to time to enable such Holder to sell Registrable Securities without
registration under the 1933 Act within the limitation of the exemptions provided
by (a) Rule 144 under the 1933 Act, as such Rule may be amended from time to
time, or (b) any similar rule or regulation hereafter adopted by the Commission.
Upon the request of any Holder of Registrable Securities, the Company will
deliver to such Holder a written statement as to whether it has complied with
such requirements.
Section 3. Other Registration Rights. The Company may only grant
registration rights to any person (including the Holders of Registrable
Securities) with respect to any securities of the Company that are granted in
accordance with the terms of this Section 3. Such new rights must either (i) if
identical to those granted herein (through being designated as "Purchaser
Shares" hereunder),be approved in writing by Holders of a majority of the then
Registrable Securities, or (ii) if not identical to those granted herein,
nevertheless not be inconsistent with the terms of this Agreement while
providing that (a) with respect to demand registration rights granted to other
persons, the Holders of Registrable Securities have a piggy-back right upon the
exercise of such new rights and shall be included in such registration statement
on the same terms and conditions as the holders of the new rights, subject to
possible reduction at the initiative of the managing underwriter or underwriters
on terms substantially equivalent to those set forth in Section 2.1 and with
respect to piggy-back rights granted to other persons, such other persons'
rights to be included in a registration statement shall not be superior to the
rights of the Holder. The Company may grant registration rights that would
permit any person the right to piggy-back or may itself exercise the right to
piggy-back on any Demand Registration, provided that if the managing underwriter
or underwriters of such offering delivers an opinion to the Holders of
Registrable Securities that the total amount of securities which they and the
holders of such new piggy-back rights intend to include in any Demand is so
large as to materially and adversely affect the success of such offering
(including the price at which such securities can be sold), then only the amount
or kind of securities to be offered for the account of holders of such new
piggy-back rights, or the Company if it is exercising piggy-back rights, will be
reduced to the extent necessary to reduce the total amount of securities to be
included in such offering to the amount recommended by the managing underwriter
prior to any reduction in the amount of
15
Registrable Securities to be included; and further provided that if such
offering is not underwritten, then such piggy-back shall only be exercised with
the consent of the Holders of a majority of the Registrable Securities being
offered.
Section 4. Block Sale.
4.1 Restriction.
(a) Subsequent to the Company becoming a reporting company
under the Exchange Act, TMH, TAH and Xxxx each agrees to give the
Company ten (10) days' written notice of the occurrence of an "Event"
as that term is hereinafter defined. For purposes of this Section 2.1,
an Event is any of the following:
(1) A decision by TMH, TAH or Xxxx to sell to one
person shares of Common Stock representing five percent (5%)
or more of the Company's Common Stock (hereinafter a "Block
Sale"), except to the extent that sales are allowed pursuant
to the terms of Section 3.1(c) below;
(2) A decision by TMH, TAH or Xxxx to consider
accepting an unsolicited offer to make a Block Sale to one
person;
(3) A decision by TMH, TAH or Xxxx to request an
investment banker or broker to locate a purchaser for a Block
Sale, except to the extent that sales are allowed pursuant to
the terms of Section 3.1(c) below.
(b) Upon giving notice to the Company of an Event, such Person
providing the notice will meet with the Company to discuss the Event,
including providing the Company with the terms of any solicited or
unsolicited offer to sell received by such Person making the notice,
and the opportunity to make or sponsor a competing offer. Such Person
providing the notice will give notice (a "Termination Notice") to the
Company at the time that the potential transaction leading to the
notice of an Event ceases to be under active consideration by such
Person.
(c) The provisions of paragraph 3.1(a) will not apply to limit
the ability of TMH, TAH or Xxxx (i) to sell its holdings of the
Company's Common Stock so long as such sales comply with the volume and
holding period restrictions of Rule 144 of the Commission or (ii) to
sell, transfer or assign all or any portion of its holdings of the
Company's Common Stock to an affiliate or a family member of such
Holder.
4.2 Legend. TMH, TAH and Xxxx acknowledge that the certificates
representing the Common Stock issued to them pursuant to the terms of the
Agreement shall bear the following legend:
16
"The shares of Common Stock represented by this certificate
are subject to the terms of a Stockholders' Agreement by and
among the Company, Xxxx X. Xxxxxxxx, Xxxx X. Xxxxxxxx and Xxxx
Investment Company, dated as of June ___, 1997, which provides
certain limits on the ability of Holder hereof to dispose of
shares of Common Stock as a block. The Holder hereof and any
subsequent Holder (as defined in such Stockholders' Agreement)
by accepting this certificate, ratifies and adopts such
Stockholders' Agreement."
Section 5. Miscellaneous.
5.1 Recapitalizations, Exchanges, etc. The provisions of this
Agreement shall apply, to the full extent set forth herein with respect to the
Registrable Securities, to any and all shares of capital equity of the Company
or any successor or assign of the Company (whether by merger, consolidation,
sale of assets or otherwise) which may be issued in respect of, in exchange for,
or in substitution of the shares of Registrable Securities, in each case as the
amounts of such securities outstanding are appropriately adjusted for any equity
dividends, splits, reverse splits, combinations, recapitalizations and the like
occurring after the date of this Agreement.
5.2 Opinions. When any legal opinion is required to be
delivered hereunder, such opinion may contain such qualifications as may be
customary or otherwise appropriate for legal opinions in similar circumstances.
5.3 Notices. For purposes of this Agreement, notices and all
other communications provided for herein shall be in writing and shall be deemed
to have been duly given when personally delivered or when mailed by United
States registered or certified mail, return receipt requested, postage prepaid,
addressed as follows:
If to Company, to: HV Marine Services, Inc.
0000 Xxxxxxx Xxxxxx, Xxxxx 0000
Xxx Xxxxxxx, Xxxxxxxxx 00000
Attention: Chairman
Attention: President
With a copy to: R. Xxxxx Xxxxxx, Xx., Esq.
Xxxxxxxx Xxxxxxxx & Xxxxxx
000 Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxx 00000
If to Xxxx, to: Xxxx Investment Company
0000 Xxxxxxx Xxxxxx, Xxxxx 0000
Xxx Xxxxxxx, Xxxxxxxxx 00000
Attention: Xxxxxxxxx X. Xxxxxxx
17
If to TMH, to: Xxxx X. Xxxxxxxx
000-X Xxxxx Xxxxxxx Xxxx #000
Xxxxxxxxx, Xxxxxxxxx 00000
If to TAH, to: Xxxx X. Xxxxxxxx
X.X. Xxx 0000
Xxxxxx Xxxx, Xxxxxxxxx 00000
or to such other address as any party may furnish to the others in writing in
accordance herewith, except that notices of changes of address shall be
effective only upon receipt, and that failure to copy legal counsel shall not
invalidate notices otherwise properly given.
5.4 Applicable Law. This contract is entered into under, and
shall be governed for all purposes by, the laws of the State of
Texas; provided
that the General Corporation Law of the State of Delaware shall apply with
respect to corporate law issues.
5.5 Amendment and Waiver. This Agreement may be amended, and
the provisions hereof may be waived, only by a written instrument signed by (i)
the Holders (including Xxxx, TMH and TAH, as applicable) holding a majority of
the Registrable Securities and (ii) the Company. No failure by either party
hereto at any time to give notice of any breach by the other party of, or to
require compliance with, any condition or provision of this Agreement shall be
deemed a waiver of similar or dissimilar provisions or conditions at the same or
at any prior or subsequent time.
5.6 Remedy for Breach of Contract. The parties agree that in
the event there is any breach or asserted breach of the terms, covenants or
conditions of this Agreement, the remedy of the parties hereto shall be at law
and in equity and injunctive relief shall lie for the enforcement of or relief
from any provisions of this Agreement. If any remedy or relief is sought and
obtained by any party against one of the other parties pursuant to this Section
5.6, the other party shall, in addition to the remedy of relief so obtained, be
liable to the party seeking such remedy or relief for the reasonable expenses
incurred by such party in successfully obtaining such remedy or relief,
including the fees and expenses of such party's counsel.
5.7 Severability. It is a desire and intent of the parties
that the terms, provisions, covenants and remedies contained in this Agreement
shall be enforceable to the fullest extent permitted by law. If any such term,
provision, covenant or remedy of this Agreement or the application thereof to
any Person or circumstances shall, to any extent, be construed to be invalid or
unenforceable, in whole or in part, then such term, provision, covenant or
remedy shall be construed in a manner so as to permit its enforceability under
the applicable law to the fullest extent permitted by law. In any case, the
remaining provisions of this Agreement or the application thereof to any Person
or circumstances other than those to which they have been held invalid or
unenforceable, shall remain in full force and effect.
18
5.8 Counterparts. This Agreement may be executed in one or
more counterparts, each of which shall be deemed to be an original, but all of
which together will constitute one and the same Agreement.
5.9 Headings. The section and paragraph headings have been
inserted for purposes of convenience and shall not be used for interpretive
purposes.
5.10 Binding Effect. Unless otherwise provided herein, the
provisions of this Agreement shall be binding upon and inure to the benefit of
the parties hereto and their respective heirs, legal representatives, successors
and permitted assigns, and is not intended to confer upon any other Person any
right or remedies hereunder; provided, however, that a transferee of a Holder
other than as contemplated in (i), (ii) or (iii) of the definition of
Registrable Securities in Section 1, shall be deemed to be a Holder for purposes
of obtaining the benefits or enforcing the rights of a Holder.
5.11 Additional Investors. To the extent that one or more
additional investors shall purchase shares of capital stock of the Company
within 90 days after the date hereof in an amount per investor of at least One
Million Dollars ($1,000,000), such investors shall, from and after the date of
purchase of such securities, be considered "Holders" hereunder entitled to the
benefits as a "Holder" under this Agreement so long as they execute an addendum
adopting this document and agreeing to be bound thereby.
5.12 Entire Agreement; Modification. This Agreement, together
with the other agreements referenced herein, constitutes the entire agreement
and supersedes all prior agreements, understandings, both written and oral,
among the parties with respect to the subject matter hereof. Any modification of
the Agreement will be effective only if it is in writing and signed by each
party whose rights hereunder are affected thereby, provided that any such
modification must be authorized or approved by the Board of Directors of the
Company.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first above written.
HV MARINE SERVICES, INC.
By: /s/ Xxxxxxxxx X. Xxxxxxx
------------------------------------------
Xxxxxxxxx X. Xxxxxxx
Chairman and Chief Executive Officer
XXXX INVESTMENT COMPANY
By: /s/ Xxxxxxxxx X. Xxxxxxx
------------------------------------------
Xxxxxxxxx X. Xxxxxxx
President
19
/s/ Xxxx X. Xxxxxxxx
---------------------------------------------
XXXX X. XXXXXXXX
/s/ Xxxx X. Xxxxxxxx
---------------------------------------------
XXXX X. XXXXXXXX
20
Exhibit A
Holders
Xxxx X. Xxxxxxxx
Xxxx X. Xxxxxxxx
Xxxx Investment Company
R. Xxxxx Xxxxxx, Xx.*
Xxxxx X. Xxxxxx*
Xxxxx Xxxxxxxx
Xxxxxx Xxxxxx
Xxxxxxx X. Xxxxx
Xxxx X. Xxxxxxx
Xxxxxx X. Xxxxx
----------
* Specified Holders for purposes of Section 2.2
