Exhibit 4.6
STOCKHOLDERS AGREEMENT
This Stockholders Agreement (this "Agreement") dated as of October 27, 2000
is by and among SCF-IV, L.P., a Delaware limited partnership ("SCF"), Xxxx
Investment Company, a Louisiana corporation ("CIC"), Xxxx X. Xxxxxxxx, Xxxx X.
Xxxxxxxx (collectively, Xxxx and Xxxx Xxxxxxxx are referred to as the
"Hornbecks") and XXXXXXXX-LEEVAC Marine Services, Inc., a Delaware corporation
(the "Company").
WHEREAS, the Company and SCF have entered into a Subscription Agreement
(the "Subscription Agreement") regarding the sale of Common Stock (as defined
herein) of the Company; and
WHEREAS, the Company and SCF have entered into that certain Registration
Rights Agreement (the "Registration Rights Agreement") of even date herewith;
and
WHEREAS, the Company made certain representations and warranties in the
Subscription Agreement and granted SCF certain demand registration rights in
Section 2.2 of the Registration Rights Agreement in partial consideration for
the provisions of this Agreement; and
WHEREAS, the parties desire to set forth their agreement with respect to
certain matters relating to the transfer and voting of shares of Common Stock
and the preemptive rights of SCF;
NOW, THEREFORE, in consideration of the foregoing, the mutual covenants and
agreements contained herein and other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the parties hereto
agree as follows:
1. Definitions. Capitalized terms used herein without definition shall have
the meanings given them in the Securities Purchase Agreement. The following are
defined terms within this Agreement:
"Affiliate" of any specified Person means any other Person other than
the Company directly or indirectly controlling or controlled by or under
direct or indirect common control with such specified Person. For the
purposes of this definition, "control," when used with respect to any
Person, means the power to direct the management and policies of such
Person, directly or indirectly, whether through the ownership of voting
securities, by contract or otherwise, and the terms "controlling" and
"controlled" have meanings correlative to the foregoing.
"Business Day" means a day that is not a Saturday, a Sunday or a day
on which banking institutions in New Orleans, Louisiana are not required to
be open for business.
"Capital Stock" of any Person means any and all shares, interests,
participation, or other equivalents (however designated) of, or rights,
warrants, or options to purchase, corporate stock or any other equity
interest (however designated) of or in such Person.
"CIC" has the meaning specified therefor in the preamble to this
Agreement.
"Common Stock" shall mean common stock, par value $.01, of the Company
and
all equity securities received in connection with any stock split, stock
dividend, reorganization, recapitalization, merger or consolidation of the
Company with or into another entity or a similar event. All references
herein to Common Stock owned by a Stockholder shall include: (i) the
community interest or similar marital property interest, if any, of a
spouse of such Stockholder in such Common Stock; and (ii) all of the equity
interests and voting rights in the Company which are reflected by Common
Stock ownership.
"Company" has the meaning specified therefor in the preamble of this
Agreement.
"Exchange Act" shall mean the Securities Exchange Act of 1934, as
amended, and the rules and regulations promulgated thereunder.
"Initial Public Offering" shall mean (i) an underwritten public
offering of Common Stock pursuant to an effective registration statement
filed under the Securities Act (other than any registration statement on
Form S-4 or S-8 or any forms succeeding thereto, for purposes permissible
under such forms as of the date hereof) wherein the aggregate net proceeds
(after deducting all costs, discounts, commissions and other expenses of
the offering) is at least $25,000,000, or (ii) a merger or other business
combination if, following the consummation of such merger or business
combination, the Common Stock is registered under the Exchange Act.
"Person" means any natural person, partnership, corporation, and any
other form of business or legal entity.
"Securities Act" shall mean the Securities Act of 1933, as amended,
and the rules and regulations promulgated thereunder.
"Transfer" shall mean any direct or indirect transfer, assignment,
donation, devise, sale, gift, pledge, hypothecation, encumbrance, or other
disposition of any security, or any interest therein, whether voluntary or
involuntary, including without limitation any disposition or transfer as a
part of any liquidation of assets or any reorganization pursuant to the
United States' or any other jurisdiction's bankruptcy law or other similar
debtor relief laws. The term "Transfer," shall also include a transaction
involving a change of ownership interest or voting power of a
Securityholder entered into for the purpose or with the effect of avoiding
the restrictions on the Transfer of the Common Stock provided herein or
other any other provision hereof governing Transfers.
"Transferee" shall mean every Person who acquires Common Stock from
SCF.
2. Preemptive Rights. From and after the date hereof and until the date on
which the Company completes an Initial Public Offering (the "Termination Date"),
SCF shall have a preemptive right to purchase its proportionate share of any
additional shares of Capital Stock issued by the Company (other than (a) shares
issued pursuant to plans for the benefit of employees, consultants, or directors
of the Company or any of its subsidiaries (b) shares issued pursuant to warrants
to purchase Common Stock outstanding on the date hereof and (c) shares issued
otherwise than for cash), at the same price and on the same terms as the shares
to be sold
by the Company. In determining the number of shares SCF shall have a right to
purchase in any issuance of shares by the Company, the number of shares
outstanding shall be determined on a fully diluted basis and the number of
shares SCF shall be entitled to purchase shall be calculated by multiplying the
total number of shares of Capital Stock to be issued in such issuance by a
fraction the numerator of which shall be the aggregate number of shares of
Common Stock then owned by SCF that were acquired pursuant to the Subscription
Agreement or this Section 2 and the denominator of which shall be the total
shares of Common Stock then outstanding or issuable pursuant to then outstanding
options, warrants and convertible securities. The Company shall notify SCF in
writing at least 10 Business Days prior to the issuance of any shares of Capital
Stock that is to occur prior to the Termination Date. The Company may sell to
others the securities offered to SCF but not subscribed by SCF within 10
Business Days after the receipt of such offer, during a period not to exceed 60
Business Days after the receipt by SCF of such offer. Thereafter, any issuance
by the Company must again be preceded by an offer to SCF. SCF shall be entitled
to delay the purchase of the securities for which it has subscribed for up to 15
Business Days.
3. Standstill.
(a) After the date hereof, SCF will not, and SCF and X. X. Xxxxxxx &
Associates Incorporated ("XXXX") will cause their direct or indirect
majority owned entities not to, acquire, either directly or indirectly, any
voting securities of the Company other than pursuant to Section 2 hereof,
unless such acquisition has been approved in advance by the Board of
Directors of the Company; provided that SCF may acquire such additional
voting securities of the Company as long as, after giving effect to such
acquisition, the percentage of the Company's outstanding voting securities
owned by SCF does not exceed 22.1% of the Company's securities on a fully
diluted basis, as such percentage has been subsequently decreased by any
issuances of capital stock by the Company. Notwithstanding any decrease
referred to in the final clause of the preceding sentence, SCF shall be
entitled (provided it does not solicit such purchases) to purchase shares
of capital stock of the Company that are offered to it for purchase so long
as, upon consummation of any such purchases, the percentage of the
Company's outstanding voting securities owned by SCF on a fully diluted
basis would not exceed 20%. SCF will not act together with any other
person(s) so that, were such rule applicable, SCF would be deemed to be a
beneficial owner of such securities under Rule 13d-5(b)(1) where such
actions have a purpose or effect of changing control of the Company.
Notwithstanding the foregoing, nothing herein shall affect the ability of a
director of the Company, SCF or XXXX to fulfill applicable fiduciary
duties.
4. Competing Offer. SCF agrees to give the Company within ten (10) days
following such occurrence written notice of the occurrence of an "Event" as that
term is hereinafter defined. For purposes of this Section 4, an Event is any of
the following:
(a) A decision by SCF to sell to one person, or group of persons
acting in concert, shares of Common Stock representing five percent (5%) or
more of the Company's Common Stock (hereinafter a "Block Sale");
(b) A decision by SCF to consider accepting an unsolicited offer to
make a Block Sale to one person or group of persons acting in concert;
(c) A decision by SCF to request an investment banker or broker to
locate a purchaser for a Block Sale.
Upon giving notice to the Company of an Event, SCF will meet with the Company to
discuss the Event and provide the Company with the terms of any solicited or
unsolicited offer to sell received by SCF, and the opportunity to make or
sponsor a competing offer. Ten (10) days after such meeting or if the Company
indicates it is not interested in such a meeting or if the Company is unwilling
to meet SCF within five (5) days after the giving of notice by SCF, SCF shall be
entitled to sell its shares of Common Stock to any person in SCF's sole
discretion subject to the other provisions of this Agreement. SCF 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 SCF. If a new or revived potential transaction constituting an
Event occurs within 90 days after the giving of such Termination Notice and SCF
gives notice of such an Event to the Company within that 90 day period, then the
ten (10) day notice requirement will again be applicable. If the Company
breaches its obligation to effect a Special Demand Registration under the terms
of the Registration Rights Agreement, the provisions of this Section 4 shall
terminate.
5. Transfers of Common Stock. SCF may not Transfer any of its Common Stock
to any Person who is, either directly or indirectly through one or more
subsidiaries, a competitor of the Company, or affiliate of such competitor,
engaged in the business of operating marine vessels; provided that following a
public offering of shares of Common Stock by the Company, sales in "brokers'
transactions" within the meaning of Section 4(4) of the Securities Act of 1933,
pursuant to an underwritten offering or otherwise, to the extent SCF does not
knowingly sell to a competitor, shall not be subject to this prohibition. The
Company agrees to notify SCF within three (3) Business Days following any
request from SCF addressed to the attention of the President and/or the Chief
Executive Officer regarding whether a prospective purchaser of Common Stock
would constitute such a competitor.
6. Tag-Along Rights.
(a) For purposes of this Agreement, the following shall constitute a
"Triggering Event":
The receipt by Xxxx X. Xxxxxxxx, Xxxxxxxxx X. Xxxxxxx or SCF (the
"Potential Sellers") from any person or entity of a bona fide written
offer to purchase or otherwise acquire for a valuable consideration
any Common Stock held by Xxxx X. Xxxxxxxx, Xxxxxxxxx X. Xxxxxxx or
SCF, respectively, that such person desires to accept (a "Purchase
Offer").
Upon the occurrence of a Triggering Event, the recipient of a Purchase
Offer shall promptly give notice to the other Potential Sellers of the
occurrence of the Triggering Event together with a copy of the offer
executed by the offeror (a "Trigger Notice").
(b) Upon the occurrence of a Triggering Event, the following
provisions shall apply.
(i) If Xxxx X. Xxxxxxxx and/or Xxxxxxxxx X. Xxxxxxx is the
recipient of a Purchase Offer, SCF shall have the right and option to
participate along with either or both of Xx. Xxxxxxxx or Xx. Xxxxxxx,
as sellers, in the sale of Common Stock pursuant to a Purchase Offer
received by Xx. Xxxxxxxx or Xx. Xxxxxxx or both, which right and
option shall be exercised by delivering written notice to such effect
to the Potential Seller(s) that provided the Trigger Notice within 15
days after the date of the Trigger Notice. SCF and each of the
Potential Sellers that provided the Trigger Notice shall be entitled
to sell shares of Common Stock pursuant to the Purchase Offer on the
terms and conditions set forth on the Purchase Offer and in a quantity
calculated by multiplying (X) the total number of shares of Common
Stock that are subject to the Purchase Offer by (Y) a fraction, the
numerator of which is equal to the number of shares of Common Stock
owned by such Potential Seller and the denominator of which is equal
to the number of shares of Common Stock owned by all the Potential
Sellers desiring to sell in the Purchase Offer. In such circumstances,
the Potential Seller(s) providing the Trigger Notice shall not sell
any of the Common Stock which it owns pursuant to the Purchase Offer
unless SCF is permitted to participate in the sale as provided herein.
(ii) If SCF, in compliance with its other contractual obligations
hereunder, including restrictions on the transfer of its Common Stock,
is the recipient of a Purchase Offer, Xxxx X. Xxxxxxxx and Xxxxxxxxx
X. Xxxxxxx shall have the right and option to participate along with
SCF in the sale of the Common Stock pursuant to the Purchase Offer,
which right and option shall be exercised by delivering written notice
to such effect to SCF within fifteen (15) days after the date of the
Trigger Notice. In such event, SCF and each of the other Potential
Sellers that elects to participate in such sale shall be entitled to
sell shares of Common Stock pursuant to the Purchase Offer on the
terms and conditions set forth in the Purchase Offer and in a quantity
calculated by multiplying (X) the total number of shares of Common
Stock that are subject to the Purchase Offer by (Y) a fraction, the
numerator of which is equal to the number of shares of Common Stock
owned by such Potential Seller and the denominator of which is equal
to the number of shares of Common Stock owned by all the Potential
Sellers desiring to sell in the Purchase Offer; provided, however,
that for the purposes of this subsection 6(b)(ii) and the
determination of the applicable percentage interests, each of Xx.
Xxxxxxxx and Xx. Xxxxxxx shall be deemed to own only 35% of the shares
that they own on the date of such calculation, including shares deemed
owned pursuant to clause (iii) below. SCF shall not be entitled to
sell any of its Common Stock pursuant to the Purchase Offer unless
each electing Potential Seller is permitted to participate in the sale
as provided herein.
(iii) For purposes of this Section 6, Xx. Xxxxxxx shall be deemed
to own 1/3 of the shares owned by Xxxx Investment Company in addition
to those shares owned by him directly. Xx. Xxxxxxx agrees to cause
Xxxx Investment Company to comply with this Section to allow Potential
Sellers to tag-along with sales of shares of Common Stock by Xxxx
Investment Company to the extent such shares to be sold by Xxxx
Investment Company are attributable to Xx. Xxxxxxx'x 1/3 interest in
Xxxx Investment Company.
(iv) The rights and obligations set forth in this Section 6 shall
terminate upon the Company's Initial Public Offering.
7. Corporate Governance Matters.
(a) Designation of Directors. The Company agrees that, so long as SCF
owns at least 5% of the outstanding Common Stock (or other applicable
voting securities of the Company, or, prior to the Initial Public Offering,
so long as it owns at least 80% of the Common Stock acquired pursuant to
the Subscription Agreement), SCF shall have the right to designate one (1)
director to the Board of Directors of the Company. SCF recognizes and
acknowledges that pursuant to that certain Voting Agreement between the
Company, Xxxx and the Hornbecks dated June 5, 1997, as amended by the
Amendment to Voting Agreement between the Company, Xxxx and the Hornbecks
dated June 5, 1998, the Hornbecks, collectively, and Xxxx each have the
right to designate an equal number of directors, that number being two (2)
each as of the date hereof.
(b) Vacancies and Removals. The Company and SCF agree that any
designee specified in (a) above may be removed only by the party
designating such director, and any vacancy resulting from the resignation,
removal or death of any director designated by a party hereto may be filled
only by a designee of the party designating such director. The Company, the
Hornbecks, Xxxx and SCF shall take no action to remove any such director
designated by any party hereto or to fill any such vacancy, except as
provided in this Agreement.
(c) Stockholder Action. The Hornbecks and Xxxx hereby agree, and Xx.
Xxxxxxx agrees to cause Xxxx Investment Company to vote their respective
shares of Common Stock (and to execute any requested written consent in
lieu of a meeting) from time to time as may be necessary to elect the
designee of SCF to the Board of Directors and to take any other action
necessary to accomplish the purposes of this Section; provided that the
Hornbecks', Cari's and Xx. Xxxxxxx'x obligations under this paragraph shall
terminate if, at any time following an Initial Public Offering, SCF ceases
to own more than 5% of the then outstanding shares of Common Stock. SCF
hereby agrees to vote its shares of Common Stock (and to execute any
requested written consent in lieu of a meeting) from time to time as may be
necessary to elect two (2) designees of the Hornbecks and two (2)
designees of Xxxx to the Board of Directors, and to take any other action
necessary to accomplish the purposes of this Section; provided that SCF's
obligation under this paragraph shall terminate if, at any time following
an Initial Public Offering, SCF ceases to own more than 5% of the then
outstanding shares of Common Stock.
8. Legend on Certificate; Stop Transfer Orders. SCF agrees to the placement
of a conspicuous legend on all certificates representing shares of Common Stock
indicating that such securities may not be Transferred except in accordance with
this Agreement and to the entry of a stop transfer order with the transfer agent
for such securities against the transfer of such securities except in accordance
with this Agreement. Such legend shall be substantially in the following form:
BY THE TERMS OF A STOCKHOLDERS AGREEMENT DATED __________, 2000 AMONG
CERTAIN STOCKHOLDERS AND THE CORPORATION (THE "STOCKHOLDER'S AGREEMENT"),
CERTAIN RESTRICTIONS HAVE BEEN PLACED ON THE TRANSFER AND VOTING OF THE
SHARES REPRESENTED BY THIS CERTIFICATE. NEITHER THESE SECURITIES NOR ANY
INTEREST HEREIN MAY BE TRANSFERRED, BY MEANS OF A DIRECT OR INDIRECT SALE,
ASSIGNMENT, DONATION, TRANSFER, DEVISE, PLEDGE, HYPOTHECATION, ENCUMBRANCE
OR OTHER DISPOSITION OF LEGAL TITLE OR BENEFICIAL INTEREST HEREIN, EXCEPT
IN ACCORDANCE WITH THE STOCKHOLDERS AGREEMENT. A COPY OF THE STOCKHOLDERS
AGREEMENT HAS BEEN PLACED ON FILE BY THE CORPORATION AT ITS PRINCIPAL PLACE
OF BUSINESS OR REGISTERED OFFICE AND IS AVAILABLE FOR INSPECTION.
9. Miscellaneous.
(a) Termination. Except as otherwise set forth herein and except for
Section 5 hereof which shall survive for so long as SCF and its affiliates
own at least 5% of the Company's Common Stock, the terms of this Agreement
shall terminate on the closing of an Initial Public Offering.
(b) Assignment; Successors and Assigns. This Agreement is not
assignable by SCF. This Agreement shall inure to the benefit of and be
binding upon the successors of the parties hereto.
(c) Arbitration. Any controversy, dispute or claim arising out of or
related to this Agreement (a "Dispute") shall be settled by arbitration in
accordance with the Commercial Arbitration Rules of the American
Arbitration Association, by an arbitrator mutually agreed to by the
parties. In the event the parties are unable to agree to the selection of
an arbitrator within 10 days after the written notification by either party
to this Agreement of the commencement of a Dispute, each party shall
appoint one arbitrator, who shall be an impartial person. Those two persons
shall select a third person to serve as the arbitrator. Any arbitration
shall be held in New Orleans, Louisiana within 90 days of the appointment
of the arbitrator.
The decision by the arbitrator shall be final and binding on each party.
The arbitrator shall execute and deliver to each party its decision in
writing. Judgment upon the award, if any, rendered by the arbitrator may be
entered in any court having jurisdiction over the parties. No award by the
arbitrator shall assess consequential, exemplary or punitive damages, but
may assess the arbitration costs and expenses, including without
limitation, attorneys fees of the parties, in a manner deemed equitable by
the arbitrator, taking into account the arbitration decision. The parties
to any Dispute shall maintain the confidentiality of any Dispute and any
related arbitration proceeding for a period of 18 months, unless such
disclosure is required by law and except to the extent either party shall
reasonably designate in writing any information as being subject to
confidentiality for a longer period, in which event the obligation to
maintain confidentiality shall not terminate but shall continue for the
period specified by such party. Notwithstanding the foregoing, the
obligation of confidentiality specified herein shall not include any
information which (i) is or becomes generally available to the public
through no fault of the party bound by such obligation of confidentiality,
(ii) was known by such party at the time of disclosure or is thereafter
acquired from a source that was not known after inquiry to be prohibited
from making such disclosure or (iii) is independently developed by such
party.
(d) Counterparts. This Agreement may be executed in any number of
counterparts and by different parties hereto in separate counterparts, each
of which counterparts, when so executed and delivered, shall be deemed to
be an original and all of which counterparts, taken together, shall
constitute but one and the same Agreement.
(e) Headings. The headings in this Agreement are for convenience of
reference only and shall not limit or otherwise affect the meaning hereof.
(f) Choice of Law. The laws of the State of Delaware shall govern this
Agreement without regard to principles of conflict of laws.
(g) Saving Clause. Any provision of this Agreement that is prohibited
or unenforceable in any jurisdiction shall, as to such jurisdiction, be
ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions hereof or affecting or impairing the
validity or enforceability of such provision in any other jurisdiction.
(h) Integrated Agreement. This Agreement, together with the
Subscription Agreement and the documents and instruments to be executed in
connection therewith, is intended by the parties as a final expression of
their agreement and intended to be a complete and exclusive statement of
the agreement and understanding of the parties hereto in respect of the
subject matter contained herein. This Agreement, the Subscription Agreement
and the documents and instruments to be executed in connection therewith
supersede all prior agreements and understandings between the parties with
respect to such subject matter.
(i) Amendment. This Agreement may be amended only by means of a
written amendment signed by all of the parties hereto.
(j) Notices. All notices provided for hereunder shall be given by
telecopy (confirmed by overnight delivery), air courier guaranteeing
overnight delivery or personal delivery at the following addresses:
XXXXXXXX-LEEVAC Marine Services, Inc.
000 Xxxxx Xxxxxxxx Xxxxxxxxx
Xxxxxxxxxx, Xxxxxxxxx 00000
Attention: Xxxxxxxxx X. Xxxxxxx
Xxxx Investment Company
0000 Xxxxxxx Xxxxxx, Xxxxx 0000
Xxx Xxxxxxx, Xxxxxxxxx 00000
Attention: Xxxxxxxxx X. Xxxxxxx
Telecopier: 000-000-0000
Xxxx X. Xxxxxxxx
c/x XXXXXXXX-LEEVAC Marine Services, Inc.
000 Xxxxx Xxxxxxxx Xxxxxxxxx
Xxxxxxxxxx, Xxxxxxxxx 00000
Telecopier: 000-000-0000
Xxxx X. Xxxxxxxx
c/x XXXXXXXX-LEEVAC Marine Services, Inc.
000 Xxxxx Xxxxxxxx Xxxxxxxxx
Xxxxxxxxxx, Xxxxxxxxx 00000
Telecopier: 000-000-0000
or to such other address as any such party may designate by notice in the
manner provided above. All such notices shall be deemed to have been
delivered and received at the time delivered by hand, if personally
delivered, when receipt acknowledged, if telecopied, and on the next
business day, if timely delivered to an air courier guaranteeing overnight
delivery.
(k) Authority. Each signatory hereto signing in a representative
capacity represents and warrants to every party that his principal has duly
authorized him to execute this Agreement on its behalf and that he has the
power to bind his principal to this Agreement by such signature.
(l) Effective and Binding. Notwithstanding anything else in this
Agreement, this Agreement will only become effective and binding on the
parties hereto upon the closing under the Subscription Agreement of the
sale of 8,150,944 shares of Common Stock to SCF.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
IN WITNESS WHEREOF, the parties hereto have executed this Agreement on the
date first written above.
XXXXXXXX-LEEVAC MARINE SERVICES, INC.
By: /s/ Xxxxxxxxx X. Xxxxxxx
Name: Xxxxxxxxx X. Xxxxxxx
Title: Chief Executive Offices
SCF-IV, L.P.
a Delaware limited partnership
By: SCF-IV, G.P., Limited Partnership,
its general partner
By: X. X. Xxxxxxx & Associates
Incorporated, its general partner
By: /s/ Xxxxxxx X. XxXxxx
Xxxxxxx X. XxXxxx
Managing Director
XXXX INVESTMENT COMPANY
By: /s/ Xxxxxxxxx X. Xxxxxxx
Name: Xxxxxxxxx X. Xxxxxxx
Title: President
/s/ Xxxx X. Xxxxxxxx
Xxxx X. Xxxxxxxx
/s/ Xxxx X. Xxxxxxxx
Xxxx X. Xxxxxxxx, by
Xxxx X. Xxxxxxxx,
Attorney-in-Fact
[Signature Page to Stockholders Agreement]
ACKNOWLEDGED AND AGREED TO
solely for purposes of being bound by Section 3 hereof.
X. X. XXXXXXX & ASSOCIATES INCORPORATED
By: /s/ Xxxxxxx X. XxXxxx
Xxxxxxx X. XxXxxx
Managing Director
[Signature Page to Stockholders Agreement]
