EXHIBIT 4.5
AGREEMENT CONCERNING REGISTRATION RIGHTS
This Agreement Concerning Registration Rights (the "Agreement") is
entered into and made effective as of October 27, 2000 by and between
XXXXXXXX-LEEVAC Marine Services, Inc., a Delaware corporation (the "Company"),
SCF-IV, L.P., a Delaware limited partnership ("SCF"), JOINT ENERGY DEVELOPMENT
INVESTMENTS II LIMITED PARTNERSHIP, a Delaware limited partnership, ("JEDI-II"),
SUNDANCE ASSETS, L.P., a Delaware limited partnership, as successor-in-interest
to Enron Capital Trade & Resources Corp. ("Sundance"), Xxxx X. Xxxxxxxx, Xxxx X.
Xxxxxxxx (collectively, Xxxx and Xxxx Xxxxxxxx are referred to as the
"Hornbecks") and XXXX INVESTMENT COMPANY, a Louisiana corporation ("Xxxx").
WHEREAS, the Company and SCF are entering into that certain
Registration Rights Agreement dated of even date herewith (the "2000 Agreement")
that provides for demand registration rights and piggy-back registration rights
on behalf of SCF and certain other persons; and
WHEREAS, the Company, JEDI-II and Sundance are parties to that certain
Registration Rights Agreement dated June 5, 1998 (the "1998 Agreement"), that
provides for demand registration rights and piggy-back registration rights on
behalf of JEDI-II and Sundance, respectively; and
WHEREAS, the Company, the Hornbecks and Xxxx are parties to that
certain Stockholders' Agreement dated June 5, 1997 (the "1997 Agreement," and
together with the 1998 Agreement and the 2000 Agreement, the "RRAs"), that
provides for demand registration rights and piggy-back registration rights on
behalf of the Hornbecks and Xxxx and certain other persons; and
WHEREAS, SCF, JEDI-II, Sundance, the Hornbecks and Xxxx (each
individually a "Party," and collectively, the "Parties") desire to set forth
certain agreements concerning their respective rights in the event the Company
files a registration statement.
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 to this Agreement
agree as follows:
1. Notwithstanding the terms and conditions contained in the individual
RRAs, any Party electing to participate in a registration as described herein
agrees to be bound by the terms and conditions of this Agreement; provided
however, that nothing in this Agreement shall derogate from or modify the terms
and conditions set forth in the Stockholders' and Warrantholders' Agreement
dated June 5, 1998 among the Company and the other parties thereto.
2. If the Company proposes to file a registration statement under the
Securities Act of 1933, as amended, with respect to an offering by the Company
for its own account, or in response to a demand by any of the Parties under any
provision of the RRAs, 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 Parties and other "Holders" of
"Registrable Securities," as such terms are defined under each of the RRAs, at
least twenty (20) days before the anticipated filing date, and such notice shall
offer such Parties and other Holders the opportunity to register such number of
Registrable Securities as each such Party or other Holder may request (a
"Piggy-back Registration"). Upon notice from the Company to each of the Parties
or other Holders, each Party or other Holder may request a Piggy-back
Registration. In accordance with each of the RRAs, the Company shall use
commercially reasonable efforts to cause the managing underwriter or
underwriters of a proposed underwritten offering to permit the Parties and other
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 or the Party who
demanded registration under one of the RRAs. Notwithstanding the foregoing, if
the managing underwriter or underwriters of such offering delivers a written
opinion to the Company and the Parties that the total amount of securities which
the Company and the Parties and any other Holders intend to include in such
offering is sufficiently large to materially and adversely affect the success of
such offering, then the amount of Registrable Securities to be offered shall be
reduced in accordance with Section 3 hereof.
3. In the event of a registration initiated pursuant to the exercise of
any demand registration rights, whether by a Party or a third party, then (i)
any securities to be registered by any person or entity who is not a "Holder"
under any RRA (other than the party exercising their demand rights) shall be
reduced first, (ii) any securities to be registered by the Company shall then be
reduced prior to effecting any reduction in the number of securities to be
registered by the Parties and the other Holders and (iii) any further reduction
required shall be made pro-rata among the Parties and the other Holders in
proportion to the number of Registrable Securities for which they requested
registration. In the event of a registration not initiated pursuant to the
exercise of any demand registration rights (such as a Company-initiated
registration or a "Company Registration" as contemplated by the 1997 Agreement
and the 2000 Agreement) then (i) any securities to be offered by any person or
entity other than a Party, any other Holder or the Company shall be reduced
first, (ii) any further reduction required shall be made pro-rata among the
Parties and the other Holders in proportion to the number of shares of
Registrable Securities for which they requested registration, and (iii) any
further reduction required shall be made with respect to the securities to be
registered by the Company. The total amount of the reduction shall be the amount
which the managing underwriter reasonably believes is necessary so as not to
materially and adversely affect the success of the offering.
4. Notwithstanding Section 3 hereof, if any RRA is modified in a manner
that increases the number or kind of securities subject to registration, then
with respect to the
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reductions to be effected among the Parties and the other Holders, such
additional securities shall be the first to be excluded from registration when
reductions are effected.
5. The provisions of this Agreement shall be binding upon and inure to
the benefit of the Parties, the Company and those other Holders who elect to
exercise any rights hereunder or to participate in any registration of Company
securities and upon their respective heirs, legal representatives, successors
and assigns, and is not intended to confer upon any other Person any right or
remedies hereunder.
6. 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.
7. Notwithstanding anything else in this Agreement, this Agreement will
only become effective and binding on the parties hereto upon the closing of the
sale by the Company of 8,150,944 shares of the Company's common stock to SCF as
part of a private placement of up to $35,000,000 in common stock.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
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IN WITNESS WHEREOF, the Company and the Parties have executed this
Agreement as of the date first above written.
COMPANY:
XXXXXXXX-LEEVAC MARINE SERVICES, INC.,
a Delaware corporation
By: /s/ Xxxxxxxxx X. Xxxxxxx
---------------------------------------------------
Xxxxxxxxx X. Xxxxxxx
Chief Executive Officer
SCF:
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
JEDI-II:
JOINT ENERGY DEVELOPMENT
INVESTMENTS II LIMITED PARTNERSHIP,
a Delaware limited partnership
By: Enron Capital Management II Limited
Partnership, its general partner
By: /s/ Xxxxx X. Xxxxxx
------------------------------------------
Name: Xxxxx X. Xxxxxx
Title: Vice President
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[SIGNATURE PAGE TO AGREEMENT CONCERNING REGISTRATION RIGHTS]
SUNDANCE:
SUNDANCE ASSETS, L.P.,
a Delaware limited partnership, as successor-in-interest
to Enron Capital Trade & Resources Corp.
By: Ponderosa Assets, L.P., its General Partner
By: Enron Ponderosa Management Holdings, Inc.,
its General Partner
By: /s/ Xxxxxx X. Xxxxxx
----------------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Vice President
HORNBECKS:
/s/ Xxxx X. Xxxxxxxx
---------------------------------------------------------
Xxxx X. Xxxxxxxx
/s/ Xxxx X. Xxxxxxxx
---------------------------------------------------------
Xxxx X. Xxxxxxxx, by
Xxxx X. Xxxxxxxx,
Attorney-in-Fact
XXXX:
XXXX INVESTMENT COMPANY,
a Louisiana corporation
By: /s/ Xxxxxxxxx X. Xxxxxxx
------------------------------------------------------
Name: Xxxxxxxxx X. Xxxxxxx
Title: President
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