EXHIBIT 10.14
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REGISTRATION RIGHTS AGREEMENT
AMONG
HIGHWOOD PARTNERS, X.X.
XXXXXXXX INTERNATIONAL, L.P.
AND
HORIZON OFFSHORE, INC.
Dated as of December 4, 1997
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REGISTRATION RIGHTS AGREEMENT
This Registration Rights Agreement (this "Agreement") is entered into this
4th day of December 1997, by and among Horizon Offshore, Inc., a Delaware
corporation ("Horizon"), and Highwood Partners, L.P., a Delaware limited
partnership, ("Highwood"), and Westgate International L.P., a Cayman Islands
exempted limited partnership ("Westgate")
W I T N E S S E T H:
WHEREAS, Highwood and Westgate were the original stockholders of Horizon,
have funded its capital requirements and currently own all of the issued and
outstanding shares of common stock of Horizon; and
WHEREAS, Horizon desires to grant certain registration rights to Highwood
and Westgate as set forth herein.
NOW, THEREFORE, in consideration of the mutual promises and covenants
herein contained, the parties hereto agree as follows:
Section 1. Defined Terms. The following capitalized terms when used in
this Agreement shall have the following meanings:
"Common Stock" means the common stock, $1.00 par value per share, of
Horizon.
"Demand Registration" means a Demand Registration as defined in Section
2(a).
"Exchange Act" means the Securities Exchange Act of 1934, as amended.
"Holder" means Highwood and Westgate and any of their respective permitted
successors and assigns as holders of Registrable Securities.
"Piggyback Registration" means a Piggyback Registration as defined in
Section 2(b).
"Registrable Securities" means (a) the Common Stock held by Highwood and
Westgate on the date hereof and (b) any other securities issued by Horizon after
the date hereof with respect to such Common Stock (and with respect to the
Common Stock generally) by means of exchange, reclassification, dividend,
distribution, split up, combination, subdivision, recapitalization, merger,
spin-off, reorganization or otherwise; provided, however, (i) such securities
shall have been sold in satisfaction of all applicable resale provisions of Rule
144 under the Securities Act; (ii) as expressed in an opinion of counsel
delivered to and satisfactory to Horizon and the transfer agent for the Common
Stock that such securities can be sold without any restriction under Rule 144(k)
under the Securities Act and the transfer of such securities does not require
registration under the Securities Act, or (iii) such securities cease to be
issued and outstanding for any reason.
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"Requesting Holders" means Holders requesting the filing of a Registration
Statement pursuant to Section 2(a).
"SEC" means the Securities and Exchange Commission.
"Securities Act" means the Securities Act of 1933, as amended.
"Underwriter" means a securities dealer who purchases any Registrable
Securities as principal and not as part of such dealer's market-making
activities.
Section 2. Registration Rights.
(a) Demand Registration. (i) At any time commencing 185 days after
the date that the Common Stock is registered under Sections 12(b) or (g) of the
Exchange Act, the Holders of a majority of the Registrable Securities (the
"Requesting Holders") may at any time and from time to time make a written
request for registration under the Securities Act of not less than 5% of the
outstanding Common Stock (a "Demand Registration"); provided that Horizon shall
not be obligated to effect more than one Demand Registration in any 12-month
period or more than an aggregate of three Demand Registrations pursuant to this
Section 2(a). Such request will specify the number of shares of Registrable
Securities proposed to be sold and will also specify the intended method of
disposition thereof. A registration will not count as a Demand Registration
until it has become effective; provided, however, that a Demand Registration
that is either withdrawn or not declared effective at the Holder's request shall
count as a Demand Registration unless the Holder's also bear all of the expenses
specified in Section 2(e) (as being payable by Horizon) with respect to such
Demand Registration.
(ii) If the Requesting Holders so elect, the offering of such
Registrable Securities pursuant to such Demand Registration shall be in the form
of an underwritten offering. The Requesting Holders shall select the managing
Underwriters and any additional investment bankers and managers to be used in
connection with the offering; provided that such managing Underwriters and
additional investment bankers must be reasonably satisfactory to Horizon.
(b) Piggyback Registration. If Horizon proposes to file a
registration statement under the Securities Act with respect to an offering of
Common Stock (i) for Horizon's own account (other than a registration statement
on Form S-4 or S-8 (or any substitute form that may be adopted by the SEC)) or
(ii) for the account of any of its holders of Common Stock (other than the
Holders), then Horizon shall give written notice of such proposed filing to the
Holders as soon as practicable (but in no event less than 10 days before the
anticipated filing date), and such notice shall offer the Holders the
opportunity to register such number of shares of Registrable Securities as the
Holders may request on the same terms and conditions as Horizon's or such
holder's Common Stock (a "Piggyback Registration").
(c) Reduction of Offering. Notwithstanding anything contained herein,
if the managing Underwriter of an offering described in Section 2(b) delivers a
written opinion to Horizon
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that the size of the offering that the Holders, Horizon and any other Persons
whose securities are included in such offering intend to make are such that the
success of the offering would be materially and adversely affected, then the
amount of Registrable Securities to be offered for the account of the Holders
and any other Person shall be reduced to the extent necessary to reduce the
total amount of Common Stock to be included in such offering to the amount
recommended by such managing Underwriter; provided that if Common Stock is being
offered for the account of Persons other than Horizon, then the proportion by
which the amount of such Registrable Securities intended to be offered for the
account of the Holders is reduced shall not exceed the proportion by which the
amount of Common Stock intended to be offered for the account of such other
Persons is reduced.
(d) Filings; Information. Whenever the Requesting Holders request
that any Registrable Securities be registered pursuant to Section 2(a), Horizon
will use its reasonable efforts to effect the registration of such Registrable
Securities as promptly as is practicable, and in connection with any such
request:
(i) Horizon will as expeditiously as possible prepare and file
with the SEC a registration statement on any form for which Horizon then
qualifies and which counsel for Horizon shall deem appropriate and
available for the sale of the Registrable Securities to be registered
thereunder in accordance with the intended method of distribution thereof,
and use its reasonable efforts to cause such filed registration statement
to become and remain effective for a period of not less than 90 days (or
such shorter period which will terminate when all Registrable Securities
covered by such registration statement have been sold); provided that if
Horizon shall furnish to the Requesting Holders a certificate signed by
Horizon's Chairman of the Board stating that in his good faith judgment it
would be detrimental or otherwise disadvantageous to Horizon or its
stockholders for such a registration statement to be filed as expeditiously
as possible, Horizon shall have a period of not more than 120 days within
which to file such registration statement measured from the date of
Horizon's receipt of the Requesting Holders' request for registration in
accordance with Section 2(a).
(ii) Horizon will, if requested, prior to filing such
registration statement or any amendment or supplement thereto, furnish to
the Requesting Holders and each applicable managing Underwriter, if any,
copies thereof, and thereafter furnish to the Requesting Holders and each
such Underwriter, if any, such number of copies of such registration
statement, amendment and supplement thereto (in each case including all
exhibits thereto and documents incorporated by reference therein) and the
prospectus included in such registration statement (including each
preliminary prospectus) as the Requesting Holders or each such Underwriter
may reasonably request in order to facilitate the sale of the Registrable
Securities.
(iii) After the filing of the registration statement, Horizon
will promptly notify the Requesting Holders of any stop order issued or, to
Horizon's knowledge,
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threatened to be issued by the SEC and take all reasonable actions required
to prevent the entry of such stop order or to remove it if entered.
(iv) Horizon will endeavor to qualify the Registrable Securities
for offer and sale under such other securities or blue sky laws of such
jurisdictions in the United States as the Requesting Holders reasonably
request; provided that Horizon will not be required to (A) qualify
generally to do business in any jurisdiction where it would not otherwise
be required to qualify but for this subparagraph 2(d)(iv), (B) subject
itself to taxation in any such jurisdiction or (C) consent to general
service of process in any such jurisdiction.
(v) Horizon will as promptly as is practicable notify the
Requesting Holders at any time when a prospectus relating to the sale of
the Registrable Securities is required by law to be delivered in connection
with sales by an Underwriter or dealer, of the occurrence of any event
requiring the preparation of a supplement or amendment to such prospectus
so that, as thereafter delivered to the purchasers of such Registrable
Securities, such prospectus will not contain an untrue statement of a
material fact or omit to state any material fact required to be stated
therein or necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading and promptly make
available to the Requesting Holders and to the Underwriters any such
supplement or amendment. The Requesting Holders agree that, upon receipt
of any notice from Horizon of the occurrence of any event of the kind
described in the preceding sentence, the Requesting Holders will forthwith
discontinue the offer and sale of Registrable Securities pursuant to the
registration statement covering such Registrable Securities until receipt
by the Requesting Holders and the Underwriters of the copies of such
supplemented or amended prospectus and, if so directed by Horizon, the
Requesting Holders will deliver to Horizon all copies, other than permanent
file copies then in the Requesting Holders' possession, of the most recent
prospectus covering such Registrable Securities at the time of receipt of
such notice. In the event Horizon shall give such notice, Horizon shall
extend the period during which such registration statement shall be
maintained effective as provided in Section 2(d)(i) by the number of days
during the period from and including the date of the giving of such notice
to the date when Horizon shall make available to the Requesting Holders
such supplemented or amended prospectus.
(vi) Horizon will enter into customary agreements (including an
underwriting agreement in customary form) and take such other actions as
are reasonably required in order to expedite or facilitate the sale of such
Registrable Securities.
(vii) Horizon will furnish to the Requesting Holders and to each
Underwriter a signed counterpart, addressed to the Requesting Holders or
such Underwriter, of an opinion or opinions of counsel to Horizon and a
comfort letter
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or comfort letters from Horizon's independent public accountants, each in
customary form and covering such matters of the type customarily covered by
opinions or comfort letters, as the case may be, as the Requesting Holders
or the managing Underwriter reasonably requests.
(viii) Horizon will make generally available to its security
holders, as soon as reasonably practicable, an earnings statement covering
a period of 12 months, beginning within three months after the effective
date of the registration statement, which earnings statement shall satisfy
the provisions of Section 11(a) of the Securities Act and the rules and
regulations of the SEC thereunder.
(ix) Horizon will use its reasonable efforts to cause all such
Registrable Securities to be listed on each securities exchange or over-
the-counter market on which the Common Stock is then listed.
Horizon may require the Requesting Holders promptly to furnish in writing
to Horizon such information regarding the Requesting Holders, the plan of
distribution of the Registrable Securities and other information as Horizon may
from time to time reasonably request or as may be legally required in connection
with such registration.
(e) Registration Expenses. In connection with any Demand Registration
or any Piggyback Registration, Horizon shall pay the following expenses incurred
in connection with such registration: (i) filing fees with the SEC, (ii) fees
and expenses of compliance with securities or blue sky laws (including
reasonable fees and disbursements of counsel in connection with blue sky
qualifications of the Registrable Securities), (iii) printing expenses, (iv)
fees and expenses incurred in connection with the listing of the Registrable
Securities, (v) fees and expenses of counsel and independent certified public
accountants for Horizon and (vi) the reasonable fees and expenses of any
additional experts retained by Horizon in connection with such registration.
Each Holder shall pay any underwriting fees, discounts or commissions
attributable to the sale of Registrable Securities and any out-of-pocket
expenses of the Holders.
(f) Indemnification by Horizon. Horizon agrees to indemnify and hold
harmless each Holder, its officers and directors, and each Person, if any, who
controls each Holder within the meaning of either Section 15 of the Securities
Act or Section 20 of the Exchange Act from and against any and all losses,
claims, damages and liabilities caused by any untrue statement or alleged untrue
statement of a material fact contained in any registration statement or
prospectus relating to the Registrable Securities (as amended or supplemented if
Horizon shall have furnished any amendments or supplements thereto) or any
preliminary prospectus, or caused by 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 such losses, claims,
damages or liabilities are caused by any such untrue statement or omission or
alleged untrue statement or omission based upon information, relating to the
Holder or the plan of distribution furnished in writing to Horizon by or on
behalf of the Holder expressly for use therein; provided that the foregoing
indemnity agreement with respect to any preliminary prospectus shall not inure
to the benefit of the Holder if
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a copy of the most current prospectus at the time of the delivery of the
Registrable Securities was not provided to purchaser and such current prospectus
would have cured the defect giving rise to such loss, claim, damage or
liability. Horizon also agrees to indemnify any Underwriters of the Registrable
Securities, their officers and directors and each person who controls such
Underwriters on substantially the same basis as that of the indemnification of
the Holder provided in this subparagraph.
(g) Indemnification by the Holder. Each Holder agrees to indemnify
and hold harmless Horizon, its officers and directors, and each Person, if any,
who controls Horizon within the meaning of either Section 15 of the Securities
Act or Section 20 of the Exchange Act to the same extent as the foregoing
indemnity from Horizon to the Holder, but only with reference to information
relating to the Holder or the plan of distribution furnished in writing by or on
behalf of the Holder expressly for use in any registration statement or
prospectus relating to the Registrable Securities, or any amendment or
supplement thereto, or any preliminary prospectus. Each Holder also agrees to
indemnify and hold harmless any Underwriters of the Registrable Securities,
their officers and directors and each person who controls such Underwriters on
substantially the same basis as that of the indemnification of Horizon provided
in this subparagraph.
(h) Conduct of Indemnification Proceedings. In case any proceeding
(including any governmental investigation) shall be instituted involving any
Person in respect of which indemnity may be sought pursuant to Section 2(f) or
Section 2(g), such Person (the "Indemnified Party") shall promptly notify the
Person against whom such indemnity may be sought (the "Indemnifying Party") in
writing and the Indemnifying Party shall have the right to assume the defense of
such proceeding and retain counsel reasonably satisfactory to such Indemnified
Party to represent such Indemnified Party and any others the Indemnifying Party
may designate in such proceeding and shall pay the fees and disbursements of
such counsel related to such proceeding. In any such proceeding, any
Indemnified Party shall have the right to retain its own counsel, but the fees
and expenses of such counsel shall be at the expense of such Indemnified Party
unless (i) the Indemnifying Party and the Indemnified Party shall have mutually
agreed to the retention of such counsel or (ii) the named parties to any such
proceeding (including any impleaded parties) include both the Indemnified Party
and the Indemnifying Party and representation of both parties by the same
counsel would be inappropriate due to actual or potential differing interests
between them. It is understood that the Indemnifying Party shall not, in
connection with any proceeding or related proceedings in the same jurisdiction,
be liable for the fees and expenses of more than one separate firm of attorneys
(in addition to any local counsel) at any time for all such Indemnified Parties.
In the case of any such separate firm for the Indemnified Parties, such firm
shall be designated in writing by the Indemnified Parties. The Indemnifying
Party shall not be liable for any settlement of any proceeding effected without
its written consent, but if settled with such consent, or if there be a final
judgment for the plaintiff, the Indemnifying Party shall indemnify and hold
harmless such Indemnified Parties from and against any loss or liability (to the
extent stated above) by reason of such settlement or judgment.
(i) Contribution. If the indemnification provided for in this
Agreement is unavailable to an Indemnified Party in respect of any losses,
claims, damages or liabilities referred
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to herein, then each such 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 or liabilities (i)
in such proportion as is appropriate to reflect the relative benefits received
by Horizon, each Holder and the Underwriters from the offering of the
securities, or (ii) if the allocation provided by clause (i) above is not
permitted by applicable law, in such proportion as is appropriate to reflect not
only the relative benefits referred to in clause (i) but also the relative fault
of Horizon, each Holder and the Underwriters in connection with the statements
or omissions that resulted in such losses, claims, damages or liabilities, as
well as any other relevant equitable considerations. The relative benefits
received by Horizon, each Holder and the Underwriters shall be deemed to be in
the same respective proportions as the total proceeds from the offering (net of
underwriting discounts and commissions but before deducting expenses) received
by each of Horizon and each Holder and the total underwriting discounts and
commissions received by the Underwriters, in each case as set forth in the table
on the cover of the prospectus, bear to the aggregate public offering price of
the securities. The relative fault of Horizon, the Holders and the Underwriters
shall be determined by reference to, among other things, whether the untrue or
alleged untrue statement of a material fact or the omission or alleged omission
to state a material fact relates to information supplied by such party and the
parties' relative intent, knowledge, access to information and opportunity to
correct or prevent such statement or omission.
Horizon and the Holders agree that it would not be just and equitable
if contribution pursuant to this Section 5(i) were determined by pro rata
allocation (even if the Underwriters were treated as one entity for such
purpose) or by any other method of allocation that does not take account of the
equitable considerations referred to in the immediately preceding paragraph.
The amount paid or payable by an Indemnified Party as a result of the losses,
claims, damages or liabilities referred to in the immediately preceding
paragraph shall be deemed to include, subject to the limitations set forth
above, any legal or other expenses reasonably incurred by such Indemnified Party
in connection with investigating or defending any such action or claim.
Notwithstanding the provisions of this Section 5(i), no Underwriter shall be
required to contribute any amount in excess of the amount by which the total
price at which the Securities underwritten by it and distributed to the public
were offered to the public exceeds the amount of any damages which such
Underwriter has otherwise been required to pay by reason of such untrue or
alleged untrue statement or omission or alleged omission, and each Holder shall
not be required to contribute any amount in excess of the amount by which the
net proceeds of the offering (before deducting expenses) received by the Holder
exceeds the amount of any damages which the Holder has otherwise been required
to pay by reason of such untrue or alleged untrue statement or omission or
alleged omission. No person guilty of fraudulent misrepresentation (within the
meaning of Section 11(f) of the Securities Act) shall be entitled to
contribution from any Person who was not guilty of such fraudulent
misrepresentation.
(j) Participation in Underwritten Registrations. No Holder of
Registrable Securities in a registered offering contemplated hereunder shall be
permitted to participate unless such Holder (a) agrees to sell its Registrable
Securities on the basis provided in any underwriting arrangements approved by
the persons entitled hereunder to approve such arrangements and (b) completes
and executes all questionnaires, powers of attorney, indemnities, underwriting
agreements
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and other documents reasonably required under the terms of such underwriting
arrangements and this Section 2.
(k) Rule 144. Horizon covenants that it will file any reports
required to be filed by it under the Securities Act and the Exchange Act and
that it will take such further action as the Holder may reasonably request to
the extent required from time to time to enable the Holder to sell Registrable
Securities without registration under the Securities Act within the limitation
of the exemptions provided by Rule 144 under the Securities Act, as such rule
may be amended from time to time, or any similar rule or regulation hereafter
adopted by the SEC. Upon the request of a Holder Horizon will deliver to the
Holder a written statement as to whether it has complied with such reporting
requirements.
(l) Holdback Agreements. Each Holder agrees not to offer, sell,
contract to sell or otherwise dispose of any Registrable Securities, or any
securities convertible into or exchangeable or exercisable for such securities,
during the 14 days prior to, and during the 180-day period beginning on, the
effective date of such registration statement other than (i) the Registrable
Securities to be sold pursuant to such registration statement, and (ii) any
shares of Common Stock sold upon the exercise of an option or warrant or the
conversion of a security outstanding at such date.
Section 3. Miscellaneous
(a) Notices. Any notice or other communication required or permitted
hereunder shall be in writing or by telephone or facsimile transmission with
subsequent written confirmation, and may be personally served or sent by United
States mail and shall be deemed to have been given upon receipt by the party
notified. For purposes hereof, the addresses of the parties hereto (until
notice of a change thereof is delivered as provided in this Section 3) shall be
as set forth opposite each party's name on the signature page hereof.
(b) Termination. This Agreement will terminate upon the earlier of
(i) the date upon which Horizon and each Holder of Registrable Securities
outstanding on that date mutually agree in writing to terminate this Agreement
and (ii) December 4, 2007.
(c) Transfer of Registration Rights. The rights to cause Horizon to
register securities granted to Holders under Section 2 may be assigned by a
Holder to a transferee or assignee of any Registrable Securities, provided, that
Horizon is given written notice at the time of or within a reasonable time after
said transfer, stating the name and address of such transferee or assignee and
identifying the securities with respect to which such registration rights are
being assigned; and provided further that the registration rights granted by
Horizon in Section 2 may only be transferred to, and the definition of "Holders"
shall only include, transferees who meet either of the following criteria:
such transferee is (i) a holder of 5% or more of the market value of the
Registrable Securities, or (ii) a "qualified institutional buyer" or "accredited
investor" within the meaning of the rules adopted under the Securities Act.
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(d) Waivers and Amendments; Noncontractual Remedies; Preservation of
Remedies. This Agreement may be amended, superseded, cancelled, renewed or
extended, and the terms hereof may be waived, only by a written instrument
signed by Horizon and the Holders of a majority of the Registrable Securities
or, in the case of a waiver, by the party waiving compliance. No delay on the
part of any party in exercising a right, power or privilege hereunder shall
operate as a waiver thereof, nor shall any waiver on the part of any party of
any such right, power or privilege, nor any single or partial exercise of any
such right, power or privilege, preclude a further exercise thereof or the
exercise of any other such right, power or privilege. The rights and remedies
herein provided are cumulative and are not exclusive of any rights or remedies
that any party may otherwise have at law or in equity. The rights and remedies
of any party based upon, arising out of or otherwise in respect of any breach of
any provision of this Agreement shall in no way be limited by the fact that the
act, omission, occurrence or other state of facts upon which any claim of any
such breach is based may also be the subject matter of any other provision of
this Agreement (or of any other Agreement between the parties) as to which there
is no breach.
(e) Severability. If any provision of this Agreement or the
applicability of any such provision to a person or circumstances shall be
determined by any court of competent jurisdiction to be invalid or unenforceable
to any extent, the remainder of this Agreement or the application of such
provision to persons or circumstances other than those for which it is so
determined to be invalid and unenforceable, shall not be affected thereby, and
each provision of this Agreement shall be valid and shall be enforced to the
fullest extent permitted by law. To the extent permitted by applicable law each
party hereto hereby waives any provision or provisions of law which would
otherwise render any provision of this Agreement invalid, illegal or
unenforceable in any respect.
(f) Counterparts. This Agreement may be executed by the parties
hereto in separate counterparts and when so executed shall constitute one
Agreement, notwithstanding that all parties are not signatories to the same
counterpart.
(g) Governing Law. This Agreement shall be governed and construed in
accordance with the laws of the State of Delaware applicable to agreements made
and to be performed entirely within such state.
(h) Successors and Assigns. Subject to Section 3(c), this Agreement
shall be binding upon and inure to the benefit of and be enforceable by the
successors and assigns of the parties hereto.
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IN WITNESS WHEREOF, this Agreement has been executed as of the date first
above written.
Address: HORIZON OFFSHORE, INC.
0000 Xxxx Xxxxxxx, Xxxxx 000
Xxxxxxx, Xxxxx 00000 By: /s/ Xxxx Xxx
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Xxxx Xxx
President
Address: HIGHWOOD PARTNERS, L.P.
By: Highwood Associates, Inc.,
Its General Partner
C/o Horizon Offshore
0000 Xxxx Xxxxxxx, Xxxxx 000
Xxxxxxx, Xxxxx 00000 By: /s/ Xxxxxxxx X. Xxxxxxx
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Name: Xxxxxxxx X. Xxxxxxx
Title: President
Address: WESTGATE INTERNATIONAL, L.P.
By:Martley International, Inc.
C/o Midland Bank Trust Corporation Its Attorney-in-Fact
(Cayman) Limited
P. O. Xxx 0000, By: /s/ Xxxx Xxxxxx
Xxxx Street -------------------------------
Grand Cayman, Name: Xxxx Xxxxxx
Cayman Islands, BVI Title:
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