exv10w3



 






Exhibit 10.3




SUBSCRIPTION AND REGISTRATION RIGHTS AGREEMENT




 






Private Offering

of Shares of

Common Stock




     This Subscription and Registration Rights Agreement (this “Agreement”), made as
of the date set forth below by and between Horizon Offshore, Inc., a Delaware corporation (the
“Company”), and the undersigned (the “Subscriber”), is intended to set forth
certain representations, covenants and agreements between the Company and the Subscriber, with
respect to the offering (the “Offering”) for sale by the Company of shares of Common Stock,
par value $0.00001 per share (the “Common Stock”), as described in the Company’s Private
Placement Memorandum dated December 6, 2005 (the “Memorandum”), a copy of which has been
delivered to Subscriber. The Shares are being offered by the Company through Energy Capital
Solutions, LLC, as placement agent (the “Placement Agent”).



     1. Subscription. Subject to the terms and conditions hereof, the Subscriber hereby
irrevocably subscribes for and agrees to purchase from the Company the number of shares of Common
Stock (the “Shares”) set forth under the Subscriber’s name on the signature page hereto at
a purchase price of $0.38 per share (the “Offering Price”), and the Company agrees to sell
such Shares to the Subscriber at the Offering Price, subject to the Company’s right to sell to the
Subscriber such lesser number of Shares as the Company may, in its sole discretion, deem necessary
or desirable.



     2. Delivery of Subscription Amount; Acceptance of Subscription; Delivery of Shares.
Subscriber understands and agrees that this subscription is made subject to the following terms and
conditions:



     (a) Subscriber understands that separate subscription agreements will be executed with other
Subscribers for up to the maximum number of shares of Common Stock offered to be sold in the
Offering (including any shares subscribed for hereby);



     (b) Contemporaneously with the execution and delivery of this Agreement, Subscriber shall
execute and deliver the Certificate of Accredited Investor Status attached as Exhibit B hereto, and
shall submit payment in the form of a wire to the Company, to hold in a non-interest bearing
account, immediately available funds in the amount equal to the Offering Price multiplied by the
number of Shares for which the Subscriber has subscribed (the “Subscription Amount”) in
accordance with the Subscription Instructions set forth on Exhibit A hereto;



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     (c) The Subscriber’s subscription for Shares shall be deemed to be accepted only when this
Agreement has been signed by an authorized officer of the Company, and the deposit of the
Subscription Amount for clearance will not be deemed an acceptance of this Agreement;



     (d) The Company shall have the right to reject this subscription, in whole or in part and
shall have the right to allocate Shares among subscribers in any manner it may desire;



     (e) The payment of the Subscription Amount (or, in the case of rejection of a portion of the
Subscriber’s subscription, the part of the payment relating to such rejected portion) will be
returned promptly, without interest, if Subscriber’s subscription is rejected in whole or in part
or if the Offering is withdrawn or canceled;



     (f) The Company may, in its sole discretion, terminate the Offering at any time and accept any
subscriptions then in its receipt;



     (g) Certificates representing the Shares purchased will be issued in the name of each
Subscriber within 14 days of the acceptance of the Subscriber’s subscription; and



     (h) The representations and warranties of the Company and Subscriber set forth herein shall be
true and correct as of the date that the Company accepts this subscription.



     3. Terms of Subscription.



     (a) The Placement Agent will receive a servicing fee of $7,500 and a placement management fee
equal to six percent (6%) of the aggregate purchase price of the Shares sold. The Company shall
also pay all expenses in connection with the Offering, except for those expenses that the Placement
Agent has agreed to pay.



     (b) If the Subscriber is not a United States citizen, the Subscriber hereby represents that it
has satisfied itself as to the full observance of the laws of its jurisdiction in connection with
any invitation to subscribe for the Shares or any use of this Agreement, including (i) the legal
requirements within its jurisdiction for the purchase of the Shares, (ii) any foreign exchange
restrictions applicable to such purchase, (iii) any governmental or other consents that may need to
be obtained, and (iv) the income tax and other tax consequences, if any, that may be relevant to
the purchase, holding, redemption, sale or transfer of the Shares. The Subscriber further
represents and warrants that the Subscriber’s subscription and payment for, and his or her
continued beneficial ownership of the Shares, will not violate any applicable securities or other
laws of the Subscriber’s jurisdiction.



     4. Registration Rights.



     (a) Subscriber acknowledges that it is acquiring the Shares for its own account and for the
purpose of investment and not with a view to any distribution or resale thereof within the meaning
of the Securities Act of 1933, as amended (the “Securities Act”). The Subscriber further
agrees that it will not sell, assign or transfer the Shares at any time in violation of the
Securities Act and acknowledges that, in taking unregistered securities, it must continue to bear
the economic risk of its investment for an indefinite period of time because of the fact that the
Shares have not been registered under the Securities Act, and further realizes that the Shares



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cannot be sold unless subsequently registered under the Securities Act or an exemption from
such registration is available. The Subscriber also acknowledges that appropriate legends
reflecting the status of the Shares under the Securities Act may be placed on the face of the
certificates for such shares at the time of their transfer and delivery to the holder thereof.



     (b) The Shares may not be transferred except in a transaction which is in compliance with the
Securities Act. Except as provided hereafter with respect to registration of the Shares, it shall
be a condition to any such transfer that the Company shall be furnished with an opinion of counsel
to the holder of such Shares, reasonably satisfactory to the Company, to the effect that the
proposed transfer would be in compliance with the Securities Act.



     (c) Within 60 days after the last sale of shares of Common Stock in the Offering, the Company
shall use its commercially reasonable efforts to prepare and file with the Securities and Exchange
Commission (the “SEC”), a registration statement on Form S-3 (or other appropriate form or
any replacement thereof) and such other documents as may be necessary in the opinion of counsel for
the Company, and use its commercially reasonable efforts to have such registration statement
declared effective as soon as reasonably practicable after such filing, in order to comply with the
provisions of the Securities Act so as to permit the registered resale of the Shares, for a period
of two (2) years following the last Closing of the Offering by each and every holder of Shares,
except for those holders who designate on the signature page hereto that they do not wish to have
their Shares included in the registration statement. The Shares that are registered for resale
under such registration statement are referred to herein as the “Offering Shares,” and the
Subscribers who are eligible to sell their Offering Shares under such registration statement,
together with their affiliates, are hereafter referred to as “Offering Holders.” The Company will
include in such registration statement (i) the information required under the Securities Act to be
so included concerning the Offering Holders, as provided by the Offering Holders on the signature
pages to this Agreement and the other Subscription and Registration Rights Agreements entered into
in connection with the Offering, including any changes in such information that may be provided by
the Offering Holders in writing to the Company from time to time, and (ii) a section entitled “Plan
of Distribution,” substantially in the form of Exhibit C hereto, that describes the various
procedures that may be used by the Offering Holders in the sale of their Offering Shares.



     (d) Notwithstanding the foregoing provisions of this Section 4, the Company may voluntarily
suspend the effectiveness of any such registration statement for a limited time, which in no event
shall be longer than 60 days in any three month period and no longer than 120 days in any twelve
month period, if the Company has been advised in writing by counsel or underwriters to the Company
that the offering of any Offering Shares pursuant to the registration statement would materially
adversely affect, or would be improper in view of (or improper without disclosure in a prospectus),
a proposed financing, reorganization, recapitalization, merger, consolidation, or similar
transaction involving the Company. The Company shall notify all Offering Holders to such effect,
and, upon receipt of such notice, each such Offering Holder shall immediately discontinue any sales
of Offering Shares pursuant to such Registration Statement until such Offering Holder has received
copies of a supplemented or amended prospectus or until such Offering Holder is advised in writing
by the Company that the then current prospectus may be used and has received copies of any
additional or supplemental filings that are incorporated or deemed incorporated by reference in
such prospectus.



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     (e) If any event occurs that would cause any such registration statement to contain an untrue
statement of a material fact or omit to state a material fact required to be stated therein or
necessary to make the statements contained therein not misleading or causes such registration
statement not to be effective and usable during the period that such registration statement is
required to be effective and usable, the Company shall promptly notify the Offering Holders of such
event and, if requested, the Offering Holders shall immediately cease making offers of Offering
Shares and return all prospectuses to the Company. The Company shall promptly file an amendment to
the registration statement to correct such misstatement or omission and use its commercially
reasonable efforts to cause such amendment to be declared effective as soon as practicable
thereafter. The Company shall promptly provide the Offering Holders with revised prospectuses and,
following receipt of the revised prospectuses, the Offering Holders shall be free to resume making
offers of the Offering Shares.



     (f) Notwithstanding any provision contained herein to the contrary, the Company’s obligation
to include, or continue to include, Offering Shares in any such registration statement under this
Section 4 shall terminate to the extent such shares are eligible for resale under Rule 144(k)
promulgated under the Securities Act.



     (g) If and whenever the Company is required by the provisions of this Agreement to use its
commercially reasonable efforts to effect the registration of the Offering Shares under the
Securities Act for the account of an Offering Holder, the Company will:




          (i) prepare and file with the SEC a registration statement with respect to such
securities and use its commercially reasonable efforts to cause such registration statement
to become and remain effective in accordance with the terms and subject to the conditions
set forth in this Agreement;




          (ii) as promptly as practicable, prepare and file with the SEC such amendments and
supplements to such registration statement and the prospectus used in connection therewith
as may be necessary to keep such registration statement effective and to comply with the
requirements of the Securities Act and the rules and regulations promulgated by the SEC
thereunder relating to the sale or other disposition of the securities covered by such
registration statement; and




          (iii) as promptly as practicable, furnish to each Offering Holder such numbers of
copies of a prospectus, including a preliminary prospectus, complying with the requirements
of the Securities Act, and such other documents as such Offering Holder may reasonably
request in order to facilitate the public sale or other disposition of the Offering Shares
owned by such Offering Holder, but such Offering Holder shall not be entitled to use any
selling materials other than a prospectus and such other materials as may be approved by the
Company, which approval will not be unreasonably withheld.



     (h) Except as provided below in this Section 4, the expenses incurred by the Company in
connection with action taken by the Company to comply with this Section 4, including, without
limitation, all registration and filing fees, printing and delivery expenses, accounting fees, fees
and disbursements of counsel to the Company, consultant and expert fees, premiums for liability
insurance, if the Company chooses to obtain such insurance, obtained in



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connection with a registration statement filed to effect such compliance and all expenses,
including counsel fees, of complying with any state securities laws, shall be paid by the Company.
All fees and disbursements of any counsel, experts, or consultants employed by any Offering Holder
shall be borne by such Offering Holder. The Company shall not be obligated in any way in
connection with any registration pursuant to this Section 4 for any selling commissions or
discounts payable by any Offering Holder to any underwriter or broker of securities to be sold by
such Offering Holder. Subscriber agrees to pay all expenses required to be borne by such Offering
Holder.



     (i) In the event of any registration of shares of Common Stock pursuant to this Section 4, the
Company will indemnify and hold harmless each Offering Holder, its officers, directors and each
underwriter of such securities, and any person who controls such Offering Holder or underwriter
within the meaning of Section 15 of the Securities Act, against all claims, actions, losses,
damages, liabilities and expenses, joint or several, to which any of such persons may become
subject under the Securities Act or otherwise, insofar as such losses, claims, damages, liabilities
or actions arise out of or are based upon any untrue statement of any material fact contained in
any registration statement under which such securities were registered under the Securities Act,
any preliminary prospectus or final prospectus contained therein, or any amendment or supplement
thereof, or arise out of or are based upon the omission to state therein a material fact required
to be stated therein or necessary to make the statements therein, in light of the circumstances
under which they were made, not misleading, and will reimburse such Offering Holder, its officers,
directors and each underwriter of such securities, and each such controlling person or entity for
any legal and any other expenses reasonably incurred by such Offering Holder, such underwriter, or
such controlling person or entity in connection with investigating or defending any such loss,
claim, damage, liability, or action; provided, however, that the Company will not be liable in any
such case to the extent that any such loss, claim, damage, liability or action arises directly out
of or is based primarily upon an untrue statement or omission made in said registration statement,
said preliminary prospectus or said final prospectus, or said amendment of supplement in reliance
upon and in conformity with written information furnished to the Company by such Offering Holder or
such underwriter specifically for use in the preparation thereof; and provided, further however,
that the Company will not be liable in any such case to the extent that any such loss, claim,
damage or liability or action arises directly out of or is based primarily upon an untrue statement
or omission made in any preliminary prospectus or final prospectus if (i) such Offering Holder
failed to send or deliver a copy of the final prospectus or prospectus supplement with or prior to
the delivery of written confirmation of the sale of the Offering Shares, and (ii) the final
prospectus or prospectus supplement would have corrected such untrue statement or omission.



     (j) At any time when a prospectus relating to the Offering is required to be delivered under
the Securities Act, the Company will notify the Offering Holder of the happening of any event, upon
the notification or awareness of such event by an executive officer of the Company, as a result of
which the prospectus included in such registration statement, as then in effect, includes an untrue
statement of material fact or omits to state a material fact required to be stated therein or
necessary to make the statements therein not misleading in light of the circumstances then
existing.



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     (k) In the event of any registration of any securities under the Securities Act pursuant to
this Section 4, Subscriber agrees to indemnify and hold harmless the Company, its officers,
directors and any person who controls the Company within the meaning of Section 15 of the
Securities Act, against any losses, claims, damages, liabilities, or actions, joint or several, to
which the Company, its officers, directors, or such controlling person or entity may become subject
under the Securities Act or otherwise, insofar as such losses, claims, damages, liabilities, or
actions arise out of or are based upon any untrue statement of any material fact contained in any
registration statement under which such securities were registered under the Securities Act, any
preliminary prospectus or final prospectus contained therein, or any amendment or supplement
thereto, or arise out of or are based upon the omission to state therein a material fact required
to be stated therein or necessary to make the statements therein not misleading, in each case to
the extent and only to the extent that any such loss, claim, damage, liability, or action arises
out of or is based upon an untrue statement or omission made in said registration statement, said
preliminary prospectus or said final prospectus or said amendment or supplement in reliance upon
and in conformity with written information furnished to the Company by Subscriber or any affiliate
(as defined in the Securities Act) of Subscriber specifically for use in the preparation thereof.



     (l) Any party entitled to indemnification hereunder will (i) give prompt written notice to the
indemnifying party of any claim with respect to which it seeks indemnification and (ii) unless in
such indemnified party’s reasonable judgment a conflict of interest between such indemnified and
indemnifying parties may exist with respect to such claim, permit such indemnifying party to assume
the defense of such claim with counsel reasonably satisfactory to the indemnified party. If such
defense is assumed, the indemnifying party will not be subject to any liability for any settlement
made by the indemnified party without its consent (which consent may not be unreasonably withheld).
An indemnifying party who is not entitled to, or elects not to, assume the defense of a claim will
not be obligated to pay the fees and expenses of more than one counsel for all parties indemnified
by such indemnifying party with respect to such claim, unless in the reasonable judgment of 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.



     (m) With a view to making available to the Offering Holder the benefits of Rule 144
promulgated under the Securities Act, the Company agrees that it will use its commercially
reasonable efforts to maintain registration of its Common Stock under Section 12 or 15 of the
Securities Exchange Act of 1934, as amended (the “Exchange Act”), and to file with the SEC
in a timely manner all reports and other documents required to be filed by an issuer of securities
registered under the Exchange Act so as to maintain the availability of Rule 144. Upon the request
of any record owner, the Company will deliver to such owner a written statement as to whether it
has complied with the reporting requirements of Rule 144.



     5. Representations and Warranties of the Subscriber. Subscriber hereby represents and
warrants to the Company as follows:



     (a) Subscriber is acquiring the Shares for its own account, for investment and not with a view
to, or for resale in connection with, any distribution or public offering thereof within the
meaning of the Securities Act, and applicable state securities laws.



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     (b) The Subscriber understands that (A) the Shares (1) have not been registered under the
Securities Act or any state securities laws, (2) will be issued in reliance upon an exemption from
the registration and prospectus delivery requirements of the Securities Act pursuant to Section
4(2) and/or Regulation D thereof, (3) will be issued in reliance upon exemptions from the
registration and prospectus delivery requirements of state securities laws which relate to private
offerings and (4) must be held by the Subscriber indefinitely, and (B) the Subscriber must
therefore bear the economic risk of such investment indefinitely unless a subsequent disposition
thereof is registered under the Securities Act and applicable state securities laws or is exempt
therefrom. Subscriber further understands that such exemptions depend upon, among other things,
the bona fide nature of the investment intent of the Subscriber expressed herein. Pursuant to the
foregoing, the Subscriber acknowledges that the certificates representing the Shares acquired by
the Subscriber shall bear a restrictive legend substantially as follows:



“THE SHARES REPRESENTED BY THIS CERTIFICATE ARE SUBJECT TO RESTRICTIONS ON
TRANSFER UNDER THE SECURITIES ACT OF 1933, AS AMENDED, AND STATE
SECURITIES LAWS, AND MAY NOT BE OFFERED FOR SALE, SOLD, ASSIGNED,
TRANSFERRED, PLEDGED OR OTHERWISE DISPOSED OF UNLESS (I) REGISTERED UNDER
THE APPLICABLE SECURITIES LAWS OR (II) AN OPINION OF COUNSEL, WHICH
OPINION AND COUNSEL ARE BOTH REASONABLY SATISFACTORY TO THE COMPANY, HAS
BEEN DELIVERED TO THE COMPANY AND SUCH OPINION STATES THAT THE SHARES MAY
BE TRANSFERRED WITHOUT SUCH REGISTRATION.”



     (c) The Subscriber has knowledge, skill and experience in financial, business and investment
matters relating to an investment of this type and is capable of evaluating the merits and risks of
such investment and protecting the Subscriber’s interest in connection with the acquisition of the
Shares. The Subscriber understands that the acquisition of the Shares is a speculative investment
and involves substantial risks and that the Subscriber could lose the Subscriber’s entire
investment in the Shares. Further, the undersigned has carefully read and considered the matters
set forth under the section entitled “Risk Factors” in the Memorandum, and has taken full
cognizance of and understands all of the risks related to the purchase of the Shares. To the
extent deemed necessary by the Subscriber, the Subscriber has retained, at its own expense, and
relied upon, appropriate professional advice regarding the investment, tax and legal merits and
consequences of purchasing and owning the Shares. The Subscriber has the ability to bear the
economic risks of the Subscriber’s investment in the Company, including a complete loss of the
investment, and the Subscriber has no need for liquidity in such investment.



     (d) The Subscriber has been furnished by the Company all information (or provided access to
all information) regarding the business and financial condition of the Company, its expected plans
for future business activities, the attributes of the Shares and the merits and risks of an
investment in the Shares which the Subscriber has requested or otherwise needs to evaluate the
investment in the Company.



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     (e) Subscriber is in receipt of and has carefully read and understands the following items:




          (i) the Memorandum;




          (ii) the Annual Report on Form 10-K/A of the Company filed with the SEC on or about
August 16, 2005;




          (iii) the Quarterly Reports on Form 10-Q’s of the Company filed with the SEC on or
about August 15, 2005 and November 9, 2005;




          (iv) the Amended Quarterly Report on Form 10-Q/A of the Company filed with the SEC on
or about August 16, 2005;




          (v) the Company’s form of Definitive Information Statement on Schedule 14C filed with
the SEC on or about November 8, 2005




          (vi) the Company’s form of Proxy Statement on Schedule 14A filed with the SEC on or
about August 22, 2005; and




          (vii) the Current Report(s) on form 8-K of the Company filed with the SEC on or about
November 11, 2005.



     (f) In making the proposed investment decision, the Subscriber is relying solely on
investigations made by the Subscriber and the Subscriber’s representatives. The offer to sell the
Shares was communicated to the Subscriber in such a manner that the Subscriber was able to ask
questions of and receive answers from the management of the Company concerning the terms and
conditions of the proposed transaction and that at no time was the Subscriber presented with or
solicited by or through any advertisement, article, leaflet, public promotional meeting, notice or
other communication published in any newspaper, magazine or similar media or broadcast over
television or radio or presented at any seminar or meeting or any other form of general or public
advertising or solicitation.



     (g) The Subscriber acknowledges that the Subscriber has been advised that:




          (i) The Shares offered hereby have not been approved or disapproved by the SEC or any
state securities commission nor has the SEC or any state securities commission passed upon
the accuracy or adequacy of any representations by the Company. Any representation to the
contrary is a criminal offense.




          (ii) In making an investment decision, the Subscriber must rely on its own examination
of the Company and the terms of the Offering, including the merits and risks involved. The
Shares have not been recommended by any federal or state securities commission or regulatory
authority. Furthermore, the foregoing authorities have not confirmed the accuracy or
determined the adequacy of any representation. Any representation to the contrary is a
criminal offense.



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          (iii) The Shares will be “restricted securities” within the meaning of Rule 144 under
the Securities Act, are subject to restrictions on transferability and resale and may not be
transferred or resold except as permitted under the Securities Act and applicable state
securities laws, pursuant to registration or exemption therefrom. The Subscriber is aware
that the Subscriber may be required to bear the financial risks of this investment for an
indefinite period of time.



     (h) The Subscriber acknowledges and is aware that there has never been any representation,
guarantee or warranty made by the Company or any officer, director, employee, agent or
representative of the Company, expressly or by implication, as to (i) the approximate or exact
length of time that the Subscriber will be required to remain an owner of the Shares; (ii) the
percentage of profit and/or amount of or type of consideration, profit or loss to be realized, if
any, as a result of this investment; or (iii) that the limited past performance (if any) or
experience on the part of the Company, or any future expectations will in any way indicate the
predictable results of the ownership of Shares or of the overall financial performance of the
Company.



     (i) The Subscriber agrees to furnish the Company such other information as the Company may
reasonably request in order to verify the accuracy of the information contained herein and agrees
to notify the Company immediately of any material change in the information provided herein that
occurs prior to the Company’s acceptance of this Agreement.



     (j) The Subscriber further represents and warrants that the Subscriber is an “accredited
investor” within the meaning of Rule 501 of Regulation D under the Securities Act, and Subscriber
has executed the Certificate of Accredited Investor Status, attached hereto as Exhibit B.



     (k) As of the date of this Agreement the Subscriber and its affiliates do not have, and during
the 30 day period prior to the date of this Agreement the Subscriber and its affiliates have not
entered into, any “put equivalent position” as such term is defined in Rule 16a-1 of under the
Exchange Act or short sale positions with respect to the Common Stock of the Company. Until the
registration statement referred to in Section 4(c) is declared effective, the Subscriber hereby
agrees not to, and will cause its affiliates not to, enter into any such “put equivalent position”
or short sale position.



     (l) If the Subscriber is a natural person, the Subscriber has reached the age of majority in
the state in which the Subscriber resides, has adequate means of providing for the Subscriber’s
current financial needs and contingencies, is able to bear the substantial economic risks of an
investment in the Shares for an indefinite period of time, has no need for liquidity in such
investment and, at the present time, could afford a complete loss of such investment.



     (m) If this Agreement is executed and delivered on behalf of a partnership, corporation,
trust, estate or other entity (an “Entity”): (i) such Entity has the full legal right and
power and all authority and approval required (a) to execute and deliver, or authorize execution
and delivery of, this Agreement and all other instruments executed and delivered by or on behalf of
such Entity in connection with the purchase of the Shares, (b) to delegate authority pursuant to
power of attorney and (c) to purchase and hold such Shares, (ii) the signature of the party signing
on behalf of such Entity is binding upon such Entity; and (iii) such Entity has not been formed



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for the specific purpose of acquiring such Shares, unless each beneficial owner of such entity
is qualified as an accredited investor within the meaning of Rule 501(a) of Regulation D
promulgated under the Securities Act and has submitted information substantiating such individual
qualification.



     (n) If the Subscriber is a retirement plan or is investing on behalf of a retirement plan, the
Subscriber acknowledges that investment in the Common Stock poses additional risks including the
inability to use losses generated by an investment in the Common Stock to offset taxable income.



     The foregoing representations and warranties and undertakings are made by the Subscriber with
the intent that they be relied upon in determining its suitability as an investor and the
Subscriber hereby agrees that such representations and warranties shall survive its purchase of the
Shares.



     6. Representations and Warranties of the Company. The Company hereby represents and
warrants to the Subscriber as follows:



     (a) The Company is duly incorporated, validly existing and in good standing under the laws of
its state of incorporation, and is duly qualified to do business as a foreign corporation in all
jurisdictions in which the failure to be so qualified would materially and adversely affect the
business or financial condition, properties or operations of the Company.


(b) The Company has duly authorized the issuance and sale of the Shares in accordance with the
terms of this Agreement (as described herein) by all requisite corporate action, including the
authorization of the Company’s Board of Directors of the issuance and sale of the Shares in
accordance herewith, and the execution, delivery and performance of any other agreements and
instruments executed in connection herewith. This Agreement constitutes a valid and legally
binding obligation of the Company, enforceable in accordance with its terms, except (i) as limited
by applicable bankruptcy, insolvency, reorganization, moratorium, and other laws of general
application affecting enforcement of creditors’ rights generally, (ii) as limited by laws relating
to the availability of specific performance, injunctive relief, or other equitable remedies, and
(iii) to the extent the indemnification provisions contained herein may be limited by applicable
federal or state securities laws.



(c) The execution and delivery by the Company of this Agreement, and the issuance and sale of
the Shares do not require any consents (except those consents already obtained), do not and will
not conflict with, result in any violation of, or constitute any default under, any provision of
any contractual obligation of Company.



(d) As of the date of this Agreement, the Memorandum does not contain any untrue statement of a
material fact or omit to state any material fact required to be stated therein or necessary in
order to make the statements therein, in the light of the circumstances under which they were made,
not misleading.




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(e) The documents incorporated by reference or included with the Memorandum, at the time they were
filed with the SEC, complied in all material respects with the requirements of the Exchange Act,
and, when read together and with the other information in the Memorandum, do not contain any untrue
statement of a material fact or omit to state a material fact required to be stated therein or
necessary in order to make the statements therein, in the light of the circumstances under which
they were made, not misleading.




     7. Understandings. The Subscriber understands, acknowledges and agrees with the
Company as follows:



     (a) This Subscription may be rejected, in whole or in part, by the Company in its sole and
absolute discretion, at any time before the Closing, notwithstanding prior receipt by the
undersigned of notice of acceptance of the undersigned’s Subscription. The Company may terminate
this Offering at any time in its sole discretion. The execution of this Agreement or solicitation
of the investment contemplated hereby, shall create no obligation of the Company to accept any
subscription or complete the Offering.



     (b) Except as set forth in Section 7(a) above, the Subscriber hereby acknowledges and agrees
that the subscription hereunder is irrevocable by the Subscriber, that, except as required by law,
the Subscriber is not entitled to cancel, terminate or revoke this Agreement or any agreements of
the Subscriber hereunder and that this Agreement and such other agreements shall survive the death
or disability of the Subscriber and shall be binding upon and inure to the benefit of the parties
and their heirs, executors, administrators, successors, legal representatives and permitted
assigns. If the Subscriber is more than one person, the obligations of the Subscriber hereunder
shall be joint and several and the agreements, representations, warranties and acknowledgments
herein contained shall be deemed to be made by and be binding upon each such person and his/her
heirs, executors, administrators, successors, legal representatives and permitted assigns.



     (c) No federal or state agency has made any finding or determination as to the accuracy or
adequacy of the Memorandum or as to the suitability of this offering for investment nor any
recommendation or endorsement of the Shares.



     (d) The Offering is intended to be exempt from registration under the Securities Act by virtue
of Section 4(2) of the Securities Act and the provisions of Regulation D thereunder, which is in
part dependent upon the truth, completeness and accuracy of the statements made by the Subscriber
herein.



     (e) There is only a limited public market for the Common Stock. There can be no assurance
that the Subscriber will be able to sell or dispose of the Shares. It is understood that in order
not to jeopardize the Offering’s exempt status under Section 4(2) of the Securities Act and
Regulation D, any transferee will, at a minimum, be required to fulfill the investor suitability
requirements thereunder.



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     (f) The Subscriber acknowledges that the information contained in the Memorandum is
confidential and non-public and agrees that all such information shall be kept in confidence by the
Subscriber and neither used for the Subscriber’s personal benefit (other than in connection with
this subscription) nor disclosed to any third party for any reason; provided, however, that this
confidentiality obligation shall not apply to any such information that (i) is part of the public
knowledge or literature, (ii) becomes part of the public knowledge or literature (except as a
result of a breach of this provision) or (iii) is received from third parties (except third parties
who disclose such information in violation of any confidentiality agreements or obligations,
including, without limitation, any subscription agreement entered into with the Company). In
addition, the Subscriber may disclose any information as may be required by law or applicable legal
process; provided, however, to the extent permitted by law or applicable legal process, the
Subscriber shall provide the Company at least five business days prior written notice before making
any such disclosure.



     (g) The representations, warranties and agreements of the Subscriber contained herein and in
any other writing delivered in connection with the transactions contemplated hereby shall be true
and correct in all respects on and as of the date of the Closing of the sale of the Shares as if
made on and as of such date and shall survive the execution and delivery of this Agreement and the
purchase of the Shares.



     8. Survival; Indemnification. All representations, warranties and covenants contained
in this Agreement and the indemnification contained in this Section 8 shall survive (i) the
acceptance of this Agreement by the Company, (ii) changes in the transactions, documents and
instruments described herein which are not material or which are to the benefit of Subscriber, and
(iii) the death or disability of Subscriber. Subscriber acknowledges the meaning and legal
consequences of the representations, warranties and covenants in Section 5 hereof and that the
Company has relied upon such representations, warranties and covenants in determining Subscriber’s
qualification and suitability to purchase the Shares. Subscriber hereby agrees to indemnify,
defend and hold harmless the Company, its officers, directors, employees, agents and controlling
persons, from and against any and all losses, claims, damages, liabilities, expenses (including
attorneys’ fees and disbursements), judgments or amounts paid in settlement of actions arising out
of or resulting from the untruth of any representation of Subscriber herein or the breach of any
warranty or covenant herein by Subscriber. Notwithstanding the foregoing, however, no
representation, warranty, covenant or acknowledgment made herein by Subscriber shall in any manner
be deemed to constitute a waiver of any rights granted to it under the Securities Act or state
securities laws.



     9. Notices. All notices and other communications provided for herein shall be in
writing and shall be deemed to have been duly given if delivered personally or sent by registered
or certified mail, return receipt requested, postage prepaid:



     (a) if to the Company, to the following address:


Horizon Offshore, Inc.

2500 CityWest Blvd.

Suite 2200

Houston, TX 77042-3097




12









 







Attn: Bill Gibbens

(713) 361-2601




     (b) if to Subscriber, to the address set forth on the signature page hereto.



     (c) or at such other address as any party shall have specified by notice in writing to the
others.



     10. Notification of Changes. Subscriber agrees and covenants to notify the Company
immediately upon the occurrence of any event prior to the consummation of this Offering that would
cause any representation, warranty, covenant or other statement contained in this Agreement to be
false or incorrect or of any change in any statement made herein occurring prior to the
consummation of this Offering.



     11. Assignability. This Agreement is not assignable by the Subscriber, and may not be
modified, waived or terminated except by an instrument in writing signed by the party against whom
enforcement of such modification, waiver or termination is sought.



     12. Binding Effect. Except as otherwise provided herein, this Agreement shall be
binding upon and inure to the benefit of the parties and their heirs, executors, administrators,
successors, legal representatives and assigns, and the agreements, representations, warranties and
acknowledgments contained herein shall be deemed to be made by and be binding upon such heirs,
executors, administrators, successors, legal representatives and assigns.



13









 





     13. Obligations Irrevocable. The obligations of the Subscriber shall be irrevocable,
except with the consent of the Company, until the consummation or termination of the Offering.



     14. Entire Agreement. This Agreement constitutes the entire agreement of the
Subscriber and the Company relating to the matters contained herein, superseding all prior
contracts or agreements, whether oral or written.



     15. Governing Law. This Agreement shall be governed by and construed in accordance
with the laws of the State of New York, without regard to the principles of conflicts of law
thereof that would require the application of the laws of any jurisdiction other than New York law.



     16. Severability. If any provision of this Agreement or the application thereof to
Subscriber or any circumstance shall be held invalid or unenforceable to any extent, the remainder
of this Agreement and the application of such provision to other subscriptions or circumstances
shall not be affected thereby and shall be enforced to the greatest extent permitted by law.



     17. Headings. The headings in this Agreement are inserted for convenience and
identification only and are not intended to describe, interpret, define, or limit the scope, extent
or intent of this Agreement or any provision hereof.



     18. Counterparts. This Agreement may be executed in any number of counterparts, each
of which when so executed and delivered shall be deemed to be an original and all of which together
shall be deemed to be one and the same agreement.



     19. Counsel. Subscriber hereby acknowledges that the Company and its counsel, Jones,
Walker, Waechter, Poitevent, Carrère & Denègre, LLP, represent the interests of the Company and not
those of the Subscriber in any agreement (including this Agreement) to which the Company is a
party.



[Signature Page to follow]




14









 






     IN WITNESS WHEREOF, Subscriber has executed this Subscription and Registration Rights
Agreement as of                                                              , 200                    .



	 	 	 	 	 
	 

	 	SUBSCRIBER	 	 
	 
	 	 	 	 
	 

	 	 

	 	 
	 

	 	Number of Shares:

 



	 	 
	 

	 	Offering Price per Share: $                    	 	 
	 

	 	Subscription Amount: $

 



	 	 
	 
	 	 	 	 
	 

	 	By:

 



	 	 
	 

	 	Name:

 



	 	 
	 

	 	Title:

 



	 	 
	 

	 	Address:

 



	 	 
	 
	 	 	 	 
	 

	 	 

	 	 
	 

	 	 

	 	 






     The Company hereby accepts the foregoing subscription subject to the terms and conditions
hereof as of                                                              , 200                    .



	 	 	 	 	 	 	 
	 	 	Horizon Offshore, Inc.
	 	 	a Delaware corporation
	 
	 	 	 	 	 	 
	 

	 	By:	 	 	 	 
	 

	 	 	 	 

Name:
	 	 
	 

	 	 	 	Title:	 	 






 









 






Exhibit A




SUBSCRIPTION INSTRUCTIONS




     (1) If you are subscribing for the purchase of Shares, please date and sign the signature page
to this Subscription and Registration Rights Agreement in the applicable spaces. Please signify
the amount of Shares you are purchasing by inserting such amount in the space provided for on the
signature page to the Agreement.



     (2) Complete and sign the accompanying Accredited Investor Certificate.



     (3) Send all completed documents to:


Energy Capital Solutions

1990 Post Oak Boulevard, Suite 2160

Houston, TX 77056

Attn: Brandon Neff

Telephone: (713) 933 – 0382

Fax:            (713) 933 – 0383




     (4) Transmit funds via wire to the following account of Horizon Offshore Contractors, Inc..



	 	 	 
	Receiving Bank Information:

	 	Amegy Bank of Texas
	ABA Number:

	 	113011258 
	Account Name:

	 	Horizon Offshore Contractors, Inc.
	Account Number:

	 	159506 





Amount should equal the number of shares you are purchasing multiplied by the Offering Price.



ATTENTION SUBSCRIBERS: NO SUBSCRIPTION WILL BE ACCEPTED UNLESS ALL DOCUMENTATION
PRESCRIBED HEREIN IS FULLY COMPLETED AND EXECUTED. ANY MATERIALS RECEIVED THAT ARE INCOMPLETE IN
ANY RESPECT WILL BE RETURNED BY THE COMPANY.





 









 








Exhibit B




CERTIFICATE OF ACCREDITED INVESTOR STATUS




     Except as may be indicated by the undersigned below, the undersigned is an “accredited
investor,” as that term is defined in Regulation D under the Securities Act of 1933, as amended
(the “Securities Act”). The undersigned has checked the box below indicating the basis on
which he is representing his status as an “accredited investor”:




	§	 	a bank as defined in Section 3(a)(2) of the Securities Act, or any
savings and loan association or other institution as defined in
Section 3(a)(5)(A) of the Securities Act whether acting in its
individual or fiduciary capacity; a broker or dealer registered
pursuant to Section 15 of the Securities Exchange Act of 1934, as
amended; an insurance company as defined in Section 2(13) of the
Securities Act; an investment company registered under the Investment
Company Act of 1940 or a business development company as defined in
Section 2(a)(48) of that Act; a small business investment company
licensed by the U.S. Small Business Administration under Section
301(c) or (d) of the Small Business Investment Act of 1958; a plan
established and maintained by a state, its political subdivisions, or
any agency or instrumentality of a state or its political
subdivisions, for the benefit of its employees, and such plan has
total assets in excess of $5,000,000; an employee benefit plan within
the meaning of the Employee Retirement Income Security Act of 1974, if
the investment decision is made by a plan fiduciary, as defined in
Section 3(21) of such Act, which is either a bank, savings and loan
association, insurance company, or registered investment adviser, or
if the employee benefit plan has total assets in excess of $5,000,000
or, if a self-directed plan, with investment decisions made solely by
persons that are “accredited investors”;
	 
	§	 	a private business development company as defined in Section
202(a)(22) of the Investment Advisers Act of 1940;
	 
	§	 	an organization described in Section 501(c)(3) of the Internal Revenue
Code, corporation, Massachusetts or similar business trust, or
partnership, not formed for the specific purpose of acquiring the
securities offered, with total assets in excess of $5,000,000;
	 
	§	 	a natural person whose individual net worth, or joint net worth with
the undersigned’s spouse, at the time of this purchase exceeds
$1,000,000;
	 
	§	 	a natural person who had an individual income in excess of $200,000 in
each of the two most recent years or joint income with the
undersigned’s spouse in excess of $300,000 in each of those years and
has a reasonable expectation of reaching the same income level in the
current year;
	 
	§	 	a trust with total assets in excess of $5,000,000, not formed for the
specific purpose of acquiring the securities offered, whose purchase
is directed by a person who has such





 









 






	 	 	knowledge and experience in financial and business matters that he is capable of evaluating
the merits and risks of the prospective investment;






	§	 	an entity in which all of the equity holders are “accredited investors” by virtue of their meeting one or more of the above
standards; or
	 
	§	 	an individual who is a director or executive officer of                                         .





     IN WITNESS WHEREOF, the undersigned has executed this Certificate of Accredited Investor
Status effective as of the                      day of                                                              , 200                    .



	 	 	 	 	 	 	 
	 	 	 	 	 
	 	 	Name of Subscriber	 	 
	 
	 	 	 	 	 	 
	 

	 	By:	 	 	 	 
	 

	 	 	 	 

	 	 
	 

	 	Name:	 	 	 	 
	 

	 	 	 	 

	 	 
	 

	 	Title:	 	 	 	 
	 

	 	 	 	 

	 	 







2









 








Exhibit C




PLAN OF DISTRIBUTION




     As of the date of this prospectus, we have not been advised by the selling stockholders as to
any plan of distribution. Distributions of the shares by the selling stockholders, or by their
partners, pledgees, donees (including charitable organizations), transferees or other successors in
interest, may from time to time be offered for sale either directly by such individual, or through
underwriters, dealers or agents or on any exchange on which the shares may from time to time be
traded, in the over-the-counter market, or in independently negotiated transactions or otherwise.
The methods by which the shares may be sold include:




	 	•	 	a block trade (which may involve crosses) in which the broker or dealer so engaged
will attempt to sell the securities as agent but may position and resell a portion of
the block as principal to facilitate the transaction;
	 
	 	•	 	purchases by a broker or dealer as principal and resale by such broker or dealer for
its own account pursuant to this prospectus;
	 
	 	•	 	exchange distributions and/or secondary distributions;
	 
	 	•	 	sales in the over-the-counter market;
	 
	 	•	 	underwritten transactions;
	 
	 	•	 	ordinary brokerage transactions and transactions in which the broker solicits
purchasers; and
	 
	 	•	 	privately negotiated transactions.





     Such transactions may be effected by the selling stockholders at market prices prevailing at
the time of sale or at negotiated prices. The selling stockholders may effect such transactions by
selling the common stock to underwriters or to or through broker-dealers, and such underwriters or
broker-dealers may receive compensations in the form of discounts or commissions from the selling
stockholders and may receive commissions from the purchasers of the common stock for whom they may
act as agent. The selling stockholders may agree to indemnify any underwriter, broker-dealer or
agent that participates in transactions involving sales of the shares against certain liabilities,
including liabilities arising under the Securities Act. We have agreed to register the shares for
sale under the Securities Act and to indemnify the selling stockholders and each person who
participates as an underwriter in the offering of the shares against certain civil liabilities,
including certain liabilities under the Securities Act.



     In connection with sales of the common stock under this prospectus, the selling stockholders
may enter into hedging transactions with broker-dealers, who may in turn engage in short sales of
the common stock in the course of hedging the positions they assume. The selling stockholders also
may sell shares of common stock short and deliver them to close out the short positions, or loan or
pledge the shares of common stock to broker-dealers that in turn may sell them.



 









 





     The selling stockholders and any underwriters, dealers or agents that participate in
distribution of the shares may be deemed to be underwriters, and any profit on sale of the shares
by them and any discounts, commissions or concessions received by any underwriter, dealer or agent
may be deemed to be underwriting discounts and commissions under the Securities Act.



     There can be no assurances that the selling stockholders will sell any or all of the shares
offered under this prospectus.




2