8-K

UNITED STATES

SECURITIES AND EXCHANGE COMMISSION

Washington, D.C. 20549

FORM 8-K

CURRENT REPORT

Pursuant to Section 13 or 15 (d) of the

Securities Exchange Act of 1934

Date of Report (Date of earliest event reported)

December 9, 2010

DEEP DOWN, INC.

(Exact name of registrant as specified in its charter)

Nevada	0-30351	75-2263732
(State or other jurisdiction of incorporation)	(Commission File Number)	(I.R.S. Employer Identification No.)

8827 W. Sam Houston Pkwy N. Suite 100, Houston, TX  77040

(Address of principal executive offices) (Zip Code)

(281) 517-5000

Registrant’s telephone number, including area code

Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions:

o Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)

o Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)

o Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))

o Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c))

SECTION 1 – Registrant’s Business and Operations

ITEM 1.01 – Entry into a Material Definitive Agreement.

On May 3, 2010, Deep Down, Inc., a Nevada corporation (“Deep Down”), announced the execution of a Stock Purchase Agreement, effective as of May 3, 2010 (the “Purchase Agreement”), by and among Deep Down, Cuming Corporation, a Massachusetts corporation (“Cuming”), and the stockholders of Cuming (the “Selling Stockholders”), pursuant to which Deep Down agreed to purchase all of the issued and outstanding shares of Cuming’s common stock (the “Acquisition”) for a purchase price of $47 million (less an amount of certain liabilities to be assumed and further subject to a purchase price adjustment for working capital).

On July 13, 2010, Deep Down entered into Amendment No. 1 to the Purchase Agreement (the “First Amendment”), dated effective as of June 30, 2010, on October 4, 2010, Deep Down entered into Amendment No. 2 to the Purchase Agreement (the “Second Amendment”), dated effective as of July 31, 2010, and on November 3, 2010, Deep Down entered into Amendment No. 3 to the Purchase Agreement (the “Third Amendment”), dated effective as of October 31, 2010.

On December 9, 2010, Deep Down entered into Agreement and Amendment No. 4 to the Purchase Agreement (the “Fourth Amendment”), dated effective as of November 30, 2010, to provide for an extension of the exclusivity period and of the date on which Deep Down or the Selling Stockholder may terminate the Purchase Agreement to January 14, 2011 if the Acquisition is not complete provided the party wishing to terminate is not in breach of the Purchase Agreement.  The Fourth Amendment also provided for modification in the purchase price to $42 million plus or less an amount for net customer deposit assets or net customer deposit liabilities, respectively (the “Purchase Price”).  In conjunction with the entry into the Fourth Amendment, a third party investor working with Deep Down c ommitted to deposit $2 million with an escrow agent (“Earnest Money Deposit”) to be applied towards the obligation to pay the Purchase Price on the closing date if and to the extent that the closing occurs on or prior to December 31, 2010.  In the event the closing does not occur on or prior to December 31, 2010 and certain conditions are not met, then the third party investor will forfeit the Earnest Money Deposit and the Earnest Money Deposit will be delivered to the Selling Stockholders and no longer applied to the Purchase Price.

The foregoing description of the Fourth Amendment is qualified in its entirety by reference to the full text of the agreement, a copy of which is attached hereto as Exhibit 10.1 and is incorporated herein by reference.

SECTION 9 – Financial Statements and Exhibits

ITEM 9.01. Financial Statements and Exhibits.

(d) Exhibits

10.1*     Agreement and Amendment No. 4 to Stock Purchase Agreement, dated effective as of November 30, 2010, among Deep Down, Inc., Cuming Corporation and the Selling Stockholders named therein.  

* Filed or furnished herewith.

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SIGNATURES

Pursuant to the requirements of the Securities Exchange Act of 1934, the Registrant has duly caused this report to be signed on its behalf by the undersigned thereunto duly authorized.

Date:  December 9, 2010

DEEP DOWN, INC.
By:	/s/ Ronald E. Smith
	Ronald E. Smith
	President and Chief Executive Officer

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EX-10.1

Exhibit 10.1

AGREEMENT AND AMENDMENT NO. 4 TO STOCK PURCHASE AGREEMENT

This Agreement and Amendment No. 4 to the Stock Purchase Agreement executed December 9, 2010 (the “Execution Date”) (“Fourth Amendment”) with an effective date of  November 30, 2010 (the “Effective Date”) by and among Deep Down, Inc., a corporation existing under the laws of Nevada (“Purchaser”), Cuming Corporation, a corporation existing under the laws of Massachusetts (the “Co mpany”), and the stockholders of the Company listed on the signature pages hereof under the heading “Selling Stockholders” (collectively, the “Selling Stockholders”). All capitalized terms not otherwise defined herein shall have the meanings as set forth in the Agreement (as defined below).

WHEREAS, on May 3, 2010, the parties entered into that certain Stock Purchase Agreement (the “Agreement”); and

WHEREAS, on June 30, 2010, the parties entered into that certain Amendment No. 1 to Stock Purchase Agreement (“First Amendment”); and

WHEREAS, on July 31, 2010, the parties entered into that certain Amendment No. 2 to Stock Purchase Agreement (“Second Amendment”); and

WHEREAS, on October 31, 2010, the parties entered into that certain Amendment No .3 to Stock Purchase Agreement (“Third Amendment”); and

WHEREAS, the parties desire to further amend the Agreement in accordance with the terms of this Fourth Amendment.

AGREEMENT

1. Purchase Price.  Section 2.2 of the Agreement shall be amended and restated to read as follows:

“2.2  Purchase Price. The aggregate purchase price to be paid by Purchaser for the Shares shall be an amount in cash equal to $42,000,000.00, plus an amount equal to the Net Customer Deposit Assets (if any) or less an amount equal to the Net Customer Deposit Liabilities (if any) (subject to adjustment as provided in Section 2.4 (the “Purchase Price”).”

2. Payment of Purchase Price.  Section 2.3(a) of the Agreement shall be amended and restated to read as follows:

“(a) On the Closing Date, Purchaser shall pay the Purchase Price less the Adjustment Escrow Amount, the Indemnity Escrow Amount and, if and to the extent the Closing occurs on or prior to December 31, 2010, the Earnest Money Deposit Escrow Amount, to the Selling Stockholders, which shall be paid to or at the direction of the Selling Stockholders by wire transfer of immediately available funds into accounts designated in writing by the Selling Stockholders not less than two (2) Business Days prior to the Closing Date; with such amounts paid to the accounts of the Selling Stockholders allocated among them in accordance with their pro rata ownership of the Shares set forth on Exhibit A.”

3.             Lease between Company and 225 Bodwell Corporation.  Exhibit G to the Agreement shall be amended and restated in its entirety as set forth in Exhibit A to this Fourth Amendment.

4. Termination of Agreement.  Section 9.l(a) of the Agreement shall be amended and restated to read as follows:

“(a) At the election of the Stockholder Representative or Purchaser on or after January 14, 2011 (such date, as it may be extended under this Section 9.1(a), the “Termination Date”), if the Closing shall not have occurred by the close of business on such date (as may be extended pursuant hereto), provided that the terminating party is not in material default of any of its obligations hereunder.”

5.              Earnest Money Deposit.  Within one day from and after the Execution Date, the parties hereto acknowledge that Flotation Investor, LLC (“Flotation Investor”)  will deposit with Casner & Edwards, LLP, in its capacity as escrow agent (“Earnest Money Deposit Escrow Agent”) the sum of Two Million Dollars ($2,000,000) (“Earnest Money Deposit Escrow Amount”) pursuant to that ce rtain Earnest Money Deposit Agreement dated as of the Execution Date (“Earnest Money Deposit Agreement”) as set forth in Exhibit B to this Fourth Amendment by and among Flotation Investor,  the Selling Stockholders and the Earnest Money Deposit Escrow Agent.  The parties agree that the Earnest Money Deposit Amount shall be applied  towards Purchaser’s obligation to pay the Purchase Price on the Closing Date, if and to the extent that the Closing occurs on or prior to December 31, 2010.  The parties hereto acknowledge that Purchaser and Flotation Investor have entered into an arrangement with respect to Flotation Investor’s financing of a portion of the Purchase Price at Closing.  Each of Purchaser, Flotation Investor and the Selling Stockholders will use commercially reasonable efforts to effectuate the Closing on or before December 31, 2010.   ;Anything in the Agreement to the contrary notwithstanding, in the event that the Closing does not occur on or prior to December 31, 2010 and (i) the Agreement has not been terminated by Purchaser, pursuant to Sections 9.1(c), 9.1(d) or 9.1(e) hereof on or prior to such date, (ii) the Selling Stockholders have not terminated the Agreement for any reason either alone or mutually with Purchaser on or prior to such date, and (iii) all of the conditions to Closing pursuant to Section 7.1 of the Agreement, other than Section 7.1(i) and 7.1(j), have been satisfied by such date (provided that such conditions requiring delivery to Purchaser of documents or instruments by or on behalf of the Selling Stockholders shall be deemed to have been satisfied upon delivery of such documents or instruments in escrow pending the Closing), then the entire Earnest Money Deposit shall be forfeited and paid immediately to the Selling Stockholders in accordance with the terms of the Escrow Money Deposit Agreement and shall no longer apply towards the Purchase Price, regardless of when the Closing occurs, if at all.

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6. Counterparts; Facsimile Signatures.  This Fourth Amendment may be executed in any number of counterparts, and each such counterpart hereof shall be deemed to be an original instrument, but all such counterparts together shall constitute but one agreement.  This amendment may be executed by facsimile signature.

7. Effectiveness of Agreement.  Except as amended hereby, the Agreement shall remain in full force and effect in accordance with its terms.

 IN WITNESS WHEREOF, the parties hereto have caused this Fourth Amendment to be duly executed as of the date first written above.

DEEP DOWN, INC.
By:	/s/ Eugene L. Butler
	Eugene L. Butler, Executive Chairman

CUMING CORPORATION
By:	/s/ John W. Cuming
	John W. Cuming, Chairman

SELLING STOCKHOLDERS:
By:	/s/ John W. Cuming
	John W. Cuming
	/s/ Jon E. Steffensen
	Jon E. Steffensen, Executor for the Estate of William R. Cuming under will dated March 31, 2003, as amended

The undersigned hereby acknowledges and agrees to the provisions of Section 5 of the foregoing Agreement and Amendment No. 4 to Stock Purchase Agreement.

	FLOTATION INVESTOR, LLC
Date: December 9, 2010	By:	/s/ Zalmie Jacobs

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