EXHIBIT 10.2
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[CONFORMED COPY]
THIS DEED is made on the 4th day of May 2001
BETWEEN
(1) THE SEVERAL PERSONS whose respective names and addresses are set out
in Schedule 1 (the "Covenantors");
(2) SEACOR SMIT INC (a company incorporated under the laws of the State
of Delaware, USA) of 00000 Xxxxxxxx Xxxxxx, Xxxxx 000, Xxxxxxx,
Xxxxx, 00000, XXX and whose address in England is 0 Xxxx'x Xxx
Xxxxxx, Xxxxxx XX0X 0XX (the "Purchaser").
WHEREAS:-
By an Agreement (the "Sale Agreement") of even date herewith and made between
the Covenantors and others (1) and the Purchaser (2) the Covenantors and others
agreed to sell the whole of the issued share capital of Stirling Shipping
Holdings Limited to the Purchaser and the Covenantors agreed on completion of
such sale to enter into this Deed.
THIS DEED WITNESSES as follows:-
1. DEFINITIONS AND INTERPRETATION
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In this Deed:-
1.1 Words and expressions defined in the Sale Agreement have the same
meaning except where otherwise provided or unless there is something
in the subject matter or context which is inconsistent with them.
1.2 "Accounts" means the Accounts (as defined in the Sale Agreement)
and/or the Completion Accounts.
1.3 "Company" means each, any or all of the companies whose respective
names and registered numbers are set out in Schedule 2 as the context
shall require.
1.4 "Covenantors' Relief" means any Relief or any right to repayment of
Tax which is or subsequently becomes available to the Company other
than:-
1.4.1 any Relief or right to repayment of Tax which was treated
as an asset of the Company in the Accounts: and
1.4.2 any Relief which arises as a result of any event which
occurs after Completion.
1.5 "Event" means any payment, transaction, act, omission or occurrence
of whatever nature whether or not the Company or the Purchaser is a
party thereto and for the avoidance of doubt includes:-
1.5.1 the execution of the Sale Agreement and completion of the
sale of the Shares to the Purchaser; and
1.5.2 the death of any person;
1.5.3 the Demerger;
and references to an Event occurring on or before Completion shall
include:-
(a) an Event deemed, pursuant to any Taxation Statute, to
occur or which is otherwise treated or regarded as
occurring on or before Completion and
(b) the combined result of two or more Events one or more of
which occurred on or before Completion but only to the
extent that the Event or Events which occurred on or
before Completion is/are outside the ordinary course of
business of the Company and the successive Events are
effected after Completion in the ordinary course of the
Company's business as carried out at Completion.
1.6 "Liability for Taxation" means any liability of the Company to make a
payment of or in respect of Taxation whether or not the same is
primarily payable by the Company and whether or not the Company has
or may have any right of reimbursement against any other person or
persons and shall also include:-
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1.6.1 the Loss of any Relief (other than a Relief the
utilisation of which was assumed for the purpose of
computing any provision for Tax in the Accounts) where
such Relief was treated as an asset of the Company in the
Accounts in which case the amount of the Liability for
Taxation shall be the amount of Taxation which would (on
the basis of tax rates current at the date of such Loss)
have been saved but for such Loss assuming for this
purpose that the Company had sufficient profits or was
otherwise in a position to use the Relief;
1.6.2 the Loss of any right to repayment of Taxation (including
any repayment supplement) which was treated as an asset in
the Accounts of the Company in which case the amount of
the Liability for Taxation shall be the amount of the
right to repayment and any related repayment supplement;
and
1.6.3 the set-off or use against income, profits or gains
earned, accrued or received or against any Tax chargeable
in respect of an Event occurring on or before Completion
of any Relief or right to repayment of Taxation (including
any repayment supplement) which is not available before
Completion but arises after Completion in circumstances
where, but for such set-off or use, the Company would have
had a liability to make a payment of or in respect of
Taxation for which the Purchaser would have been able to
make a claim against the Covenantors under this Deed in
which case the amount of the Liability for Taxation shall
be the amount of Taxation saved by the Company as a result
of such set-off or use.
1.7 "IHT Liability" means:-
1.7.1 any amount of inheritance tax which is at Completion
unpaid and in respect of which the Inland Revenue has a
charge on any of the Shares or assets of a Company or a
power to sell, mortgage or charge any of the Shares or
assets of any Company; or
1.7.2 any amount of inheritance tax which after Completion
becomes a charge on or gives rise to a power to sell,
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mortgage or charge any of the Shares or assets of a
Company being a liability in respect of additional
inheritance tax payable on the death of any person within
seven years after a transfer of value if a charge on or
power to sell, mortgage or charge any such Shares or
assets of a Company existed at the date of Completion or
would have existed at Completion, if the death had
occurred immediately before Completion and the inheritance
tax payable as a result of such death had not been paid;
and in determining for the purposes of this Deed whether a charge on
or power to sell, mortgage or charge any of the Shares or assets of a
Company exists at any time the fact that any inheritance tax is not
yet payable or may be paid by instalments shall be disregarded and
such inheritance tax shall be treated as becoming due and a charge or
power to sell, mortgage or charge as arising, on the date of the
transfer of value or other date or event on or in respect of which it
becomes payable or arises and the provisions of section 213 of the
Inheritance Tax Xxx 0000 shall not apply.
1.8 "Loss" means any reduction, modification, loss, counteraction,
nullification, utilisation, disallowance or clawback for whatever
reason.
1.9 "Relevant Company" means any company other than the Company, the
Purchaser and any company that may be treated for the purposes of the
form of Taxation that has given rise to the Liability for Taxation
under Clause 2.4 as being a member of the same group of companies as
the Purchaser or as being associated with the Purchaser.
1.10 "Relief" means any loss, relief, allowance, credit, exemption or
set-off in respect of Taxation or any deduction in computing income,
profits or gains for the purposes of Taxation.
1.11 "Saving" means:-
(a) the reduction or elimination of any liability of the Company to
make an actual payment of tax in respect of which the Covenantors
would not have been liable under Clause 2, by the use of any Relief
arising wholly as a result of a Liability for Taxation in respect of
which the Covenantors have made a payment under Clause 2, and
(b) any repayment of Taxation which the Company obtains which it
would not otherwise have been entitled to but for the payment of any
Taxation by the Company in respect of which the Covenantors have made
a payment under Clause 2 of this Deed.
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1.12 "Tax" or "Taxation" means:-
1.12.1 all forms of taxation including and without any limitation
any charge, tax, duty, levy, impost, withholding or
liability in the nature of taxation wherever chargeable
imposed for support of national, state, federal, municipal
or local government and whether of the UK or any other
jurisdiction; and
1.12.2 any penalty, fine, surcharge, interest or charges payable
in connection with any Taxation within sub-clause 1.12.1.
1.13 "Tax Claim" means any assessment, self-assessment, notice, demand,
letter or other document issued or action taken by or on behalf of
any Taxation Authority from which it appears that the Company is or
may be subject to a Liability for Taxation or other liability in
respect of which the Covenantors are or may be liable under this
Deed.
1.14 "Taxation Authority" means the Inland Revenue, Customs & Excise,
Department of Social Security and any other governmental or other
authority whatsoever competent to impose any Taxation whether in the
United Kingdom or elsewhere.
1.15 "Taxation Statute" means any directive, statute, enactment, law or
regulation wheresoever enacted or issued, coming into force or
entered into providing for or imposing any Taxation and shall include
orders, regulations, instruments, bye-laws or other subordinate
legislation made under the relevant statute or statutory provision
and any directive, statute, enactment, law, order, regulation or
provision which amends, extends, consolidates or replaces the same or
which has been amended, extended, consolidated or replaced by the
same.
1.16 Headings are for convenience only and shall not affect the
construction of this Deed.
1.17 References to gross receipts, income, profits or gains earned,
accrued or received shall include any gross receipts, income, profits
or gains deemed pursuant to the relevant Taxation Statute to have
been or treated or regarded as earned, accrued or received.
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1.18 Unless the context otherwise requires the singular shall include the
plural and vice versa, the masculine shall include the feminine and
references to persons shall include bodies corporate, unincorporated
associations and partnerships in each case whether or not having
separate legal personality.
1.19 Unless the context otherwise requires references to a clause or
sub-clause of or schedule to is a reference to a clause or sub-clause
of or schedule to this Deed.
2. COVENANT
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Subject as hereinafter provided the Covenantors hereby covenant to
pay to the Purchaser an amount equal to:-
2.1 any Liability for Taxation resulting from or by reference to any
Event occurring on or before Completion or in respect of any gross
receipts, income, profits or gains earned, accrued or received by the
Company on or before Completion;
2.2 any IHT Liability;
2.3 any liability of the Company to repay or the loss of the right to
receive in whole or in part any payment for the surrender of group
relief or of the benefit of any surplus advance corporation tax
received or receivable by the Company pursuant to any agreement or
claim made on or before the date hereof;
2.4 any Liability for Taxation resulting from or by reference to any
Event occurring on or before Completion for which the Company would
not have been liable but for being treated as being or having been a
member of the same group as or associated with any Relevant Company
for the purposes of any Tax; and
2.5 all costs and expenses reasonably and properly incurred and payable
by the Company or the Purchaser in connection with any action taken
to avoid, resist or settle any Tax Claim, Liability for Taxation, IHT
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Liability or any liability or loss under sub-clause 2.3 or otherwise
taking or defending any action under this Deed.
3. LIMITATION OF COVENANTORS' LIABILITY
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The covenant given by Clause 2 above shall not cover any Liability
for Taxation:-
3.1 to the extent that a provision or reserve (including any provision or
reserve for deferred tax) in respect thereof was made in the
Accounts;
3.2 to the extent that such Liability for Taxation arises or is increased
as a result only of any change in law (whether relating to Taxation
or otherwise) announced and coming into force after the date of the
Sale Agreement;
3.3 to the extent recovery (less costs and expenses) has been made by the
Purchaser under the Sale Agreement in respect of the same subject
matter;
3.4 to the extent that such Liability for Taxation would not have arisen
but for a voluntary act or transaction carried out by the Purchaser
or the Company after the date hereof otherwise than in the ordinary
course of business or otherwise than pursuant to a legally binding
obligation created on or before the date hereof, where in either such
case such act or transaction was carried out without the consent of
the Covenantors or any of them and where the Purchaser or the Company
knew or ought reasonably to have known that such act or transaction
would give rise to such Liability for Taxation;
3.5 except in the case of fraudulent or negligent conduct unless written
notice of such Liability for Taxation or any Tax Claim which may give
rise to such Liability for Taxation specifying in reasonable detail
the circumstances giving or which may give rise to such Liability for
Taxation and the amount thereof has been served on the Covenantors on
or prior to the seventh anniversary of Completion;
3.6 in respect of stamp duty or stamp duty reserve tax payable on the
transfer or agreement to transfer the Shares pursuant to the
Agreement;
3.7 to the extent that provisions in Schedule 7 to the Sale Agreement are
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expressed to have application to this Deed;
3.8 to the extent that such Liability for Taxation was discharged on or
before Completion and the discharge of such Liability for Taxation
was recognised in the Accounts;
3.9 to the extent that such Liability for Taxation is reduced or
eliminated by the use of a Covenantors' Relief;
3.10 to the extent that such Liability for Taxation arises or results from
or as a consequence of any change after Completion in accounting
date, accounting policy or the basis upon which the Company values
its assets;
3.11 to the extent that such Liability for Taxation relates to any fine,
penalty, surcharge or interest arising by reason of any failure or
delay on the part of the Purchaser or the Company in paying over to
the relevant Taxation Authority any payment made under this Deed by
the Covenantors or in keeping, preserving, maintaining or submitting
any accounts, records, form, return or computation after Completion
or in complying with their obligations under this Deed;
3.12 to the extent that such Liability for Taxation would not have arisen
but for a cessation of or any change in the nature of conduct of any
trade carried on by the Company being a cessation or change occurring
on or after Completion; or
3.13 to the extent that the provision or reserve in the Accounts in
respect of that Liability for Taxation is insufficient by reason of
any increase in rates of Taxation after Completion; or
3.14 to the extent that such Liability for Taxation arises or is increased
as a result of a change to or the withdrawal after the date hereof of
any previously published practice or concession of any Taxation
Authority; or
3.15 to the extent that such Liability for Taxation arises as a result of
the revocation or revision after Completion by the Company or the
Purchaser of any claim, election, surrender, disclaimer or
notification in relation to Taxation made before Completion and the
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consequences or effect of which are reflected in the Accounts (the
details of those which are reflected in the Accounts (but not the
Completion Accounts) were provided to the Purchaser on or before the
date of this Deed);
3.16 to the extent that the Liability for Taxation arises or is increased
as a result of a failure on the part of the Company or the Purchaser
on or after Completion to make any claim, election, surrender or
disclaimer or give any consent or notification or do anything after
Completion, the making, giving or doing of which was taken into
account in the Accounts (the details of those which are taken into
account in the Accounts (but not the Completion Accounts) were
provided to the Purchaser on or before the date of this Deed);
and for the purposes of this Clause 3 only "Liability for Taxation"
shall be deemed to include a liability or loss falling within
sub-clause 2.2, 2.3 or 2.5.
4. DISPUTES AND CONDUCT OF TAX CLAIMS
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4.1 If the Purchaser or the Company shall become aware of a Tax Claim the
Purchaser shall or shall procure that the Company shall as soon as
reasonably practicable thereafter give written notice thereof to the
Covenantors.
4.2 If the Covenantors shall indemnify and secure the Company and/or (as
the case shall require) the Purchaser to the Purchaser's reasonable
satisfaction against all liabilities, costs, damages or expenses
which may be incurred thereby including any additional Liability for
Taxation, the Purchaser shall and shall procure that the Company
shall take such action as the Covenantors may reasonably request by
notice in writing given to the Company and the Purchaser to avoid,
dispute, defend, resist, appeal or compromise any Tax Claim (such a
Tax Claim where action is so requested being hereinafter referred to
as a "Dispute") Provided that neither the Company nor the Purchaser
shall be obliged to appeal or procure an appeal against any
assessment to Taxation raised on either of them if, the Covenantors
having been given written notice of the receipt of such assessment,
the Company and the Purchaser have not within 15 days of the date of
the notice received instructions in writing from the Covenantors to
do so.
4.3 If the Covenantors do not request the Purchaser or the Company to
take any action under sub-clause 4.2 of this Deed or fail to
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indemnify and secure the Purchaser and the Company to the Purchaser's
reasonable satisfaction within a period of time (commencing with the
date of the notice given to the Covenantors) that is reasonable
having regard to the nature of the Tax Claim and the existence of any
time limit in relation to avoiding, disputing, defending, resisting,
appealing or compromising such Tax Claim and which period shall not
in any event exceed a period of 30 days or if the Tax Claim concerns
fraudulent conduct, the Purchaser or Company shall have the conduct
of the Tax Claim absolutely (without prejudice to its rights under
this Deed) and shall be free to pay or settle the Tax Claim on such
terms as may be reasonable.
4.4 Subject to sub-clause 4.3, by agreement in writing between the
Purchaser and the Covenantors, the conduct of a Dispute may be
delegated to the Covenantors upon such terms as may be agreed from
time to time between the Purchaser and the Covenantors Provided that,
unless the Purchaser and the Covenantors specifically agree otherwise
in writing, the following terms shall be deemed to be incorporated
into any such agreement:-
4.4.1 the Company and the Purchaser shall promptly be kept fully
informed of all matters pertaining to a Dispute and shall
be entitled to see and keep copies of all correspondence
and notes or other written records of telephone
conversations or meetings and, in the event that there is
no written record, shall within a reasonable period be
given a report of all telephone conversations with any
Taxation Authority to the extent that it relates to a
Dispute;
4.4.2 the appointment of solicitors or other professional
advisers shall be subject to the approval of the
Purchaser, such approval not to be unreasonably withheld
or delayed;
4.4.3 all written communications pertaining to the Dispute which
are to be transmitted to the relevant Taxation Authority
shall first be submitted to the Purchaser and the Company
for approval and shall only be finally transmitted if such
approval is given, which approval is not to be
unreasonably withheld or delayed; and
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4.4.4 the Covenantors shall make no settlement or compromise of
the Dispute or agree any matter in the conduct of the
Dispute which is likely to affect the future liability to
Taxation of the Company or of the Purchaser without the
prior approval of the Company and the Purchaser (as may be
appropriate), such approval not to be unreasonably
withheld or delayed.
4.5 Neither the Purchaser nor the Company shall be subject to any claim
by or liability to any of the Covenantors for non-compliance with any
of the foregoing provisions of this Clause 4 if the Purchaser or the
Company has bona fide acted in accordance with the instructions of
any one or more of the Covenantors.
5. PAYMENT DATE AND INTEREST
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5.1 Where the Covenantors are liable to make any payment under Clause 2,
the due date for the making of that payment (the "Due Date") shall be
the later of the date falling seven days after the Purchaser has
served a notice on the Covenantors demanding that payment and:-
5.1.1 in a case that involves an actual payment of Taxation by
the Company, the date on which the Taxation in question
would have had to have been paid to the relevant Taxation
Authority in order to prevent a liability to interest or a
fine, surcharge or penalty from arising in respect of the
Liability for Taxation in question; or
5.1.2 in any case that involves a Liability for Taxation falling
within Clause 1.6.1 the last date upon which the Taxation
that would otherwise have been saved becomes finally due
and payable to the relevant Taxation Authority; or
5.1.3 in any case that involves a Liability for Taxation falling
within Clause 1.6.2 the date upon which the repayment was
due from the relevant Taxation Authority; or
5.1.4 in any case that involves a Liability for Taxation falling
within Clause 1.6.3 the date upon which Taxation becomes
due and payable to the relevant Taxation Authority which
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would not otherwise have become due and payable had it not
been for the said use or setting off of the Relief
concerned.
5.2 Any dispute as to the amount specified in any notice served on the
Covenantors under sub-clause 5.1.2, 5.1.3 or 5.1.4 shall be
determined by the auditors of the Company for the time being, acting
as experts and not as arbitrators (the costs of that determination
being shared equally by the Covenantors and the Purchaser).
5.3 If any sums required to be made by the Covenantors under this Deed
are not paid on the Due Date, then, except to the extent that the
Covenantors' liability under Clause 2 compensates the Purchaser for
the late payment by virtue of it extending to interest and penalties,
such sums shall bear interest (which shall accrue from day to day
after as well as before any judgment for the same) at the rate of 2
per cent per annum over the base rate from time to time of Barclays
Bank Plc or (in the absence thereof) at such similar rate as the
Purchaser shall select from the day following the Due Date up to and
including the day of actual payment of such sums such interest to be
compounded quarterly.
6. TAXATION OF PAYMENTS
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6.1 Any sum payable by the Covenantors to the Purchaser under this Deed
shall be paid free and clear of any deduction or withholding
whatsoever, save only as may be required by law.
6.2 If any deduction or withholding is required by law to be made from
any payment by the Covenantors under this Deed (other than a payment
made pursuant to Clause 5.3) or if (ignoring any Relief) the
Purchaser is subject to Taxation in respect of such payment the
Covenantors shall increase the amount of the payment by such
additional amount as is necessary to ensure that the net amount
received and retained by the Purchaser (after taking account of all
deductions or withholdings or Taxation) is equal to the amount which
it would have received and retained had the payment in question not
been subject to any deductions or withholdings or Taxation.
6.3 If any additional amount is paid pursuant to sub-clause 6.2 by virtue
of any deduction or withholding being required by law to be made and
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the Purchaser receives a tax credit, repayment or other benefit by
reason of any deduction or withholding in respect of which the
Covenantors have paid an additional amount, the Purchaser shall pay
to the Covenantors forthwith the amount of such tax credit, repayment
or other benefit.
7. RECOVERY FROM OTHER PERSONS
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7.1 Where the Purchaser or the Company is or becomes entitled to recover
from some other person not being the Purchaser, the Company or any
other company within the same group of companies as the Purchaser or
the Company any amount which is referable to a Liability for Taxation
which has resulted in a payment being made by the Covenantors under
this Deed, the Purchaser shall or procure that the Company shall:-
7.1.1 notify the Covenantors of its entitlement; and
7.1.2 if required by the Covenantors and, subject to the
Purchaser and the Company being secured and indemnified by
the Covenantors against any Taxation that may be suffered
on receipt of that amount and any costs and expenses
incurred in recovering that amount, take or procure that
the Company takes all reasonable steps to enforce that
recovery.
7.2 If the Purchaser or the Company recovers any amount referred to in
sub-clause 7.1 the Purchaser shall account to the Covenantors for the
lesser of:-
7.2.1 any amount recovered (including any related interest or
related repayment supplement) less any Taxation suffered
in respect of that amount and any costs and expenses
incurred in recovering that amount (save to the extent
that that amount has already been made good by the
Covenantors under sub-clause 7.1.2); and
7.2.2 the amount paid by the Covenantors under Clause 2 in
respect of the Liability for Taxation in question.
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8. SAVINGS
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8.1 If the Purchaser or the Company become aware that any Liability for
Taxation which has resulted in a payment being made by the
Covenantors under Clause 2 has given rise to a Saving, the Purchaser
shall forthwith give details thereof to the Covenantors. The
Covenantors may on receipt of such notice or in the absence of such
notice at any time request the auditors for the time being of the
Company to certify that the Company has obtained a Saving and the
amount of the Saving shall be dealt with in accordance with Clause
8.2.
8.2 The Purchaser will repay to the Covenantors the lesser of:-
8.2.1 the amount of the Saving (as determined by the Auditors)
less any costs incurred by the Company or the Purchaser;
and
8.2.2 the amount paid by the Covenantors under Clause 2 in
respect of the Liability for Taxation which gave rise to
the Saving less any part of that amount previously repaid
to the Covenantors under any provision of this Deed or
otherwise.
8.3 If the amount of the Saving exceeds the amount mentioned in Clause
8.2.2 the excess will be set against (and so will reduce or
eliminate) any liability of the Covenantors under Clause 2 then
outstanding or which arises after such determination in the latter
case as and when such liability arises.
9. COVENANTORS' RELIEF
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9.1 The Purchaser shall at the direction in writing of the Covenantors
procure that any Company shall take all such steps as the Covenantors
may require to use in the manner hereinafter mentioned all
Covenantors' Reliefs to reduce or eliminate any Liability for
Taxation or other liability in respect of which the Purchaser would
have been able to make a claim against the Covenantors under this
Deed the said use being to effect the reduction or elimination of any
such Liability for Taxation or other liability to the extent
specified by the Covenantors and permitted by Law and to provide to
the Covenantors at the Covenantors' expense a certificate from the
Auditors confirming that all Covenantors' Reliefs have been so used.
10. REPAYMENTS OF TAX
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10.1 If the Company receives any repayment of Tax which relates to a
period prior to Completion and which has not been taken into account
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in the Accounts, including without limitation both an actual
repayment and a credit to offset against any other Liability to Tax,
the Purchaser will as soon as is reasonably practicable thereafter
repay to the Covenantors the lesser of:-
10.1.1 the amount of the repayment of tax; and
10.1.2 the aggregate amount (if any) paid by the Covenantors
under Clause 2 less any part of that amount previously
paid to the Covenantors under any provision of this Deed
or otherwise.
10.2 If upon receipt of a repayment of Tax pursuant to Clause 10.1 the
amount mentioned in Clause 10.1.1 exceeds the amount mentioned in
Clause 10.1.2 the excess will be set against (and so will reduce or
eliminate) any liability of the Covenantors under Clause 2 then
outstanding or which arises after such determination in the latter
case as and when such liability arises.
11. OVER-PROVISIONS
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11.1 If the Purchaser or the Company become aware that any provision for
Taxation contained in the Accounts is likely to be an over-provision,
the Purchaser shall forthwith give details thereof to the
Covenantors. The Covenantors may on receipt of such notice or in the
absence of such notice at any time request the auditors for the time
being of the Company to certify that any provision for Taxation in
the Accounts has proved to be an over-provision and the amount of
such over-provision shall be dealt with in accordance with Clause
11.2. For the avoidance of doubt this Clause shall not apply where
any provision for Taxation contained in the Accounts has proved to be
an over-provision wholly or mainly as a result of any Event occurring
after Completion.
11.2 Where Clause 11.1 applies:-
11.2.1 the amount over provided shall first be set off against
any payment then due from the Covenantors under this Deed;
and
11.2.2 to the extent that there is an excess, a refund shall be
made to the Covenantors of any previous payment or
payments made by the Covenantors under this Deed and
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not previously refunded under this Clause up to the amount
of such excess; and
11.2.3 to the extent that the excess referred to in Clause 11.2.2
is not exhausted under that Clause the remainder of that
excess shall be refunded to the Covenantors.
11.3 In determining under Clause 11.1 whether any provision in the
Accounts has proved to be an over-provision, the Auditors will act as
experts and not as arbitrators and (in the absence of manifest error)
their determination will be conclusive and binding on the parties.
11.4 Where a determination has been made by the Auditors under Clause 11.1
the Covenantors or the Purchaser or the Company may request the
Auditors to review such determination (at the expense of the
person(s) making the request) in the light of all relevant
circumstances, including any facts which have become known only since
such determination, and to determine whether such determination
remains correct or whether, in the light of those circumstances, the
amount that was the subject of such determination should be amended.
11.5 If the Auditors determine under Clause 11.3 that an amount previously
determined should be amended, that amended amount will be substituted
for the purposes of Clause 11.1 and 11.2 in place of the amount
originally determined, and such adjusting payments (if any) as may be
required by virtue of such substitution will as soon as reasonably
practicable be made by the Covenantors to the Purchaser, or as the
case may be, by the Purchaser to the Covenantors.
12. CORPORATION TAX RETURNS
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12.1 The Covenantors or their duly authorised agents shall prepare all
documentation and shall have conduct of all matters (including
correspondence) relating to the corporation tax returns and
computations of the Company for all accounting periods ended on or
prior to the Balance Sheet Date and shall submit all such returns and
computations to the Purchaser provided that the Covenantors shall not
without the prior written consent of the Purchaser (not to be
unreasonably withheld or delayed) transmit any communication (written
16
or otherwise) to H.M. Inspector of Taxes or agree any matter with
H.M. Inspector of Taxes.
12.2 The Purchaser shall procure that the returns and computations
mentioned in sub-clause 12.1 shall be authorised, signed and
submitted to H.M. Inspector of Taxes without amendment or with such
amendments as the Purchaser reasonably considers to be necessary and
shall give the Covenantors or their agents all such assistance as may
reasonably be required to agree those returns and computations with
H.M. Inspector of Taxes provided that the Purchaser shall not be
obliged to take any such action as is mentioned in this sub-clause in
relation to any return that is not full, true and accurate in all
material respects.
12.3 The Purchaser shall procure that the Company affords such access to
its books, accounts and records as is necessary and reasonable to
enable the Covenantors or their duly authorised agents to prepare the
corporation tax returns and computations of the Company for all
accounting periods ended on or before the Balance Sheet Date and
conduct matters relating to them in accordance with this Clause 12.
12.4 The Covenantors shall take all reasonable steps to ensure that the
corporation tax returns and computations of the Company for all
accounting periods ended on or before the Balance Sheet Date are
prepared and agreed with H.M. Inspector of Taxes as soon as possible.
12.5 The Purchaser shall provide or shall procure that there is provided
to the Covenantors or their agents a copy of any corporation tax
return and computation of the Company for the accounting period
current at Completion before such return and computation is submitted
to the relevant Taxation Authority.
12.6 The Covenantors or their agents shall, within a period of 15 business
days following receipt of a copy of the return and computation
pursuant to Clause 12.6, be entitled to comment in writing to the
Company on such return and computation.
17
13. COUNTER INDEMNITY
-----------------
13.1 The Purchaser hereby undertakes to pay to the Covenantors by way of
adjustment to the consideration for the Shares, an amount equal to
any Taxation payable by the Covenantors pursuant to Section 767A,
Section 767AA or Section 767B ICTA 1988 in circumstances where the
taxpayer company or the transferred company (as referred to therein)
is the Company, provided that the Taxation so payable by the
Covenantors is and will not be a Liability for Taxation in respect of
which the Purchaser has or will have a claim against the Covenantors
pursuant to Clause 2 or pursuant to the Warranties relating to
Taxation.
13.2 To the extent that the Covenantors have made a payment to the
Purchaser under this Deed or under the Warranties relating to
Taxation, and an amount in respect of such Taxation subsequently
becomes payable by the Covenantors pursuant to Section 767A, Section
767AA or Section 767B ICTA 1988 in circumstances where the taxpayer
company or the transferred company (as referred to therein) is the
Company, the Purchaser shall repay to the Covenantors the payment
previously paid in respect of that Taxation by the Covenantors to the
Purchaser under this Deed or under the Warranties relating to
Taxation.
13.3 The undertaking contained in Clause 13.1 and the repayment obligation
in Clause 13.2 shall extend to any reasonable costs incurred by the
Covenantors in connection with such Taxation or the relevant claim
under Clause 13.1 or 13.2.
13.4 The provisions of Clauses 5 and 6 shall apply mutates mutandis to any
claim under this Clause 13 by the Covenantors against the Purchaser
as if references thereunder to the "Purchaser" or the "Company" were
references to the "Covenantors".
14. ASSIGNMENT
----------
14.1 Limited assignment
No party may assign the benefit of this Deed whether absolutely or by
way of security except with the prior written consent of the other
party, such consent not to be unreasonably withheld or delayed,
(provided that the Purchaser may assign the benefit of this Deed to
any member of the Purchaser's Group without any such consent on terms
that if such member leaves the Purchaser's Group it will reassign the
18
benefit of the Deed to the Purchaser or to another member of the
Purchaser's Group) and any purported assignment in contravention of
this clause shall be ineffective.
14.2 Successors in title
Subject to sub-clause 14.1, this Deed shall be binding upon and enure
for the benefit of the personal representatives and assigns and
successors in title of each of the parties and references to the
parties shall be construed accordingly.
15. REMEDIES
--------
15.1 Remedies
The rights of the Purchaser under this Deed are independent,
cumulative and without prejudice to all other rights available to it
whether as a matter of common law, statute, custom or otherwise.
15.2 Non-exclusion of fraud
Nothing in this Deed or in any other document referred to herein
shall be read or construed as excluding any liability or remedy as a
result of fraud.
16. WAIVER, VARIATION AND RELEASE
-----------------------------
16.1 No waiver by omission, delay or partial exercise
No omission to exercise or delay in exercising on the part of any
party to this Deed any right, power or remedy provided by law or
under this Deed shall constitute a waiver of such right, power or
remedy or any other right, power or remedy or impair such right,
power or remedy. No single or partial exercise of any such right,
power or remedy shall preclude or impair any other or further
exercise thereof or the exercise of any other right, power or remedy
provided by law or under this Deed.
16.2 Specific waivers to be in writing
Any waiver of any right, power or remedy under this Deed must be in
writing and may be given subject to any conditions thought fit by the
grantor. Unless otherwise expressly stated, any waiver shall be
effective only in the instance and only for the purpose for which it
is given.
19
16.3 Variations to be in writing
No variation to this Deed shall be of any effect unless it is agreed
in writing and signed by or on behalf of each party.
16.4 Non-release of all Covenantors
Any liability to the Purchaser under this Deed may in whole or in
part be released, compounded or compromised or time or indulgence
given by the Purchaser in its absolute discretion as regards any of
the Covenantors under such liability without in any way prejudicing
or affecting its rights against any other or others of the
Covenantors under the same or like liability, whether joint or
several or otherwise.
17. NOTICES
-------
17.1 Form of notices
Any communication to be given in connection with the matters
contemplated by this Deed shall except where expressly provided
otherwise be in writing and shall either be delivered by hand or sent
by first class pre-paid post or facsimile transmission. Delivery by
courier shall be regarded as delivery by hand.
17.2 Address and facsimile
Such communication shall be sent to the address of the relevant party
referred to in this Deed or the facsimile number set out below or to
such other address or facsimile number as may previously have been
communicated to the other party in accordance with this clause. Each
communication shall be marked for the attention of the relevant
person.
Vendors' Representative - facsimile number: 0141 352 5601
20
Purchaser - facsimile number: 001 212 582 8522. For the attention of
Xxxxxxx Xxxxx.
Copies to:-
Xxxxx Gran - facsimile number: 020 7404 1301
Purchaser's Solicitors (for the attention of X.X. Xxxxx) - facsimile
number: 020 7831 7454
17.3 Deemed time of service
A communication shall be deemed to have been served:
17.3.1 if delivered by hand at the address referred to in
sub-clause 17.2, at the time of delivery;
17.3.2 if sent by first class pre-paid post to the address
referred to in sub-clause 17.2, at the expiration of two
clear days after the time of posting; and
17.3.3 if sent by facsimile to the number referred to in
sub-clause 17.2, at the time of completion of transmission
by the sender.
If a communication would otherwise be deemed to have been delivered
outside normal business hours in the time zone of the territory of
the recipient under the preceding provisions of this clause, it shall
be deemed to have been delivered at the next opening of such business
hours in the territory of the recipient.
17.4 Proof of service
In proving service of the communication, it shall be sufficient to
show that delivery by hand was made or that the envelope containing
the communication was properly addressed and posted as a first class
pre-paid letter or that the facsimile was despatched and a
confirmatory transmission report received.
17.5 Change of details
A party may notify the other parties to this Deed of a change to its
name, relevant person, address or facsimile number for the purposes
of sub-clause
21
17.1 Provided that such notification shall only be effective
on:
17.5.1 the date specified in the notification as the date on
which the change is to take place; or
17.5.2 if no date is specified or the date specified is less than
five clear Business Days after the date on which notice is
deemed to have been served, the date falling five clear
Business Days after notice of any such change is deemed to
have been given.
17.6 Notice to Covenantors
Notice given to the Vendors' Representative shall be deemed to be
notice to all of the Covenantors. Any notice to be given by the
Covenantors shall be sufficiently given on behalf of them all by the
Vendors' Representative and the rights of the Covenantors shall be
sufficiently exercised or waived on behalf of them if exercised or
waived by the Vendors' Representative.
17.7 Non-applicability to Proceedings
For the avoidance of doubt, the parties agree that the provisions of
this Clause 17 shall not apply in relation to the service of any
writ, summons, order, judgment or other document relating to or in
connection with any Proceedings.
18. COUNTERPARTS
------------
18.1 Execution in counterparts
This Deed may be executed in any number of counterparts and by the
parties on different counterparts, but shall not be effective until
each party has executed at least one counterpart.
18.2 One agreement
Each counterpart shall constitute an original of this Deed but all
the counterparts shall together constitute one and the same
agreement.
19. INVALIDITY
----------
Each of the provisions of this Deed is severable. If any such
provision is or becomes illegal, invalid or unenforceable in any
respect under the law of any jurisdiction, the legality, validity or
enforceability in that jurisdiction of the remaining provisions of
22
this Deed shall not in any way be affected or impaired thereby.
20. GOVERNING LAW AND JURISDICTION
------------------------------
20.1 English law
This Deed shall be governed by and construed in accordance with
English law.
20.2 Courts of England and Wales
The parties to this Deed irrevocably agree that, for the exclusive
benefit of the Purchaser, the courts of England shall have
jurisdiction to settle any dispute which may arise out of or in
connection with this Deed and that accordingly any Proceedings may be
brought in such courts.
Service of proceedings
20.3 The Purchaser irrevocably appoints the Purchaser's Solicitors as its
process agent to receive on its behalf service of any process in any
proceedings in England. Such service shall be deemed completed on
delivery to the process agent, (marked for the attention X.X. Xxxxx)
whether or not such process is forwarded to and received by the
Purchaser. If for any reason such process agent ceases to be able or
willing to act as process agent, the Purchaser irrevocably agrees to
appoint a substitute process agent and to deliver to the other
parties a copy for the new process agent's acceptance of that
appointment within 30 days of such acceptance.
IN WITNESS whereof this document has been executed and delivered as a Deed the
day and year first above written
23
SCHEDULE 1
==========
THE COVENANTORS
Iain Xxxxxx Xxxxxxxx Xxxxxxxx
Xxxxxxxx, Xxxxxxxx, Xxxxxxx X00 0XX
Xxxxxxxx Xxxxxxxx
Xxxxxxxx, Xxxxxxxx, Xxxxxxx X00 0XX
Xxxxxxx Xxxxxxx Xxxxx Xxxxxxxx
00 Xxxxxxx Xxxxxxx, Xxxxxxx, Xxxxxxxxxxx X00 0XX
Xxxxx Xxxxxxx Xxxxx Xxxxxxxx
The Glassert, Xxxxxxx Xxxx, Xxxxxxxxx, Xxxxxxxx , Xxxxxxxxxx XX0 0XX
Xxxx Xxxxxxxx
Xxx Xxxxxxx, Xxxxxxx Xxxx, Xxxxxxxxx, Xxxxxxxx, Xxxxxxxxxx XX0 0XX
Xxxxxxx Xxxxxxxx
Ballabeg, Dykehead, Port of Monteith
Xxxxx Xxxxxxxx
00 Xxxxxxxxxx Xxxx, Xxxxxxx, XX 00000, XXX
Xxxxxx Xxxxxxxx
Xxxxxxxx, Xxxxxxxx, Xxxxxxx X00 0XX
Xxxxxxx Xxxxxxx Xxxxxxxxx
00 Xxxxxxx Xxxx, Xxxxx, Xxxxxxxx XX00 0XX
Xxxx Xxxxxxxxx
00 Xxxxxxx Xxxx, Xxxxx, Xxxxxxxx XX00 0XX
Xxxxx Xxxxxx Xxxxx
00 Xxxxxxxxx Xxxxxx, Xxxxxx Xxxxxx, Xxxxxxx , Xxxxxxxxxxx X00 0XX
Xxxxxx Xxxxx
00 Xxxxxxxxx Xxxxxx, Xxxxxx Xxxxxx, Xxxxxxx, Xxxxxxxxxxx X00 0XX
24
Xxxxxxx Xxxxxx Xxxxxxxx
Elmgrove, Xxxxxxxx Xxxxxx, Xxxxxx, Xxxxxx XX00 0XX
Xxxx Xxxxxxxx
Elmgrove, 0 Xxxxxxxx Xxxxxx, Xxxxxx, Xxxxxx XX00 0XX
Xxxxxxx Xxxxxxxxx
0 Xxxxxxx Xxxx, Xxxxxxx X00 0XX
Xxxxxx Xxxxxxxxx
0 Xxxxxxx Xxxx, Xxxxxxx X00 0XX
25
SCHEDULE 2
==========
THE COMPANIES
Name Registered Number
Stirling Shipping Holdings Limited SC212855
Stirling Shipping Company Limited SC159842
Stirling Offshore Limited SC041594
Stirling Marine Limited SC108613
Xxxxx Marine Limited SC11094
Haven Shipping Company Limited SC044380
Stirling Trustees Limited SC160232
Stirling Shipmanagement Limited (formerly
Known as Stirling Ferries Limited) SC182248
Stirling Shipping (Malta) Limited C14865
26
Signed as a Deed by } [Signed by]
IAIN XXXXXX XXXXXXXX XXXXXXXX } Iain X.X. Xxxxxxxx
in the presence of:- }
Witness: Name Xxxxx Xxxxxxxx
Address 00 Xxxxxxxxxx Xxxxxx
Xxxxxxx
Occupation Solicitor
Signed as a Deed by } [Signed by]
XXXXXXXX XXXXXXXX } Iain X.X. Xxxxxxxx
in the presence of:- } [as Attorney]
Witness: Name Xxxxx Xxxxxxxx
Address as above
Occupation
Signed as a Deed by } [Signed by]
XXXXXXX XXXXXXX XXXXX XXXXXXXX } Xxxxxxx Xxxxxxxx
in the presence of:- }
Witness: Name Xxxxx Xxxxxxxx
Address as above
Occupation
Signed as a Deed by } [Signed by]
XXXXX XXXXXXX XXXXX XXXXXXXX } Xxxxx Xxxxxxxx
in the presence of:- }
Witness: Name Xxxxx Xxxxxxxx
Address as above
Occupation
27
Signed as a Deed by } [Signed by]
XXXX XXXXXXXX } Xxxxx Xxxxxxxx
in the presence of:- } [as Attorney]
Witness: Name Xxxxx Xxxxxxxx
Address as above
Occupation
Signed as a Deed by } [Signed by]
XXXXXXX XXXXXXXX } Xxxxx Xxxxxxxx
in the presence of:- } [as Attorney]
Witness: Name Xxxxx Xxxxxxxx
Address as above
Occupation
Signed as a Deed by } [Signed by]
XXXXX XXXXXXXX } Xxxxx Xxxxxxxx
in the presence of:- } [as Attorney]
Witness: Name Xxxxx Xxxxxxxx
Address as above
Occupation
Signed as a Deed by } [Signed by]
XXXXXX XXXXXXXX } Iain X.X. Xxxxxxxx
in the presence of:- } [as Attorney]
Witness: Name Xxxxx Xxxxxxxx
Address as above
Occupation
28
Signed as a Deed by } [Signed by]
XXXXXXX XXXXXXXXX } X. XxxXxxxxx
in the presence of:- }
Witness: Name Xxxxx Xxxxxxxx
Address as above
Occupation
Signed as a Deed by } [Signed by]
XXXX XXXXXXXXX } X. XxxXxxxxx
in the presence of:- } [as Attorney]
Witness: Name Xxxxx Xxxxxxxx
Address as above
Occupation
Signed as a Deed by } [Signed by]
XXXXX XXXXXX XXXXX } Xxxxx X. Xxxxx
in the presence of:- }
Witness: Name Xxxxx Xxxxxxxx
Address as above
Occupation
Signed as a Deed by } [Signed by]
XXXXXX XXXXX } Xxxxx X. Xxxxx
in the presence of:- } [as Attorney]
Witness: Name Xxxxx Xxxxxxxx
Address as above
Occupation
29
Signed as a Deed by } [Signed by]
XXXXXXX XXXXXX XXXXXXXX } X.X. Xxxxxxxx
in the presence of:- }
Witness: Name Xxxxx Xxxxxx
Address 00 Xxxxxxxxxx Xxxxxx
Xxxxxxx
Occupation Solicitor
Signed as a Deed by } [Signed by]
XXXX XXXXXXXX } X.X. Xxxxxxxx
in the presence of:- } [as Attorney]
Witness: Name Xxxxx Xxxxxx
Address as above
Occupation as above
Signed as a Deed by } [Signed by]
XXXXXXX XXXXXXXXX } Xxxxx X. Xxxxx
in the presence of:- } [as Attorney]
Witness: Name Xxxxx Xxxxxx
Address as above
Occupation as above
Signed as a Deed by } [Signed by]
XXXXXX XXXXXXXXX } Xxxxx X. Xxxxx
in the presence of:- } [as Attorney]
Witness: Name Xxxxx Xxxxxx
Address as above
Occupation as above
30
Executed as a Deed by
SEACOR SMIT INC
acting by
Xxxx X. Xxxxxxx
Vice President
31
