EXHIBIT 99.9
AMENDMENT NO. 2 TO
STOCK PURCHASE AGREEMENT
------------------------
THIS AMENDMENT XX. 0 ("Xxxxxxxxx Xx. 0"), dated this 15th day of May, 1997,
amends the STOCK PURCHASE AGREEMENT dated as of February 14, 1997, as amended by
AMENDMENT NO. 1 TO STOCK PURCHASE AGREEMENT dated as of April 4, 1997, (as
amended, the "Agreement") by and among XXXXXX X. XXXXXX, XX., XXXXXX X. XXXXXXX,
XXXX X. XXXX and XXX X. XXXXXXXXX as Sellers and HALTER MARINE, INC. as
Purchaser,
W I T N E S S E T H:
WHEREAS, Article 12 of the Agreement grants to Purchaser an irrevocable
option to purchase from the MHI Sellers the MHI Option Shares and an option to
purchase from the Texas Drydock Seller the Texas Drydock Option Shares
(collectively, the "Purchase Option") exercisable no earlier than twelve (12)
months after the Closing Date and no later than twenty-four (24) months after
the Closing Date, at the Purchase Option Total Exercise Price to be determined
by negotiations but not less than Twenty Million Five Hundred Eighty Thousand
Dollars ($20,580,000.00) and not exceeding Thirty Million Dollars
($30,000,000.00); and
WHEREAS, the parties desire to amend the Agreement to provide (a) that the
Purchase Option Total Exercise Price shall be Twenty-Seven Million Dollars
($27,000,000.00) payable as provided herein, and (b) that the time of exercise
of the options shall be at any time on or before twenty-four (24) months after
the Closing Date; and
WHEREAS, Purchaser desires to exercise the Purchase Option and the parties
desire to provide for the Purchase Option Closing upon such exercise;
NOW, THEREFORE, the parties do hereby agree as follows:
1.
Capitalized terms used in this Amendment No. 2 shall have the same meanings
as set forth in the Agreement, unless otherwise specifically defined herein or
the context shall clearly indicate otherwise.
2.
Section 12.5 of the Agreement is hereby amended to read in its entirety as
follows:
"12.5 Purchase Option Total Exercise Price. The total consideration
------------------------------------
(the "Purchase Option Total Exercise Price") to be paid by Purchaser upon
exercise of the
options granted to Purchaser to purchase the MHI Option Shares and the
Texas Drydock Option Shares shall be Twenty-Seven Million Dollars
($27,000,000.00)" which shall be payable by Purchaser's execution and
delivery of five promissory notes (the "Promissory Notes"), each dated the
Purchase Option Closing Date, substantially in the form of Exhibits 1
through 5 attached hereto.
3.
Section 12.6 of the Agreement is amended to read in its entirety as
follows:
"12.6 Time of Exercise of Purchase Options. The options granted to
------------------------------------
Purchaser to purchase the MHI Option Shares and the Texas Drydock Option
Shares must be exercised at the same time and may not be separately
exercised and shall be exercised, if at all, at any time after the Closing
Date and no later than twenty-four (24) months after the Closing Date.
Time is of the essence hereof."
4.
Purchaser hereby exercises the Purchase Option for the Purchase Option
Total Exercise Price. It is understood and agreed by and among the parties that
notwithstanding the provisions of Section 12.7 of the Agreement regarding the
Notice of Exercise, this Amendment No. 2 is hereby substituted for, and shall
serve as, the Purchaser's Notice of Exercise as defined in Section 12.7 of the
Agreement.
5.
It is further understood and agreed by and among the parties that
notwithstanding the provisions of Section 12.7 and Section 12.8 of the Agreement
regarding the Purchase Option Closing Date and the Purchase Option Closing, the
place for the Purchase Option Closing shall be the offices of Jones, Walker,
Waechter, Poitevent, Carrere & Xxxxxxx, L.L.P., 000 Xx. Xxxxxxx Xxxxxx, Xxx
Xxxxxxx, Xxxxxxxxx 00000-0000 and that the date for the Purchase Option Closing
Date shall be May 15, 1997, or at such other date, time or place as the parties
may agree.
6.
Section 12.9 of the Agreement is amended to read in its entirety as
follows:
"12.9 Deliveries at Purchase Option Closing. At the Purchase Option
-------------------------------------
Closing:
(a) The Purchaser will execute and deliver to the Escrow Agent and
the Sellers the Promissory Notes bearing their respective names as Payees.
(b) The Escrow Agent will deliver to the Purchaser the certificates
representing the MHI Option Shares, duly endorsed (or accompanied by duly
executed stock powers), for transfer to Purchaser and the certificates
representing the Texas Drydock Option Shares, duly endorsed (or accompanied
by duly executed stock powers), for transfer to Purchaser, that have been
deposited with the Escrow Agent."
7.
It is also understood and agreed by and among the parties that the
provisions of Article 17 of the Agreement, which provide for meetings of the
stockholders and Boards of Directors of MHI, Texas Drydock and TDI
International, Ltd., are hereby deleted in their entirety.
8.
This Amendment No. 2 is subject to the receipt by Halter Marine Group,
Inc., the parent company of Purchaser, of a waiver or other approval from its
lending banks, of which Whitney National Bank is the lead lender, that this
Amendment No. 2 and the consummation of the transactions hereby, including
particularly the execution and delivery of the Promissory Notes, will not be
deemed a violation or default of the loan documents. If such waiver or other
approval is not received by Halter Marine Group, Inc. on or before the Purchase
Option Closing Date, this Amendment No. 2 shall be deemed null and void ab
initio; no party shall have any liability or responsibility to or be liable for
damages to any other party; and the Agreement and Escrow Agreement shall remain
in full force and effect as if this Amendment No. 2 never existed.
9.
The parties by their execution hereof reaffirm their intention to be bound
by the terms, provisions and conditions of the Agreement, as amended by this
Amendment No. 2.
IN WITNESS WHEREOF, the parties have executed and delivered this Amendment
as of the date first written above.
SELLERS:
/s/ Xxxxxx X. Xxxxxx, Xx.
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XXXXXX X. XXXXXX, XX.
/s/ Xxxxxx X. Xxxxxxx
--------------------------------------------
XXXXXX X. XXXXXXX
/s/ Xxxx X. Xxxx
--------------------------------------------
XXXX X. XXXX
/s/ Xxx X. Xxxxxxxxx
--------------------------------------------
XXX X. XXXXXXXXX
PURCHASER:
HALTER MARINE, INC.
By:/s/ Xxxx Xxxx, III
-----------------------------------------
Xxxx Xxxx, III
Chairman, President and
Chief Executive Officer
Exhibit 5
PROMISSORY NOTE DUE 1998
$1,000,000.00 New Orleans, Louisiana
May 15, 1997
The undersigned unconditionally promises to pay to the order of Bank One,
Louisiana, National Association, as escrow agent, at its offices at 000
Xxxxxxxxxx Xx., Xxxxx 000, Xxx Xxxxxxx, XX 00000, or at such other location as
is designated by the holder hereof, in lawful money of the United States of
America, the principal amount of ONE MILLION AND NO/100 DOLLARS ($1,000,000.00),
all of which shall be payable in full on January 15, 1998 (the "Maturity Date").
The outstanding principal amount of this Note shall bear interest
("Ordinary Interest") from and including the date hereof until paid at the rate
of SEVEN AND ONE TENTH PERCENT (7.1%) per annum. Interest shall be calculated
on a 365 day per year basis and shall be payable on the Maturity Date.
If a payment of principal or interest falls due on a Saturday, Sunday, or
any other day on which financial institutions are generally not open for
business in New Orleans, Louisiana, payment shall be made on the next business
day.
This Note is not subject to any right of offset or compensation in favor of
the undersigned.
Any amounts payable pursuant to this Note, whether principal or interest,
which are not paid on the date due shall bear interest ("Default Interest") at a
rate equal to twelve percent (12%) per annum from such due date until paid in
full.
All payments on this Note shall be applied first to attorneys' fees and
other costs then accrued, if any; second, to the Default Interest then accrued,
if any; third, to Ordinary Interest then accrued, if any; and, finally, to the
principal.
This Note shall become immediately due and payable at the option of the
holder hereof, without presentment or demand or any notice to the undersigned or
any other person obligated hereon, upon (a) the undersigned's failure to pay
principal or interest under this Note on or before the due date thereof, (b) the
undersigned becoming subject to bankruptcy, receivership, liquidation, or other
insolvency proceedings, whether voluntarily or involuntarily, whether under
federal, state or foreign law or (c) the undersigned making a general assignment
for the benefit of its creditors or becoming unable to pay its bills as they
become due in the regular course of its business.
If this Note is collected by suit or through any bankruptcy court, or any
judicial proceedings, or if this Note is not paid at
maturity, however such maturity may be brought about, and it is placed in the
hands of an attorney for collection, then the undersigned unconditionally
promises to pay all reasonable attorneys' fees and court costs associated with
the enforcement of this Note.
The undersigned and all sureties, endorsers and guarantors of this Note
waive demand, presentment for payment, notice of non-payment, protest, notice of
protest, all pleas of division and discussion and all other notice, filing of
suit and diligence in collecting this Note or enforcing any security herefor,
and agree to any substitution, exchange or release of any of such security or
the release of any party primarily or secondarily liable hereon and further
agree that it will not be necessary for any holder hereof, in order to enforce
payment of this Note, to first institute suit or exhaust its remedies against
any maker or others liable herefor, or to enforce its rights against any
security herefor, and consent to any extensions or postponements of the time of
payment of this Note or any other indulgences with respect hereto, without
notice thereof to any of them and hereby bind themselves in solido for the
-- ------
payment hereof in principal, interest, costs and attorneys' fees.
This Note shall be governed by and construed in accordance with the laws of
the State of Louisiana, United States of America.
HALTER MARINE, INC.
By:
Xxxx Xxxx, III
Chairman, President and
Chief Executive Officer
Exhibit 1
PROMISSORY NOTE DUE 1998
$4,070,942.00 New Orleans, Louisiana
May 15, 1997
The undersigned unconditionally promises to pay to the order of Xxxx X.
Xxxx, at 00 Xxxx Xx., Xxx Xxxxxxx, XX 00000, or at such other location as is
designated by the holder hereof, in lawful money of the United States of
America, the principal amount of FOUR MILLION SEVENTY THOUSAND NINE HUNDRED
FORTY-TWO AND NO/100 DOLLARS ($4,070,942.00), all of which shall be payable in
full on January 15, 1998 (the "Maturity Date").
The outstanding principal amount of this Note shall bear interest
("Ordinary Interest") from and including the date hereof until paid at the rate
of SEVEN AND ONE TENTH PERCENT (7.1%) per annum. Interest shall be calculated
on a 365 day per year basis and shall be payable on the Maturity Date.
If a payment of principal or interest falls due on a Saturday, Sunday, or
any other day on which financial institutions are generally not open for
business in New Orleans, Louisiana, payment shall be made on the next business
day.
This Note is not subject to any right of offset or compensation in favor of
the undersigned.
Any amounts payable pursuant to this Note, whether principal or interest,
which are not paid on the date due shall bear interest ("Default Interest") at a
rate equal to twelve percent (12%) per annum from such due date until paid in
full.
All payments on this Note shall be applied first to attorneys' fees and
other costs then accrued, if any; second, to the Default Interest then accrued,
if any; third, to Ordinary Interest then accrued, if any; and, finally, to the
principal.
This Note shall become immediately due and payable at the option of the
holder hereof, without presentment or demand or any notice to the undersigned or
any other person obligated hereon, upon (a) the undersigned's failure to pay
principal or interest under this Note on or before the due date thereof, (b) the
undersigned becoming subject to bankruptcy, receivership, liquidation, or other
insolvency proceedings, whether voluntarily or involuntarily, whether under
federal, state or foreign law or (c) the undersigned making a general assignment
for the benefit of its creditors or becoming unable to pay its bills as they
become due in the regular course of its business.
If this Note is collected by suit or through any bankruptcy court, or any
judicial proceedings, or if this Note is not paid at maturity, however such
maturity may be brought about, and it is placed in the hands of an attorney for
collection, then the undersigned unconditionally
promises to pay all reasonable attorneys' fees and court costs associated with
the enforcement of this Note.
The undersigned and all sureties, endorsers and guarantors of this Note
waive demand, presentment for payment, notice of non-payment, protest, notice of
protest, all pleas of division and discussion and all other notice, filing of
suit and diligence in collecting this Note or enforcing any security herefor,
and agree to any substitution, exchange or release of any of such security or
the release of any party primarily or secondarily liable hereon and further
agree that it will not be necessary for any holder hereof, in order to enforce
payment of this Note, to first institute suit or exhaust its remedies against
any maker or others liable herefor, or to enforce its rights against any
security herefor, and consent to any extensions or postponements of the time of
payment of this Note or any other indulgences with respect hereto, without
notice thereof to any of them and hereby bind themselves in solido for the
-- ------
payment hereof in principal, interest, costs and attorneys' fees.
This Note shall be governed by and construed in accordance with the laws of
the State of Louisiana, United States of America.
HALTER MARINE, INC.
By:
Xxxx Xxxx, III
Chairman, President and
Chief Executive Officer
Exhibit 3
PROMISSORY NOTE DUE 1998
$4,956,982.00 New Orleans, Louisiana
May 15, 1997
The undersigned unconditionally promises to pay to the order of Xxxxxx X.
Xxxxxxx, at 0000 Xxx Xxxxxxx Xxxx, Xxxxxx, XX 00000, or at such other location
as is designated by the holder hereof, in lawful money of the United States of
America, the principal amount of FOUR MILLION NINE HUNDRED FIFTY-SIX THOUSAND
NINE HUNDRED EIGHTY-TWO AND NO/100 DOLLARS ($4,956,982.00), all of which shall
be payable in full on January 15, 1998 (the "Maturity Date").
The outstanding principal amount of this Note shall bear interest
("Ordinary Interest") from and including the date hereof until paid at the rate
of SEVEN AND ONE TENTH PERCENT (7.1%) per annum. Interest shall be calculated
on a 365 day per year basis and shall be payable on the Maturity Date.
If a payment of principal or interest falls due on a Saturday, Sunday, or
any other day on which financial institutions are generally not open for
business in New Orleans, Louisiana, payment shall be made on the next business
day.
This Note is not subject to any right of offset or compensation in favor of
the undersigned.
Any amounts payable pursuant to this Note, whether principal or interest,
which are not paid on the date due shall bear interest ("Default Interest") at a
rate equal to twelve percent (12%) per annum from such due date until paid in
full.
All payments on this Note shall be applied first to attorneys' fees and
other costs then accrued, if any; second, to the Default Interest then accrued,
if any; third, to Ordinary Interest then accrued, if any; and, finally, to the
principal.
This Note shall become immediately due and payable at the option of the
holder hereof, without presentment or demand or any notice to the undersigned or
any other person obligated hereon, upon (a) the undersigned's failure to pay
principal or interest under this Note on or before the due date thereof, (b) the
undersigned becoming subject to bankruptcy, receivership, liquidation, or other
insolvency proceedings, whether voluntarily or involuntarily, whether under
federal, state or foreign law or (c) the undersigned making a general assignment
for the benefit of its creditors or becoming unable to pay its bills as they
become due in the regular course of its business.
If this Note is collected by suit or through any bankruptcy court, or any
judicial proceedings, or if this Note is not paid at maturity, however such
maturity may be brought about, and it is placed in the hands of an attorney for
collection, then the undersigned unconditionally
promises to pay all reasonable attorneys' fees and court costs associated with
the enforcement of this Note.
The undersigned and all sureties, endorsers and guarantors of this Note
waive demand, presentment for payment, notice of non-payment, protest, notice of
protest, all pleas of division and discussion and all other notice, filing of
suit and diligence in collecting this Note or enforcing any security herefor,
and agree to any substitution, exchange or release of any of such security or
the release of any party primarily or secondarily liable hereon and further
agree that it will not be necessary for any holder hereof, in order to enforce
payment of this Note, to first institute suit or exhaust its remedies against
any maker or others liable herefor, or to enforce its rights against any
security herefor, and consent to any extensions or postponements of the time of
payment of this Note or any other indulgences with respect hereto, without
notice thereof to any of them and hereby bind themselves in solido for the
-- ------
payment hereof in principal, interest, costs and attorneys' fees.
This Note shall be governed by and construed in accordance with the laws of
the State of Louisiana, United States of America.
HALTER MARINE, INC.
By:
Xxxx Xxxx, III
Chairman, President and
Chief Executive Officer
Exhibit 2
PROMISSORY NOTE DUE 1998
$11,772,076.00 New Orleans, Louisiana
May 15, 1997
The undersigned unconditionally promises to pay to the order of Xxxxxx X.
Xxxxxx, at 0000 Xxxxxxxx Xxx, X.X., Xxxxxxx, XX 00000, or at such other
location as is designated by the holder hereof, in lawful money of the United
States of America, the principal amount of ELEVEN MILLION SEVEN HUNDRED SEVENTY-
TWO THOUSAND SEVENTY-SIX AND NO/100 DOLLARS ($11,772,076.00), all of which shall
be payable in full on January 15, 1998 (the "Maturity Date").
The outstanding principal amount of this Note shall bear interest
("Ordinary Interest") from and including the date hereof until paid at the rate
of SEVEN AND ONE TENTH PERCENT (7.1%) per annum. Interest shall be calculated
on a 365 day per year basis and shall be payable on the Maturity Date.
If a payment of principal or interest falls due on a Saturday, Sunday, or
any other day on which financial institutions are generally not open for
business in New Orleans, Louisiana, payment shall be made on the next business
day.
This Note is not subject to any right of offset or compensation in favor of
the undersigned.
Any amounts payable pursuant to this Note, whether principal or interest,
which are not paid on the date due shall bear interest ("Default Interest") at a
rate equal to twelve percent (12%) per annum from such due date until paid in
full.
All payments on this Note shall be applied first to attorneys' fees and
other costs then accrued, if any; second, to the Default Interest then accrued,
if any; third, to Ordinary Interest then accrued, if any; and, finally, to the
principal.
This Note shall become immediately due and payable at the option of the
holder hereof, without presentment or demand or any notice to the undersigned or
any other person obligated hereon, upon (a) the undersigned's failure to pay
principal or interest under this Note on or before the due date thereof, (b) the
undersigned becoming subject to bankruptcy, receivership, liquidation, or other
insolvency proceedings, whether voluntarily or involuntarily, whether under
federal, state or foreign law or (c) the undersigned making a general assignment
for the benefit of its creditors or becoming unable to pay its bills as they
become due in the regular course of its business.
If this Note is collected by suit or through any bankruptcy court, or any
judicial proceedings, or if this Note is not paid at maturity, however such
maturity may be brought about, and it is placed in the hands of an attorney for
collection, then the undersigned unconditionally
promises to pay all reasonable attorneys' fees and court costs associated with
the enforcement of this Note.
The undersigned and all sureties, endorsers and guarantors of this Note
waive demand, presentment for payment, notice of non-payment, protest, notice of
protest, all pleas of division and discussion and all other notice, filing of
suit and diligence in collecting this Note or enforcing any security herefor,
and agree to any substitution, exchange or release of any of such security or
the release of any party primarily or secondarily liable hereon and further
agree that it will not be necessary for any holder hereof, in order to enforce
payment of this Note, to first institute suit or exhaust its remedies against
any maker or others liable herefor, or to enforce its rights against any
security herefor, and consent to any extensions or postponements of the time of
payment of this Note or any other indulgences with respect hereto, without
notice thereof to any of them and hereby bind themselves in solido for the
-- ------
payment hereof in principal, interest, costs and attorneys' fees.
This Note shall be governed by and construed in accordance with the laws of
the State of Louisiana, United States of America.
HALTER MARINE, INC.
By:
Xxxx Xxxx, III
Chairman, President and
Chief Executive Officer
Exhibit 4
PROMISSORY NOTE DUE 1998
$5,200,000.00 New Orleans, Louisiana
May 15, 1997
The undersigned unconditionally promises to pay to the order of Xxx X.
Xxxxxxxxx, at 0000 Xxxxxxxx Xxxxx, Xxxxxx, XX 00000, or at such other location
as is designated by the holder hereof, in lawful money of the United States of
America, the principal amount of FIVE MILLION TWO HUNDRED THOUSAND AND NO/100
DOLLARS ($5,200,000.00), all of which shall be payable in full on January 15,
1998 (the "Maturity Date").
The outstanding principal amount of this Note shall bear interest
("Ordinary Interest") from and including the date hereof until paid at the rate
of SEVEN AND ONE TENTH PERCENT (7.1%) per annum. Interest shall be calculated
on a 365 day per year basis and shall be payable on the Maturity Date.
If a payment of principal or interest falls due on a Saturday, Sunday, or
any other day on which financial institutions are generally not open for
business in New Orleans, Louisiana, payment shall be made on the next business
day.
This Note is not subject to any right of offset or compensation in favor of
the undersigned.
Any amounts payable pursuant to this Note, whether principal or interest,
which are not paid on the date due shall bear interest ("Default Interest") at a
rate equal to twelve percent (12%) per annum from such due date until paid in
full.
All payments on this Note shall be applied first to attorneys' fees and
other costs then accrued, if any; second, to the Default Interest then accrued,
if any; third, to Ordinary Interest then accrued, if any; and, finally, to the
principal.
This Note shall become immediately due and payable at the option of the
holder hereof, without presentment or demand or any notice to the undersigned or
any other person obligated hereon, upon (a) the undersigned's failure to pay
principal or interest under this Note on or before the due date thereof, (b) the
undersigned becoming subject to bankruptcy, receivership, liquidation, or other
insolvency proceedings, whether voluntarily or involuntarily, whether under
federal, state or foreign law or (c) the undersigned making a general assignment
for the benefit of its creditors or becoming unable to pay its bills as they
become due in the regular course of its business.
If this Note is collected by suit or through any bankruptcy court, or any
judicial proceedings, or if this Note is not paid at maturity, however such
maturity may be brought about, and it is placed in the hands of an attorney for
collection, then the undersigned unconditionally promises to pay all reasonable
attorneys' fees and court costs associated with the enforcement of this Note.
The undersigned and all sureties, endorsers and guarantors of this Note
waive demand, presentment for payment, notice of non-payment, protest, notice of
protest, all pleas of division and discussion and all other notice, filing of
suit and diligence in collecting this Note or enforcing any security herefor,
and agree to any substitution, exchange or release of any of such security or
the release of any party primarily or secondarily liable hereon and further
agree that it will not be necessary for any holder hereof, in order to enforce
payment of this Note, to first institute suit or exhaust its remedies against
any maker or others liable herefor, or to enforce its rights against any
security herefor, and consent to any extensions or postponements of the time of
payment of this Note or any other indulgences with respect hereto, without
notice thereof to any of them and hereby bind themselves in solido for the
-- ------
payment hereof in principal, interest, costs and attorneys' fees.
This Note shall be governed by and construed in accordance with the laws of
the State of Louisiana, United States of America.
HALTER MARINE, INC.
By:
Xxxx Xxxx, III
Chairman, President and
Chief Executive Officer
