PURCHASE AGREEMENT
AGREEMENT OF PURCHASE AND SALE dated as of December 3, 1996,
among (A) ACADIAN OFFSHORE SERVICES, INC., a Louisiana corporation
("Purchaser"), (B) SEACOR HOLDINGS, INC., a Delaware corporation
("SEACOR Holdings"), (C) GALAXIE MARINE SERVICE, INC., a Louisiana
corporation ("Galaxie"), MOONMAID MARINE, INC., a Louisiana
corporation ("Moonmaid"), and TRIANGLE MARINE, INC., a Louisiana
corporation ("Triangle") (Galaxie, Moonmaid, and Triangle are herein
sometimes individually called a Seller and collectively called the
"Sellers"), and (D) X.X. Xxxxxxxxx, Xxxxxx Xxxxxxxxx, D. Xxx
Xxxxxxxxx, and Xxxxxx X. Xxxxxxxxx (each individually a Stockholder
and collectively the "Stockholders").
1. SALE OF ASSETS AND BUSINESS OF THE SELLERS.
(a) Upon the terms and subject to the provisions of Section
7(f) hereof and subject to the other provisions set forth in this
Agreement, the Sellers will sell, convey, assign, transfer and deliver
to Purchaser, and Purchaser will purchase from the Sellers, all the
assets set forth in Schedule 1.1 hereto (such assets, excluding the
"Excluded Assets" (as hereinafter defined), being hereinafter called
the "Purchased Assets"). The Purchased Assets include, without
limitation, those assets referred to and listed in Schedules 1.1, 2.1,
3.1, 7.1, 7.2, 7.3, and 9.7 (except for the names of "Galaxie,"
"Moonmaid," and "Triangle," and the logo of Galaxie).
(b) Anything hereinabove contained to the contrary
notwithstanding, the Purchased Assets shall not include any assets of
the Sellers not listed on one of the aforementioned Schedules,
including the following (hereinafter collectively called the "Excluded
Assets"):
(i) cash on hand and cash equivalents;
(ii) cash value of life insurance;
(iii) accounts and notes receivable;
(iv) prepaid expenses, utility and similar deposits;
(v) any insurance policies;
(vi) any capital construction fund accounts; and
(vii) any interest in real property.
(c) After the Closing, all books and records of Sellers
related to the Purchased Assets shall be maintained at the office
building to be leased by Purchaser pursuant to this Agreement (the
"Office Building") and shall be available at all times for inspection
and copying by officers, attorneys, accountants and other authorized
representatives of Purchaser. If Sellers shall desire to dispose of
any such books and records (which they shall have the right to do
after the expiration of six years after the Closing Date) or remove
any such books and records from the Office Building, Sellers shall,
before making such disposition or so removing such books and records,
give Purchaser a reasonable opportunity, at Purchaser s cost and
expense, to copy such books and records as it may select.
2. PURCHASE PRICE, PAYMENT, ALLOCATION, RISK OF LOSS.
(a) Upon the terms and subject to the conditions set forth
in this Agreement, Purchaser will pay to Sellers at the closing on the
Closing Date, subject to the provisions of Section 7(c) hereof, as the
aggregate purchase price for the Purchased Assets listed on Schedule
1.1 hereof, cash in the amount of $2,812,500 (which shall be paid by
wire transfer received before the close of banking business on the
Closing Date to an account or accounts designated by Sellers to
Purchaser in writing prior to the Closing Date), and 50,000 shares of
the common stock, $0.01 par value (the "Common Stock"), of SEACOR
Holdings (subject to adjustment in the event of any stock split, stock
dividend, or similar transaction affecting the outstanding SEACOR
Holdings common stock from the date hereof until the Closing Date),
allocated among each of the Sellers according to the provisions of
Section 2(b) hereof and subject to adjustment, credit and reserves as
follows:
(i) the purchase price shall be increased by the fair
market value, as determined by a physical audit or
inventory to be conducted jointly by Purchaser and
Sellers on or before December 31, 1996, of those
assets that are not on Sellers books but that
Purchaser believes will be necessary to operate
the business of Sellers, including engine parts,
supplies and spares (other than the spares carried
aboard the Vessels), vehicles, heavy equipment,
and other equipment. At the Closing, a list of
the assets of Sellers to be
acquired pursuant to this Section 2(a)(i) and a
statement of the fair market value of those assets
shall be attached as an exhibit to a letter
substantially in the form of Schedule 2.1 hereto,
which letter shall be signed by authorized
representatives of the Purchaser and the Sellers,
affirming the parties agreement to the results of
the joint inventory; provided that, the purchase
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price shall be further adjusted on the Closing
Date to account for any reduction or increase in
the above inventory (except for replacement with
comparable, serviceable parts) after the
completion of the physical audit;
(ii) the purchase price shall be adjusted for certain
events of loss as provided in Section 2(c) hereof;
and
(iii) the fifty thousand dollars ($50,000) xxxxxxx
money deposit made by Purchaser to Sellers
shall be credited against payment of the
aggregate purchase price.
In addition, as to all personal property taxes which have actually
been prepaid by Sellers, the Purchaser shall reimburse each Seller on
the Closing Date for all such prepaid property taxes, prorated from
the Closing Date to reflect the fact that Purchaser shall be
responsible for such taxes from and as of the Closing Date and Sellers
shall be responsible for such taxes to the
Closing Date. Purchaser shall be responsible for all sales, use, and
ad valorem taxes arising as a consequence of the purchase of the
Purchased Assets.
(b) The Purchaser and Sellers have agreed upon the
allocation of the purchase price to the various assets included in the
Purchased Assets, as set forth in Schedules 1.1 and 2.1 hereto.
Subject to the adjustments, credit and reserves provided in Section
2(a) hereof, Purchaser will make payments to each Seller for the
Purchased Assets being sold by it as set forth in said Schedules.
(c) As of and after the time at which the transactions
contemplated by this Agreement are consummated (the "Closing"), risk
of loss of the Purchased Assets purchased by Purchaser shall be borne
by Purchaser. Prior to the Closing, risk of loss of the Purchased
Assets shall be borne by Sellers. In the event of an actual,
constructive, agreed or compromised total loss ("Total Loss") of any
Purchased Asset prior to the Closing, the purchase price shall be
reduced by the allocated purchase price of the asset so lost as set
forth in Schedule 1.1 hereto, which Schedule 1.1 shall be conclusive
for the purposes of allocating purchase price in the event of a Total
Loss, and a pro rata portion of the value of the goodwill of the
Sellers. In such event, all insurance proceeds in connection with
such casualty shall be for the sole account of Sellers, and Purchaser
shall have no claim whatsoever to same. The purchase price shall not
be reduced in the event any of the Purchased Assets sustains a loss or
other casualty other than a Total Loss prior to the Closing, it being
understood and agreed that the sale and purchase of the Purchased
Assets shall be, except as otherwise set forth in this
Agreement, on an as is, where is basis at the time of inspection of
such assets (as set forth on Schedule 10.1 hereto), subsequent
ordinary wear and tear excepted. However, in the event of a loss of
or casualty to a Purchased Asset other than a Total Loss prior to the
Closing, the Seller of such asset agrees to arrange and pay for any
repair to such asset, or if appropriate and with the consent of
Purchaser, assign to Purchaser any claim relating to such asset under
such Seller s insurance policies, any insurance proceeds received by
or owed to such Seller on account of such asset, and any other claim
or cause of action relating to such asset, together with funds
sufficient to cover any self-insured or deductible amount payable in
connection with such casualty or loss. Purchaser shall have the
opportunity to make a full investigation of each Purchased Asset prior
to the Closing Date, and Purchaser accepts title to the Purchased
Assets without any warranty on the part of Sellers as to fitness for
any intended purpose, merchantability, or condition except as
otherwise provided herein.
3. ASSUMPTION OF CERTAIN CONTRACTS AND INDEMNITIES.
(a) Upon the terms and subject to the conditions set forth
in this Agreement, Purchaser will assume on the Closing Date by
appropriate instruments and will pay, perform and discharge, or cause
to be paid, performed and discharged, only such debts, obligations,
contracts and liabilities of each of the Sellers incurred up to and
including the Closing Date (A) arising under uncompleted orders
entered into by such Seller for the purchase of materials, supplies
and equipment for the requirements of the Sellers business in the
ordinary course and which are ordinarily expended, (B) arising under
such contracts, leases, plans and other
commitments set forth in Schedule 3.1 hereto, and (C) arising under
contracts the assignments of which are subject to the provisions of
Section 7(f) hereof, but only to the extent that, under the terms of
any such completed orders or other instruments referred to in (A), (B)
and (C), payment or performance by Sellers under the terms thereof is
required after (and not prior to) the Closing Date (such assumed
obligations to the extent so assumed, being hereinafter referred to
collectively as the "Assumed Liabilities"). Sellers shall be fully
indemnified by Purchaser against any such Assumed Liabilities in
accordance with the provisions of Section 15 of this Agreement. It is
expressly understood and agreed that, except for the Assumed
Liabilities, Purchaser has not agreed to and shall not assume any
other debts, obligations, contracts, or liabilities of any of the
Sellers (the "Retained Liabilities"), including but not limited to,
any of the following:
(i) any obligations or liabilities of Sellers under
this Agreement;
(ii) any debts, obligations, contracts or liabilities
for expenses, taxes and fees incident to the
preparation of this Agreement or the consummation
of the transactions contemplated hereby (other
than as provided elsewhere in this Agreement)
including, without limitation, all counsel and
special auditing fees and brokerage commissions,
if any;
(iii) any debts, obligations, contracts or
liabilities in respect of taxes, and reserves
for deferred taxes, in each case relating
only to periods ending on or before the
Closing Date;
(iv) any Environmental Costs and Liabilities (as that
term is defined in Section 9) of Sellers or any
predecessors or affiliated companies of Sellers
resulting from, caused by, or arising out of,
directly or indirectly, the conduct of the
business of the Sellers or the Sellers ownership,
operation, or lease of any properties or assets or
any assets previously used in the business by
Sellers or any predecessor or affiliated companies
of Sellers at any time prior to or on the Closing
Date, provided that, nothing herein is intended to
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affect any rights that Sellers may have against
any predecessor of Sellers;
(v) any and all liabilities and obligations of Sellers
arising from or relating to the employment or
termination of employment of any person with
respect to the business on or prior to the Closing
Date;
(vi) any liability or obligation of Sellers arising
under or in respect of any agreements,
undertakings or commitments to the extent that
payment or performance thereof is required, by the
terms thereof, prior to the Closing Date;
(vii) any liabilities of the business of the
Sellers relating to the Purchased Assets or
arising out of the operation of Sellers
business prior to the Closing Date; and
(viii) any debt, contract, liability, or obligation
of any Seller not expressly assumed by
Purchaser pursuant to this Section 3 and any
matter not to be assumed as expressly set
forth in any of the Schedules hereto.
(b) All debts, obligations, contracts and liabilities of
the Sellers not specifically assumed by the Purchaser pursuant to the
first sentence of Section 3(a) hereof shall remain the sole
responsibility of the Sellers, and Purchaser shall be fully
indemnified against such debts, obligations, contracts, and
liabilities by Sellers in accordance with the provisions of Section 15
of this Agreement.
4. ALTERNATE FORMS OF TRANSACTION; GUARANTEE.
(a) Purchaser may elect, by written notice to Sellers prior
to the Closing Date, to effect the purchase of assets and assumption
of obligations as contemplated by this Agreement through one or more
direct or indirect subsidiaries (either presently existing or
established for that purpose) of SEACOR Holdings, the parent of
Purchaser. In such event,
any transfers to and assumptions by the Purchaser contemplated hereby
shall, to the extent specified in such election, be made to and by
such subsidiaries.
(b) In the event of an election pursuant to paragraph (a)
above, the provisions of this Agreement shall be deemed to be amended
to the extent necessary to permit the carrying out of such election.
(c) SEACOR Holdings consents, acknowledges, and agrees that
50,000 shares of its common stock, $0.01 par value, are included as
part of the purchase price of the Purchased Assets. Notwithstanding
any election or lack of election made pursuant to this Section 4,
SEACOR Holdings agrees to guarantee the obligations of the Purchaser
to Sellers with respect to the delivery of the Common Stock as
provided in Section 2(a) hereof, and SEACOR Holdings further agrees to
guarantee the indemnification obligations of the Purchaser to Sellers
pursuant to Section 15 hereof; provided, however, that, Sellers shall
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not seek to enforce either of the above guarantees of SEACOR Holdings
unless and until Sellers have first sought performance of those
obligations from Purchaser and Purchaser shall have refused or been
unable to fulfill those obligations.
5. ACCESS TO PLANTS, PROPERTIES AND RECORDS.
(a) From and after the date of this Agreement, Sellers
shall afford to the Purchaser and its officers, attorneys,
accountants, environmental consultants, and other authorized
representatives of Purchaser reasonable access to all offices, plants,
properties, equipment, files, contracts, agreements, books of account,
tax returns of Sellers, and other
books and records of Sellers in order that Purchaser may have the
opportunity to make such further investigation as it shall desire to
make of the affairs of Sellers, and Purchaser shall be permitted to
make extracts from, or copies of, such books and records; and Sellers
shall furnish or cause to be furnished to Purchaser such financial and
operating data and other information as to the businesses and
properties of Sellers, including, but not limited to, current
operating information, financial statements, capital budgets,
management forecasts, ledgers, marketing reports, customer
sales/revenue breakdowns, compensation levels of all employees and
employment agreements, personnel files and records, vessel charter
contracts, and basic and master agreements and owner operating
agreements as Purchaser shall reasonably request. Notwithstanding the
foregoing, Sellers shall not be obliged to provide access to Purchaser
to any contracts which they are contractually bound to keep
confidential, provided that Sellers shall inform Purchaser as to the
existence of such contractual requirement and shall use best efforts
to obtain a release from the same for the benefit of Purchaser. If
the transactions contemplated by this Agreement shall, for any reason,
not be consummated, then Purchaser will treat as confidential all
information received from Sellers pursuant to this Section 5 or
otherwise and will return to Sellers all documents received or copies
made by Purchaser in accordance herewith.
(b) The Sellers agree to replace or repair spare parts
customarily carried aboard the Vessels which are taken out of spare
and used as a replacement on any Vessel prior to delivery of such
Vessel to Purchaser hereunder. The Sellers and Purchaser agree to
conduct
a joint inventory of all engine parts, supplies and spares (other than
spares customarily carried aboard the Vessels), vehicles, heavy
equipment, and other equipment that Purchaser intends to acquire from
Sellers, which joint inventory shall be completed by December 31,
1996. The results of the aforesaid joint inventory shall be set forth
on Schedule 2.1 and shall be used to make the adjustment to the
purchase price called for in Section 2(a)(i) hereof.
6. CLOSING DATE.
The purchase and sale provided for in this Agreement shall take
place at the offices of Xxxxxx Xxxxxx, L.L.P., counsel for Sellers, at
10:00 a.m., Central time, on January 3, 1997 (such time and date being
herein called the Closing Date), or such earlier date as the parties
may mutually agree. Notwithstanding the foregoing, the Closing Date
may be postponed to 10:00 a.m., Central time, on a date on or before
January 31, 1997, at the request of Purchaser if Purchaser is unable
to comply by the Closing Date with any of the conditions referred to
in Section 12 or 13 hereof, as the case may be, or at the request of
Sellers if they are, after the exercise of best efforts, unable, by
January 3, 1997, to obtain the consent of the Maritime Administration
to the sale of any Vessels that are subject to restrictions under a
Capital Construction Fund, which are conditions precedent to the
obligation of the other parties to close the transaction (unless such
conditions are waived by such other parties).
7. INSTRUMENTS OF TRANSFER, ETC.
(a) Subject to the provisions of Section 7(c) hereof, the
sale and transfer of the Purchased Assets shall be made at Purchaser s
expense (except as otherwise provided in
this Agreement) on the Closing Date by bills of sale, assignments and
other instruments of conveyance and transfer as shall be appropriate
to carry out the intent of this Agreement and as shall be sufficient
to convey to Purchaser all the right, title and interest of Sellers
to, and the right to full custody and control of, the Purchased
Assets, free and clear of any and all liens, charges, mortgages,
encumbrances and security interests whatsoever. All sales, use, and
ad valorem taxes and all filing and recording fees in connection with
such instruments of transfer shall be borne by Purchaser. In the case
of assignment of any right, contract, license, lease or other
instrument requiring the consent of another party thereto, Sellers
will use their best efforts to obtain such consent prior to the
Closing Date, subject to the provisions of Section 7(f) hereof.
(i) Without limiting the generality of the foregoing,
each Seller shall deliver the documents described
below, more specifically described and enumerated
in Schedules 7.1 (Galaxie), 7.2 (Moonmaid), and
7.3 (Triangle) hereto:
A. Customary bills of sale in recordable form,
transferring ownership of the Vessels owned
by it, including all appurtenances, stores,
outfitting, lubes, and fuel on board or on
shore or on order, broached or unbroached,
all navigational aids, and all spares on
board, warranting title to such Vessels, free
and clear of liens, mortgages, rights
in rem or any other encumbrances whatsoever
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other than certain trading restrictions as
specified in the respective schedules
attached hereto;
B. Customary forms required to transfer
ownership of the Vehicles owned by it,
warranting title free and clear of liens,
mortgages, security interests or any other
encumbrances whatsoever; and
C. Such other customary bills of sale,
assignments, documents and instruments as
more fully set forth in each respective
Schedule 7.1, 7.2, and 7.3 attached hereto.
(ii) The Sellers shall deliver any and all consents,
including resolutions and shareholder consents,
necessary for the sale and transfer of the
respective Purchased Assets owned by them as
listed on Schedules 7.1, 7.2, and 7.3, and any and
all consents, permits, licenses, and other
authorizations held by Sellers that are necessary
for the continuing use and operation of the
Purchased Assets by the Purchaser as contemplated
hereby.
(b) On the Closing Date, Purchaser will deliver an
instrument substantially in the form of Schedule 7.4 hereto evidencing
its assumption of the obligations being assumed by it hereunder.
(c) Notwithstanding the foregoing, each Vessel to be
delivered hereunder shall be delivered to Purchaser at the time of
Closing on the Closing Date immediately following the receipt by
Sellers of the funds to be wire transferred by Purchaser pursuant to
Section 2(a) of this Agreement, wherever the Vessel shall then be
located, provided, however, that should such delivery be impossible or
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unsafe due to adverse weather conditions or some damage casualty to
the Vessel in question, such delivery shall be delayed until such
adverse weather subsides or such damage casualty is repaired.
Sellers warrant that all of the Vessels are presently documented with
the United States Coast Guard. At the time of Closing, each Vessel
owner shall furnish to counsel for Sellers, viz: Xxxxxx Xxxxxx,
L.L.P., the original and one copy of a duly executed Xxxx of Sale on
the standard U.S. Coast Guard form (CG-1340), in recordable form,
which document shall be held in escrow and in trust with respect to
each respective Vessel pending receipt of the cash consideration as
specified in this contract with respect to that Vessel. Xxxxxx Xxxxxx,
L.L.P., shall, upon receipt by Sellers of the stated consideration
with respect to each such Vessel, be fully authorized to deliver the
documents with respect to that particular Vessel in whatever manner
and fashion and to whomever they deem appropriate. The original
Certificate of Documentation of each Vessel should either be aboard
the Vessel or in the possession of Xxxxxx Xxxxxx, L.L.P., at the time
of Delivery and each such Certificate of Documentation shall become
the property of Purchaser at the time of Delivery, with the
understanding and agreement that such Certificates of Documentation
will be surrendered to the United States Coast Guard at the time each
Vessel is redocumented in the
name of Purchaser. In addition, the applicable Seller of each Vessel
shall provide to Purchaser an opinion of counsel for Sellers in form
and substance satisfactory to Purchaser.
(d) On the Closing Date, Sellers will by appropriate
instrument constitute and appoint Purchaser, its successors and
assigns, and its true and lawful attorney or attorneys, with full
power of substitution, in the name of Sellers but on behalf of and for
the benefit of and at the expense of Purchaser, to institute,
prosecute, defend, and compromise any and all actions, suits, or
proceedings in respect of any Purchased Asset, but only if and to the
extent that Sellers do not or cannot, after demand and presentment,
indemnify Purchaser against any occurrence indemnifiable pursuant to
Section 15(b) hereof. The foregoing power is coupled with an interest
and shall be irrevocable by any Seller or by its dissolution or in any
manner or for any reason. Purchaser shall retain for its own account
any amounts collected pursuant to the foregoing powers, including any
sums payable as interest in respect thereof, and Sellers will pay to
Purchaser, when received, any amounts which shall be received by
Sellers in respect of Purchaser's efforts pursuant to this paragraph.
(e) At any time and from time to time after the Closing
Date, Sellers will, upon the request and at the expense of Purchaser
(except as to subsequent deeds as provided in paragraph (c) above),
do, execute, acknowledge and deliver, or will cause to be done,
executed, acknowledged or delivered, all such further acts, deeds,
assignments, transfers, conveyances, powers of attorney or assurances
as may be required for the better assigning, transferring, granting,
conveying, assuring and confirming to Purchaser, or for aiding and
assisting in the collection of or reducing to possession by Purchaser,
any of the Purchased Assets.
(f) Nothing contained in this Agreement shall be construed
as an attempt to assign (i) any contract which is in law nonassignable
without the consent of the other party or parties thereto unless such
consent shall have been given, or (ii) any contract or claim as to
which all the remedies for the enforcement thereof enjoyed by Sellers
would not, as a matter of law, pass to Purchaser as an incident of the
assignments provided for by this Agreement. In order, however, that
the full value of every contract and claim of the character described
in clauses (i) and (ii) of the preceding sentence and all claims and
demands on such contracts may be realized, each Seller, by itself or
by its agents, will, at the request and expense and under the
direction of Purchaser, in the name of such Seller or otherwise as
Purchaser shall specify and as shall be permitted by law, take all
such actions and do or cause to be done all such things as shall in
the opinion of Purchaser be necessary or proper (x) in order that the
rights and obligations of each respective Seller under such contracts
shall be preserved and (y) for, and to facilitate, the collection of
the moneys due and payable, and to become due and payable, to such
Seller in and under every such contract and claim and in respect of
every such claim and demand, and such Seller shall hold the same for
the benefit of and shall pay the same over to Purchaser. The
foregoing covenant shall survive indefinitely.
8. OTHER ACTIONS BY THE SELLERS AND THE STOCKHOLDERS.
Sellers agree that, on and as of the Closing Date, Purchaser
and its affiliates shall have the right to use the name Galaxie and
the logo of Galaxie in the marine transportation business, and Sellers
shall deliver to Purchaser on the Closing Date a written statement
addressed to the Secretary of State of the State of Louisiana
authorizing Purchaser and its affiliates to use the name Galaxie and
the logo of Galaxie in the marine transportation business. Sellers
further agree that, so long as Purchaser or its affiliates continue to
use the name Galaxie or the logo of Galaxie commercially in the
marine transportation business, Sellers shall not use the name
Galaxie or the logo of Galaxie in the marine transportation
business. The Purchaser reserves the right to retain the names of all
acquired Vessels.
9. REPRESENTATIONS AND WARRANTIES OF SELLERS.
Each of the Sellers, jointly and severally, hereby represents and
warrants to, and covenants and agrees with, Purchaser, as of the date
hereof and as of the Closing Date, that:
(a) Each of the Sellers is a corporation duly organized,
validly existing and in good standing under the laws of the State of
Louisiana, having its principal place of business and its registered
office at 000 Xxxxxx Xxxxxx, X.X. Xxx 000, Xxxxxxxxx, Xxxxxxxxx 00000.
Each of the Sellers has full power and authority to own or hold its
properties and to conduct its business as presently conducted. Each
Seller is licensed or qualified to do business as a foreign
corporation or entity, as the case may be, and in good standing in all
jurisdictions
wherein (i) it owns or leases property to be leased by Purchaser from
that Seller, or (ii) its failure to be so licensed or qualified would
have a material adverse effect on the Purchased Assets.
(b) The execution and delivery of this Agreement by each
Seller, the performance by each Seller of its covenants and agreements
hereunder and the consummation by each Seller of the transactions
contemplated hereby have been duly authorized by all necessary actions
(corporate and other) of such Seller. This Agreement has been duly
executed and delivered by each of the Sellers and Stockholders and
constitutes a valid and legally binding obligation of each Seller and
Stockholder, enforceable against each Seller and Stockholder in
accordance with its terms.
(c) Neither the execution and delivery of this Agreement,
nor the consummation of the transactions contemplated hereby, violates
any provision of the articles of incorporation or by-laws of the
Sellers or any applicable statute, ordinance, regulation, order,
judgment or decree of any court or governmental agency, or conflicts
with or will result in any breach of, or accelerate the performance
required by, any of the terms of or constitute a default under or
result in the termination of or the creation of any lien pursuant to
the terms of any contract or agreement to which any of the Sellers is
a party or by which any of them or any of the Purchased Assets is
bound.
(d) All of the issued and outstanding shares of capital
stock of Galaxie and Moonmaid are owned by one or more of the
Stockholders. Ninety-six percent (96%) of the
issued and outstanding shares of capital stock of Triangle is owned by
the Stockholders. All of the outstanding shares of capital stock of
each of the Sellers have been validly issued and are fully paid and
non-assessable. There are no subscriptions, warrants, options, calls,
commitments or agreements to which any of those Sellers is bound
relating to the issuance or sale of shares of its capital stock or
other securities.
(e) The Purchased Assets include all of the vessels of
Sellers, along with the related operating assets of Sellers, excluding
real property, used in or related in any way to the offshore service
business of Sellers as presently conducted, and such assets constitute
substantially all of the assets used by Sellers during the last three
fiscal years in the conduct of such business. Each Seller has good
and marketable title to the Purchased Assets owned by it, free and
clear of any defect in title and free and clear of all liens, charges,
encumbrances, mortgages or security interests whatsoever, except as
set forth in Schedules 7.1, 7.2, and 7.3. Each Seller has the right
to sell and transfer its Purchased Assets to Purchaser, and upon
transfer of the Purchased Assets to Purchaser pursuant hereto,
Purchaser will acquire good and marketable title and all of Sellers
right, title, and interest in and to the Purchased Assets, free and
clear of any defect in title and free and clear of all liens, charges,
encumbrances, mortgages, or security interests whatsoever. All of the
Vessels have valid USCG Certificates of Inspection, and the Vessels
designated in Part II of Schedules 7.1, 7.2, and 7.3 as ABS classed,
are in class as provided in said Schedules, free of recommendations.
None of the other Purchased Assets (or the uses to which they are put)
fails to conform with any applicable
law, ordinance or regulation in a manner which is likely to be
material to the operations of the Sellers business or the continuing
use and operation of those Purchased Assets by the Purchaser as they
have been used by Sellers.
(f) Each of the Sellers delivered to Purchaser its balance
sheet as of December 31, 1995, together with the related statements of
operations, retained earnings and changes in financial position,
including the notes thereto, if any, all for the year then ended,
which audited financial statements have been reported on by
Xxxxxxx-Xxxxx and Company, the certified public accountants for
Sellers (such financial statements are herein referred to as the
"Financial Statements"). The Financial Statements are true and
correct in all material respects and have been prepared in accordance
with generally accepted accounting principles applied consistently
throughout the periods involved. The Financial Statements fully and
fairly present the financial condition of the Sellers in all material
respects as of the dates thereof and the results of the operations of
Sellers for the periods indicated. The balance sheets constituting a
part of each of the Financial Statements fairly reflects all
liabilities of the Sellers of the types normally reflected in balance
sheets as at the date thereof. True, correct and complete copies of
each of the Financial Statements have been delivered to Purchaser.
(g) Except as set forth in Schedule 9.1 or, as to events
occurring after the date of this Purchase Agreement, in an addendum to
Schedule 9.1 to be filed on the Closing Date, subsequent to September
30, 1996, and, in the case of Purchased Assets, since the date that
Purchaser inspected those Purchased Assets, there has not been any (i)
material adverse
change or prospective change in the condition of the Sellers,
financial or otherwise, or in the results of its operations; (ii)
material damage or destruction (whether or not insured) affecting the
Purchased Assets or the business operations of Sellers; (iii) labor
dispute or, to the best of the knowledge of any of the Sellers,
threatened labor dispute involving any of the employees of any of the
Sellers; (iv) actual or, to the best of the knowledge of any of the
Sellers, threatened dispute pertaining to the business with any major
supplier or customer of Sellers; or (v) other event or condition of
any character, known to any of the Sellers or which in the exercise of
reasonable diligence should be known to any of them, not disclosed in
this Agreement pertaining to and materially adversely affecting the
business.
(h) Each Seller has filed or caused to be filed all
Federal, state, municipal and other tax returns, reports and
declarations required to be filed by it and, where applicable, has
paid or reserved (as reflected on the balance sheet in accordance with
generally accepted accounting principles) for any and all taxes,
imposts, assessments, levies, or other governmental charges of any
kind whatsoever, including, but not limited to, income, franchise,
sales, use, ad valorem, unemployment, withholding, social security,
worker s compensation and estimated income and franchise taxes
(including any interest, penalty, fine or addition thereto) ("Taxes")
which have been or shall become due with respect to all taxable
periods ending at or prior to the date hereof (and will pay or reserve
(in accordance with generally accepted accounting principles) for all
taxes which shall become due with respect to all taxable periods, or
portion thereof, ending at or prior to the Closing Date). No
deficiency in payment
of any Taxes for any period, except as listed on Schedule 9.2(a) and
for which scheduled deficiencies the Sellers have set aside adequate
reserves, has been asserted by any taxing authority which remains
unsettled at the date hereof. No Seller has been (or with notice or
lapse of time or both, would be) in violation of any applicable law
relating to the payment or withholding of Taxes. Each Seller has duly
and timely withheld from (x) all employee salaries, wages, and other
compensation and (y) all other payments, and paid over to the
appropriate taxing authorities, all amounts required to be so withheld
and paid over for all periods under all applicable laws. None of the
Purchased Assets is an asset or property that is or will be required
to be treated as being (i) owned by any Person (other than the
Purchaser) pursuant to the provisions of Section 168(f)(8) of the
Internal Revenue Code of 1954, as amended and in effect immediately
before the enactment of the Tax Reform Act of 1986, or (ii) tax-exempt
use property within the meaning of Section 168(h)(1) of the Internal
Revenue Code of 1986, as amended. Set forth in Schedule 9.2(b) is an
itemization of all taxes other than income taxes which are due or
shall become due with respect to all taxable periods ending on or
prior to the Closing Date.
(i) Annexed hereto as Schedule 9.3 is a list of all
policies of liability, theft, environmental liability, fidelity, life,
fire, casualty, hull, marine protection and indemnity and other forms
of insurance held by Sellers and relating to their business
(specifying the type of coverage, insurer, policy number, policy
period and named insured). All such policies are in full force and
effect and all premiums due thereon prior to or on the Closing Date
have been
paid. Sellers have complied in all material respects with the
provisions of such policies. Sellers have endeavored to place all
policies of insurance held by them with solvent underwriters.
(j) Set forth in Schedule 3.1 are a list and brief
description of (i) all charters, contracts, agreements, licenses,
leases, arrangements (written or oral) and other documents to which
any Seller is a party or by which any Seller or any of its assets is
bound and which are to be assigned to, and assumed by, Purchaser
pursuant to this Agreement; and (ii) obligations and liabilities of
Sellers pursuant to uncompleted orders for the purchase of materials,
supplies, equipment and services for the requirements of the conduct
of business with respect to which the remaining obligation of any of
Sellers is in excess of $5,000 in the aggregate and which are to be
assigned to, and assumed by, Purchaser pursuant to this Agreement
(which Schedule shall be updated as of December 31, 1996, as
appropriate. None of Sellers is in default in the performance of any
covenant or condition under any of the aforementioned contracts and,
to the knowledge of any of the Sellers after reasonable inquiry, no
claim of such a default has been made. To the knowledge of the
Sellers, no other party thereto is in default in the performance of
any covenant or condition under any of the aforementioned agreements.
(k) Set forth in Schedule 9.4(a) is a list of all
agreements between Sellers and the employees of Sellers with regard to
compensation, whether individually or collectively, except oral
agreements terminable by Sellers on not more than 30 days notice
without penalty,
and set forth in Schedule 9.4(b) attached hereto is a list of all (i)
employees of Sellers and their respective positions, job categories,
years of service, and salaries; and (ii) agents or other
representatives retained or utilized by Sellers and the basis on which
they are compensated. All employees who are absent from active
employment (by reason of disability, leave of absence, maintenance and
cure, or otherwise) are separately listed on Schedule 9.4(c). There
are no collective bargaining, employment, consultancy or similar
agreements with respect to current or former employees of the
business. No union or other collective bargaining unit has been
certified or recognized by Sellers as representing any of its
employees.
(l) Except as set forth on Schedule 9.5, there are no
pending or, to the best knowledge of the Sellers, threatened (A)
strikes, work stoppages, slowdowns, grievances or other labor disputes
with respect to any employees of the Sellers or (B) complaints or
charges with any federal, state or local governmental agency or court,
with respect to any employees of the business.
(m) (i) Set forth in Schedule 9.6(a) is a list of all
Environmental Permits held by Sellers pursuant to or required by any
Environmental Law to operate the Purchased Assets and operations of
the Sellers in the manner in which they have heretofore been operated.
(ii) Except as set forth in Schedule 9.6(b): (A) the
Purchased Assets and operations of the Sellers that are being
purchased by the Purchaser comply with all such Environmental Permits
and the Environmental Laws; (B) neither any of the Purchased Assets
nor any of the operations of the Sellers that are being purchased by
Purchaser is subject to or has given or, insofar as Sellers can
reasonably foresee, may give rise to Environmental Costs and
Liabilities; (C) neither any of the Sellers nor any predecessor of the
Sellers nor any Purchased Asset or operation of the Sellers purchased
by the Purchaser is subject to any outstanding written Order or
Contract respecting any Environmental Laws; (D) there are no
investigations or judicial or administrative proceedings under any
Environmental Law pending or, to Sellers knowledge after reasonable
inquiry, threatened against any of the Sellers or any of the Purchased
Assets or any of the operations of any of the Sellers; (E) neither any
of the Sellers nor any operator, lessee, or prior owner or operator of
any of the Purchased Assets or operations of the Sellers being
purchased by the Purchaser has stored, treated, disposed of,
transported, or arranged for the disposal of any Hazardous Material;
(F) there are not now, nor, to the knowledge of the Sellers, have
there ever been, any underground storage tanks, aboveground storage
tanks, dikes or impoundments, any asbestos-containing materials, any
polychlorinated biphenyls, or any radioactive substances on, in or
under any real property owned, leased or operated by any of the
Sellers or any of their predecessors; and (G) no lien in favor of any
governmental authority for any liability under any Environmental Law,
or for damages arising from or costs incurred by such governmental
authority in response to a Release of a Hazardous Material into the
environment, has been filed or attached to any of the Purchased Assets
or any of the locations upon which the operations of the Sellers are
conducted. Purchasers shall not incur Environmental Costs and
Liabilities in excess of $5,000
in the aggregate to obtain the stormwater permit, oil spill
contingency plan, or hazard communication program listed on Schedule
9.6(b).
(iii) For the purpose of this Section 9(m):
(A) Contract means any oral or written contract,
agreement, or other arrangement;
(B) Environmental Costs and Liabilities means any
and all losses, liabilities, whether known or
unknown, liquidated or contingent, obligations,
damages, fines, penalties, judgments, actions,
claims, costs and expenses (including, without
limitation, fees, disbursements and expenses of
legal counsel, experts, engineers and consultants
and the costs of investigation and feasibility
studies and remedial action under any
Environmental Law) arising from or under any
Environmental Law;
(C) Environmental Law means any federal, state,
local, or foreign law (including common law),
relating to the environment, natural resources, or
public or employee health and safety and includes,
but is not limited to, the Comprehensive
Environmental Response, Compensation and Liability
Act ("CERCLA"), 42 U.S.C. ss. 9601 et seq., the
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Hazardous Materials Transportation Act, 49 U.S.C.
ss. 1801 et seq., the Resource Conservation and
-- ----
Recovery Act ("RCRA"), 42 U.S.C. ss. 6901 et seq.,
-- ----
the Clean Water Act, 33 U.S.C. ss. 1251 et seq., the
-- ----
Clean Air Act, 42 U.S.C. ss. 7401 et seq., the Toxic
-- ----
Substances Control Act, 15 U.S.C. ss. 2601 et seq.,
-- ----
the Oil Pollution Act of 1990, 33 U.S.C. ss. 2701
et seq., the Federal Insecticide, Fungicide, and
-- ----
Rodenticide Act, 7 U.S.C. ss. 136 et seq., and the
-- ----
Occupational Safety and Health Act, 29 U.S.C. ss.
651 et seq., as such laws have been amended or
-- ----
supplemented, and the regulations promulgated
pursuant thereto, and all analogous state, local
or foreign statutes;
(D) Environmental Lien means any lien in favor of
any governmental authority arising under
Environmental Laws;
(E) Environmental Permit means any permit, approval,
authorization, license, variance, registration, or
permission required under any applicable
Environmental Law or Order;
(F) Hazardous Material means any substance, material
or waste which is regulated by any governmental
authority, including, without limitation, any
material, substance or waste which is defined as a
hazardous waste, hazardous material,
hazardous substance, extremely hazardous
waste, restricted
hazardous waste, contaminant, toxic waste or
toxic substance or any analogous term under any
provision of Environmental Law, which includes,
but is not limited to, petroleum, asbestos, and
polychlorinated biphenyls;
(G) Order means any order, injunction, judgment,
decree, ruling, assessment or arbitration award;
(H) Release means any release, spill, emission,
leaking, pumping, pouring, dumping, emptying,
injection, deposit, disposal, discharge,
dispersal, leaching, or migration on or into the
indoor or outdoor environment or into or out of
any property.
(n) Set forth in Schedule 9.7(a) is a list and brief
description of all of the patents, registered and common law
trademarks, service marks, trade names, copyrights, licenses and other
similar rights of Sellers and applications for each of the foregoing
(the "Intellectual Property"). The Sellers, individually or
collectively, as appropriate, own all right, title and interest in and
to all the Intellectual Property. The Intellectual Property so listed
constitute all the proprietary rights necessary to the conduct of the
business of Sellers as currently conducted; no adverse claims have
been made and no dispute has arisen with respect to any of the
Intellectual Property; and the operations of Sellers and the use by
Sellers of such Intellectual Property do not involve claimed
infringement of any patent, trademark, service xxxx, trade name,
copyright, license or similar right. Except as set forth in Schedule
9.7(b),
there are no other Persons or businesses having the right to use or,
to the knowledge of Sellers and the Stockholders after reasonable
inquiry, using the name of Galaxie Marine Service, Inc., or any
variation thereof in the businesses conducted by Sellers, and no
persons or businesses otherwise using any of the Intellectual
Property, including without limitation, the name of Galaxie Marine
Service, Inc., or any variant thereof, have ever attempted to restrain
Sellers from using such name or variant thereof.
(o) Set forth in Schedule 9.8 is a list and brief
description of all pending litigation involving any Seller or any of
the Purchased Assets. There are no actions, suits, proceedings or
investigations pending or, to the knowledge of the officers of Sellers
after reasonable inquiry, threatened against or affecting any of
Sellers, at law, or in equity or admiralty, or before or by any
Federal, state, municipal or other governmental department,
commission, board, bureau, agency or instrumentality, or the
likelihood of any injunction or order which, individually or in the
aggregate, may result in any material adverse change in the business,
operations or properties of Sellers or which could result in a lien,
claim, or judgment against any Purchased Asset (except for lawsuits
and threatened lawsuits listed on Schedule 9.8 involving claims that
could result in a lien on a Vessel by operation of law) or which
could prevent or jeopardize the transactions contemplated hereby.
None of the Sellers is, to the knowledge of any officer thereof after
reasonable inquiry, in violation of or default with respect to any
statute, ordinance, regulation, permit, order, writ, injunction or
decree of any court or Federal, state or local governmental agency or
instrumentality, violation of which
would result in a material adverse change in the business, operations
or properties of Sellers or which could prevent or jeopardize the
transactions contemplated hereby. In the operation of their business,
the Sellers have complied with all laws relating to the employment of
labor, including any provisions thereof relating to wages, hours,
collective bargaining and the payment of social security and similar
taxes, and Sellers are not liable for any arrearages of wages or any
taxes or penalties for failure to comply with any of the foregoing.
(p) Each of the Sellers is a citizen of the United States
within the meaning of Section 2 of the Shipping Act, 1916, as amended,
qualified to engage in the coastwise trade, and is not a foreign
person within the meaning of Sections 897 and 1445 of the Internal
Revenue Code of 1986, as amended.
(q) No consent, approval or authorization of, or
declaration or filing with any governmental authority is required on
the part of Sellers in connection with the execution, delivery and
performance of this Agreement and consummation of the transactions
contemplated hereby, except the consent of all appropriate agencies to
the assignment of any permits necessary for use of the Purchased
Assets or operation of the business of the Sellers, as listed in
Schedule 9.9. No Seller is a party to a Capital Construction Fund
Agreement.
(r) Sellers have provided to Purchaser within the time
required by the Letter of Intent dated as of October 24, 1996, between
the Purchaser and Sellers all information required to be provided
pursuant to said Letter of Intent and such additional information as
Purchaser has requested, including the following information:
(i) a list of all drydockings due and the date due
within twelve months following October 24, 1996;
(ii) a summary of all maintenance and repair expenses
for the last three (3) years, reports or
information on drydockings performed in the last
three (3) years, and a list by vessel of engine
change outs ;
(iii) a list of all spares, fuel, lubricants, and
inventories both on the Vessels and ashore,
primarily relating to, but not limited to,
vessels and vehicles, and the vessel charter
agreements that set forth the fuel and
lubricants owned by Sellers with respect to
each such Vessel;
(iv) notice of any lawsuits;
(v) a description of current insurance policies,
including the premiums and deductibles under such
policies and a schedule of all claims made against
such policies for the three years prior to the
date of this Agreement;
(vi) complete copies of all Capital Construction Fund
Agreements to which any of the Sellers are party;
(vii) copies of United States Coast Guard
Certificates of Inspection and ABS Loadline
and Hull and Machinery Certificates for each
Vessel having such certificates, and a list of all
Vessels that do not have such certificates;
(viii) any orders, permits, or licenses;
(ix) a list of customers for each vessel, and customer
rankings by revenue for 1994, 1995, and 1996
through October 31;
(x) lost time accident statistics for the three (3)
year period ending on the date of this Agreement;
(xi) a schedule of administrative employees (i.e., non-
seagoing employees) of each of the Sellers, listed
by name, position, years of service, and location;
(xii) copies of the Sellers medical and dental
plans;
(xiii) a schedule of vehicles included in the
Purchased Assets, including description,
vehicle ID number, and mileage;
(xiv) the 1993, 1994, and 1995 audited financial
statements for each of the Sellers;
(xv) copies of any equipment or other lease agreements
to which any of the Sellers is party;
(xvi) copies of all pleadings relating to any
outstanding lawsuits, copies of any
outstanding judgments, copies of any
settlement agreements or court or
administrative orders requiring continuing
or future action or payment by any of the Sellers,
copies of any notices of potential litigation or
notices of actual or potential violations of any
law or regulation by any of the Sellers;
(xvii) copies of all permits, licenses, or other
papers required by any governmental authority
and held by any Seller;
(xviii) a schedule setting forth all employees of the
Seller who are presently either unfit for
duty, restricted to light duty, or who have
lawsuits pending against the Sellers;
(xix) a schedule setting forth all non-employees
who have health insurance coverage through
one of the Sellers;
(xx) copies of all current vessel charter parties and a
schedule of all written or verbal charter rate
commitments for each Vessel and the length of time
each rate is held firm; and
(xxi) all agreements regarding options on further
vessels.
(s) No representation or warranty made under any Section
hereof and none of the information furnished by Sellers or the
Stockholders set forth herein, in the exhibits hereto or in any
document delivered by Sellers or the Stockholders to Purchaser, or any
authorized representative of Purchaser, pursuant to this Agreement
contains any untrue statement of a material fact or omits to state a
material fact necessary to make the statements herein or therein not
misleading.
(t) Investment Intention
--------------------
(i) Each of the Sellers is acquiring the shares of
Common Stock of SEACOR (to be acquired by it pursuant to this
Agreement) for its own account, for investment purposes only and not
with a view to or in connection with the public resale or distribution
(as such term is used in Section 2(11) of the Securities Act of 1933,
as amended (the "Securities Act") thereof, and except as contemplated
by this Agreement and the Investment and Registration Rights Agreement
(defined below), such Seller is not a party to any agreement,
undertaking, arrangement, obligation or commitment providing for any
such resale or distribution. Each Seller understands that the shares
of Common Stock of SEACOR Holdings to be received by it will not have
been registered under the Securities Act and cannot be sold unless
subsequently registered under the Securities Act or an exemption from
such registration is available. Each Seller hereby acknowledges that
the certificates delivered to it evidencing its shares of Common Stock
of SEACOR Holdings shall be legended substantially to the effect
provided in the previous sentence and as provided in the Investment
and Registration Rights Agreement. Each Seller and each Stockholder
is an accredited investor within the meaning of Rule 501(a) of
Regulation D under the Securities Act, or alone or together with such
Seller s or Stockholder s purchaser representative, has such knowledge
and experience in financial and business matters that such Seller or
Stockholder is capable of evaluating the relative merits and risks of
the prospective investment in the shares of Common Stock and able to
bear the economic consequences thereof.
(ii) Each of the Sellers acknowledges and is aware that
no representations or warranties as to the shares of Common Stock of
SEACOR Holdings are made other than as expressly set forth in this
Agreement.
(u) Sales and Use Taxes: Any sales or use taxes payable as
a result of the sale of the Purchased Assets pursuant to this
Agreement shall be for Purchaser s account. Sellers represent and
warrant that they are engaged primarily in the offshore service vessel
industry, and that they are not now nor have they been in the past,
engaged in the business of purchase and sale of vessels and related
equipment. Any previous sales of vessels and related property made by
Sellers have been sales of depreciated, obsolete, or surplus vessels
or equipment as an incident of the business described above, and
Sellers have never been assessed, or required to remit, sales taxes in
connection with any such sale.
10. REPRESENTATIONS AND COVENANTS OF PURCHASER.
Purchaser represents and warrants to, and covenants and agrees
with, Sellers, as of the date hereof and as of the Closing Date, that:
(a) Purchaser is a corporation duly organized, validly
existing and in good standing under the laws of the State of
Louisiana, and has full corporate power and authority to acquire the
Purchased Assets and to assume the obligations provided for in this
Agreement.
(b) The execution and delivery of this Agreement by
Purchaser, the performance by Purchaser of its covenants and
agreements hereunder and the consummation by Purchaser of the
transactions contemplated hereby have been duly authorized by all
necessary
corporate action on the part of Purchaser. This Agreement has been
duly executed and delivered by Purchaser and constitutes a valid and
legally binding obligation of Purchaser, enforceable against Purchaser
in accordance with its terms.
(c) Neither the execution and delivery of this Agreement,
nor the consummation of the transactions contemplated hereby, violates
any provision of the articles of incorporation or by-laws of Purchaser
or any applicable statute, ordinance, regulation, order, judgment or
decree of any court or governmental agency, or conflicts with or will
result in any breach of, or accelerate the performance required by,
any of the terms of or constitute a default under or result in the
termination of or the creation of any lien pursuant to the terms of
any contract or agreement to which Purchaser is a party or by which
Purchaser or any of its assets is bound.
(d) Purchaser is a citizen of the United States within the
meaning of Section 2 of the Shipping Act, 1916, as amended.
(e) No consent, approval or authorization of, or
declaration or filing with any governmental authority is required on
the part of Purchaser in connection with the execution, delivery and
performance of this Agreement, except for the filing by SEACOR
Holdings of its Registration Statement on Form S-3 with the SEC, any
filings, consents, or approvals in connection therewith, and the
declaration of effectiveness thereof by the SEC, all as contemplated
by the Investment and Registration Rights Agreement referred to in
Section 25 of this Agreement.
(f) Purchaser has provided to Sellers, in connection with
Sellers performance of due diligence, copies of Purchaser s annual
reports on Form 10-K for the years ended December 31, 1993, 1994, and
1995, quarterly reports on Form 10-Q for the first three fiscal
quarters of 1996, and all current reports of Form 8-K filed by
Purchaser with the SEC since December 31, 1995. Purchaser has also
provided Sellers with copies of all press releases, SEC filings,
publicly available financial statements, and other material
announcements issued by the Purchaser between October 24, 1996, and
December 3, 1996, that describe the activities of the Purchaser. The
annual, quarterly, and current reports are hereinafter referred to as
Purchaser Reports. Purchaser represents and warrants that the
Purchaser Reports did not on their respective dates of filing by the
Purchaser with the SEC contain any misstatements of any material fact
or omit to state a material fact necessary in order to make the
statements made therein, in light of the circumstances in which they
were made, not misleading.
(g) Purchaser will cooperate fully with Sellers to obtain
any and all approvals and consents necessary to effect the
transactions contemplated by this Agreement.
(h) Purchaser either has, or has firm commitments to
obtain, all of the cash portion of the purchase price.
(i) Subsequent to the date of the last Purchaser Report,
there has not been any material adverse change in the financial
condition, results of operations, or business of the Purchaser.
(j) Subsequent to the date of the latest balance sheet of
Purchaser included in the Purchaser Reports, there has been no stock
split, stock dividend, reorganization, or similar transaction
affecting the number of outstanding shares of common stock of SEACOR
Holdings.
(k) Purchaser has inspected those Vessels listed on
Schedule 10.1 hereto as of the dates indicated on the foregoing
schedule and, at the Closing, shall indicate in an addendum to
Schedule 10.1 the dates of inspection of all other Vessels to be
acquired from Sellers.
11. SELLERS COVENANTS PRIOR TO CLOSING.
Prior to the Closing Date, Sellers covenant and agree with
Purchaser as follows:
(a) Sellers shall conduct their business and operations in
the ordinary course and in substantially the same manner in which they
have in the past been conducted and will use their reasonable efforts
to maintain, preserve and protect the Purchased Assets (including good
will) until closing; such conduct shall include but not be limited to:
(i) each Seller will follow all normal drydock and
maintenance practices and replacement of spares in
operating its fleet and will not defer any
maintenance;
(ii) each Seller will maintain continuity in its
personnel practices and procedures and will
promptly notify Purchaser if a key employee gives
notice of leave;
(iii) each Seller will provide prior notification
to Purchaser in the event a Vessel will be
drydocked;
(iv) each Seller will notify Purchaser of its knowledge
after reasonable inquiry of the occurrence of any
insurable event;
(v) each Seller will notify Purchaser promptly if it
learns of any actual or potential lawsuit, court
order, settlement, investigation by any
governmental authority, or administrative action,
including any notice of violation or potential
violation of any law or regulation that may
materially affect any of the assets of or the
value of any of the assets of any of the Sellers;
(vi) no Seller will incur liabilities other than
in the ordinary course of business or enter
into charters for its Vessels which have a
term of longer than six months without first
obtaining the prior written agreement of
Purchaser, which consent will not be
unreasonably withheld;
(vii) Sellers will use their best efforts to
preserve their respective present business
organizations intact and keep available the
services of their present employees, but
Sellers will not materially change the
employment arrangements for those employees
other than in the ordinary course;
(viii) no Seller will make any material changes in
its customary method of operations, including
marketing and pricing policies and
maintenance of business premises, fixtures,
furniture, equipment and Vessels, except that
Sellers shall terminate their vacation policy
effective on the close of business on
December 31, 1996;
(ix) no Seller will modify, amend or cancel any
existing contracts or leases which are included in
Purchased Assets or which are to be assumed by
Purchaser in accordance with this Agreement;
(x) each Seller will pay all amounts payable by it
under any contract, order or other undertaking
timely and in the ordinary course of business;
(xi) each Seller agrees not to use any proceeds of any
Capital Construction Fund for any vessel presently
under construction or for any other new vessel;
and
(xii) no Seller will take any action which would
make any of the representations and
warranties in this Agreement untrue at
Closing Date.
Each Seller further agrees that it will not enter into any
contract for the sale, refinancing or chartering for more than six
months of any of the Purchased Assets without first obtaining
Purchaser s prior written consent, which consent shall not be
unreasonably withheld.
Each Seller shall maintain its books and records in a manner that
fairly represents its income, expenses and liabilities and make those
books and records available to Purchaser during reasonable business
hours.
(b) Each Seller shall permit Purchaser and its
representatives access to inspect and survey the Vessels upon
reasonable notice and at times reasonably convenient to each Seller
and its customers. Each Seller agrees to cooperate to make any Vessel
available on a reasonable basis and cooperate in accessing voids and
other reasonable areas customarily inspected on vessels and to make
the Vessels current log books available for Purchaser s inspection.
(c) Purchaser and Sellers agree that Purchaser and its
representatives intend to drydock vessels constituting not more than
20% of the Sellers fleet. If Purchaser wishes to drydock a Vessel or
Vessels not already scheduled to be drydocked in the normal course of
Sellers business, then Sellers agree to cooperate with Purchaser.
The cost of such drydocking shall be for Purchaser s account but the
cost of moving such Vessel or Vessels to the dock shall be for the
Seller s account. Whenever practicable, drydockings will be performed
at facilities customarily utilized by Sellers for drydocking vessels.
(d) Sellers shall permit Purchaser to conduct such due
diligence following the date of execution of this Agreement and
continuing until the Closing Date as Purchaser deems necessary in
either of the following events: (i) on or after October 24, 1996,
there has been a material change in the business of any of the Sellers
or an event has occurred that could
reasonably be expected to have a material effect on the Sellers
business or on the value of any of the assets to be acquired by
Purchaser; or (ii) Purchaser is required to obtain further information
from Sellers in order to obtain any government approval necessary for
the consummation of the transactions contemplated by this Agreement or
for Purchaser s use of the assets to be acquired from Sellers.
Sellers shall cooperate with Purchaser in the conduct of any due
diligence under this subsection (d) by providing to Purchaser, as soon
as practicable following a request for information, such information
as is reasonably available to it.
(e) Sellers shall maintain in full force and effect through
the Closing Date all of their presently existing insurance coverage,
or insurance comparable to such existing coverage.
(f) On or before the Closing Date, as required by law or
regulation, Sellers shall have notified the appropriate authorities of
their intent to transfer to the Purchaser any permits necessary for
the operation and use of the Purchased Assets and the business of the
Sellers. Sellers agree to cooperate with Purchaser in (i) identifying
any and all permits required by Purchaser to operate the business of
the Sellers from and after the Closing Date and (ii) either
transferring such existing permits of Sellers to Purchaser or
obtaining such new permits as Purchaser requires. Sellers shall use
their best efforts to obtain, prior to the Closing Date, all necessary
permits, approvals and consents required in order to effect the
transactions contemplated hereby and to permit Purchaser to use the
Purchased Assets as they have heretofore been used, including but not
limited to consents or approvals required by the
U.S. Maritime Administration, U.S. Environmental Protection Agency,
and any other governmental authority, lessors or any other parties to
contracts, leases, permits, licenses or agreements to be assigned
pursuant to this Agreement. Sellers agree to cooperate fully with
Purchaser to ensure that any consent required from the U.S. Maritime
Administration is satisfactory to Purchaser.
12. CONDITIONS TO OBLIGATIONS OF PURCHASER.
The obligations of Purchaser under this Agreement are, at the
option of Purchaser, subject to the conditions that:
(a) All the terms, covenants and conditions of this
Agreement to be complied with and performed by Sellers on or before
the Closing Date shall have been fully complied with and performed in
all material aspects.
(b) The representations and warranties made by Sellers
herein shall be correct in all respects, on and as of the Closing
Date, with the same force and effect as though such representations
and warranties had been made on and as of the Closing Date.
(c) On or before the Closing Date, Sellers shall have
obtained all approvals or consents necessary for the consummation of
the transactions contemplated hereby, including:
(i) the consent of Marad to the transfer of any
Vessels which are subject to a Capital
Construction Fund Agreement with Marad;
(ii) the consent of all appropriate agencies to the
assignment or transfer to the Purchaser of any
permits necessary for use of the Purchased Assets
or operation of the business of the Sellers. Also
on or before the Closing Date, any waiting period
prescribed by Title II of the Xxxx-Xxxxx-Xxxxxx
Antitrust Improvements Act of 1976, 15 U.S.C.A.
Section 18a(c)(8), as amended ("H-S-R") filed with
respect to the purchase by SEACOR Marine, Inc., or
its designee of vessels from Waveland Marine
Service, Inc. (the "Waveland Transaction"), shall
have been waived by the United States or shall
have expired without further investigation or
commencement of judicial proceedings, provided,
--------
however, that if any such investigation or
-------
judicial proceedings are initiated, the same shall
have been finally concluded and resolved to the
satisfaction of both parties, provided further,
-------- -------
however, that, if the United States conditions
------- ----
approval of the Waveland Transactions upon the
taking of any additional actions, including but
not limited to divestiture of any vessels or other
assets, by Purchaser or any affiliated entity,
then Purchaser, at its option, shall either:
(A) notify Sellers of its intent not to go
forward with the transactions contemplated by
this Agreement, in which case (1) Sellers
shall be released from their obligation under
the Letter of Intent to refrain from
soliciting, encouraging, initiating, or
negotiating any offers or proposals relating
to the Sellers assets from third parties and
(2) the FIFTY THOUSAND DOLLARS ($50,000)
deposit (the "Deposit") held by Sellers shall
be deemed forfeited by Purchaser to Sellers;
or
(B) notify Sellers of its intent to go forward
with the transactions contemplated by this
Agreement; and
(iii) such other consents as are referred to in
Section 7 hereof and in Schedules 7.1, 7.2,
7.3, and 9.9 hereof.
(d) Purchaser shall have received an opinion of Xxxxxx
Xxxxxx, L.L.P., counsel for Sellers, dated the Closing Date, in form
and substance satisfactory to Purchaser and its counsel.
(e) Each Seller shall have furnished Purchaser with a
certificate, dated the Closing Date, which shall state that (i) all
the terms, covenants and conditions herein to be performed or complied
with by it on or before the Closing Date have been fully performed or
complied with and (ii) the representations and warranties made by it
herein are correct, on and
as of the Closing Date, with the same force as though such
representations and warranties had been made on and as of the Closing
Date.
(f) No action, suit or proceeding against Sellers, the
Stockholders, or Purchaser relating to the consummation of any of the
transactions contemplated by this Agreement nor any governmental
action seeking to delay or enjoin any such transactions shall be
pending or threatened.
(g) Each of the Sellers shall have executed and delivered
the Investment and Registration Rights Agreement referred to in
Section 25 of this Agreement.
(h) The transactions contemplated by that purchase
agreement, dated of even date herewith, among SEACOR Marine, Inc., and
Waveland Marine Service, Inc., shall have been consummated as of the
Closing Date.
13. CONDITIONS TO OBLIGATIONS OF SELLERS.
The obligations of Sellers under this Agreement are, at their
option, subject to the conditions that:
(a) All the terms, covenants and conditions of this
Agreement to be complied with and performed by Purchaser on or before
the Closing Date shall have been fully complied with and performed in
all material respects.
(b) The representations and warranties made by Purchaser
herein shall be correct in all material respects on and as of the
Closing Date, with the same force and effect as though such
representations and warranties had been made on and as of the Closing
Date.
(c) On or before the Closing Date, Sellers shall have
obtained all necessary governmental approvals or consents necessary
for the consummation of the transactions contemplated hereby.
(d) Sellers shall have received opinions, dated as of the
Closing Date, from Fort & Schlefer, L.L.P., and Lugenbuehl, Burke,
Wheaton, Peck, Xxxxxx & Xxxxxxx, counsel for Purchaser, in form and
substance satisfactory to Sellers and their counsel.
(e) Purchaser shall have furnished Sellers with a
certificate, dated the Closing Date, which shall state (i) all the
terms, covenants, and conditions herein to be performed or complied
with by Purchaser on or before the Closing Date have been performed or
complied with and (ii) the representations and warranties made by
Purchaser herein are correct, on and as of the Closing Date, with the
same force and effect as though such representations and warranties
had been made on and as of the Closing Date.
(f) No action, suit or proceeding against Sellers, the
Stockholders, or Purchaser relating to the consummation of any of the
transactions contemplated by this Agreement nor any governmental
action seeking to delay or enjoin any such transactions shall be
pending or threatened.
(g) The Purchaser shall have executed and delivered the
Investment and Registration Rights Agreement referred to in Section 25
of this Agreement.
(h) The transactions contemplated by that purchase
agreement, dated of even date herewith, among SEACOR Marine, Inc., and
Waveland Marine Service, Inc., shall have been consummated as of the
Closing Date.
14. EMPLOYMENT AND CONSULTING AGREEMENTS.
(a) On the Closing Date, Purchaser shall enter into
employment agreements, substantially in the forms of Schedules 14.1,
14.2, and 14.3 hereto with D. Xxx Xxxxxxxxx, Xxxxxx X. Xxxxxxxxx, and
Xxxxxxx Xxxxxxxxx, respectively, and consulting agreements with X.X.
Xxxxxxxxx and Xxxxxx Xxxxxxxxx substantially in the forms of Schedules
14.4 and 14.5 hereto, respectively.
(b) Purchaser does not intend to offer employment contracts
to any other employee of Sellers. Purchaser does intend, however, to
offer employment on an at-will basis to all active employees of
Sellers on the Closing Date. Benefits for all former employees of
Sellers hired by Purchaser, including those under employment contracts
with Purchaser, shall be the same as those offered to all employees of
SEACOR Marine, Inc. Former employees of Sellers hired by Purchaser
shall be given credit under all SEACOR Marine, Inc., employee benefit
plans for all periods of service with Sellers, including, without
limitation, credit for eligibility and vesting purposes under any
employee pension benefit plan maintained by Purchaser and under
Purchaser's vacation policy. Former employees of Sellers who are
hired by Purchaser will be covered immediately after the Closing by
the health insurance plan of SEACOR, without any exclusion for pre-
existing conditions for which coverage was provided
by Sellers and for which SEACOR provides coverage to its employees.
Purchaser agrees to continue to pay former employees of Sellers hired
by Purchaser the same wages that they earned with Sellers at the time
of the Closing for a transition period of three months from the
Closing Date. Thereafter, such employees will be compensated under
the same wage rates as other employees of SEACOR performing similar
job functions, except that the administrative and shore support staff
shall remain at the salary levels they earned as of the Closing Date
after adjustment for health insurance withholding. Subject to
applicable laws, Purchaser shall have the right to dismiss any or all
of such employees at any time, with or without cause, and to change
the terms of their employment except as otherwise agreed herein.
15. SURVIVAL OF AGREEMENT; DEFENSE OF CLAIMS BY THIRD PARTIES.
(a) This Agreement, including the covenants,
representations and warranties contained herein or in any certificate
delivered pursuant hereto and the indemnities provided for herein,
shall survive the closing hereunder, provided, however, that no claim
-------- -------
for indemnification under Section 15 of this Agreement, except for
claims relating to title to the Purchased Assets or personal injury
claims on which the statute of limitations or repose does not begin to
run until discovery by the person asserting the claim, shall be made
more than six (6) years after the Closing Date.
(b) Sellers Indemnification. The Sellers, jointly and
-----------------------
severally, hereby agree to indemnify the Purchaser and its affiliates
against, and to hold the Purchaser and its affiliates harmless from:
(i) any and all claims, demands, damage, loss,
liability (whether fixed or contingent, known or
unknown) and expense (including reasonable
expenses of investigation and reasonable
attorneys fees and expenses in connection with
any action, suit or proceeding) (collectively,
"Damages") arising out of or resulting from the
ownership of the Purchased Assets or the operation
of the Sellers business prior to the Closing
Date;
(ii) the failure of any of the representations and
warranties made by any Seller in this Agreement to
have been true when made and as of the Closing
Date;
(iii) the failure of any Seller to comply with or
perform any covenant or agreement made or to
be performed by any Seller pursuant to this
Agreement;
(iv) any and all Environmental Costs and Liabilities
based upon, attributable to, arising out of or
resulting from, property owned, operated, or
leased by any of the Sellers or their facilities
or operations conducted prior to the Closing Date,
or, in the case of Vessels, prior to delivery
thereof pursuant to this Agreement;
(v) the failure of the Sellers to comply with, or to
provide notice with respect to, the bulk transfer
laws of any jurisdiction in
connection with the transactions contemplated by
this Agreement; and
(vi) any and all Retained Liabilities, including any
and all Taxes with respect to the ownership, use
or leasing of any of the Purchased Assets on or
prior to the Closing Date.
(c) Purchaser Indemnification. The Purchaser hereby agrees
-------------------------
to indemnify the Sellers against, and to hold the Sellers harmless
from (i) any and all Damages arising out of or resulting from the
ownership or operation of the Purchased Assets transferred to the
Purchaser pursuant to this Agreement after the Closing Date; (ii) the
failure of any representation or warranty of the Purchaser contained
in this Agreement to have been true when made and as of the Closing
Date; (iii) the failure of the Purchaser to comply with or perform any
covenant or agreement made or to be performed by the Purchaser
pursuant to this Agreement; and (iv) any and all Assumed Liabilities;
except with respect to Damages incurred after the Closing Date that
were caused by or arose from breaches of any of the Seller s
representations, warranties, covenants or agreements contained in this
Agreement.
(d) Procedures for Claims; Exclusivity.
----------------------------------
(i) The remedy of indemnification provided pursuant to
this Section 15 and the provisions of the Letter of Intent between the
parties relating to the xxxxxxx money deposit shall be the sole and
exclusive remedy of the Purchaser and the Sellers for Damages arising
out of any breach of any representation or warranty in this Agreement.
(ii) A party seeking indemnification pursuant to this
Section 15 (an "Indemnified Party") from or against the assertion of
any claim, or the commencement of any action, suit or proceeding in
respect of which indemnity may be sought under this Section 15 (an
"Assertion") shall (i) give prompt notice to the party from whom
indemnification is sought (the "Indemnifying Party"), and (ii) provide
the Indemnifying Party such information with respect thereto as the
Indemnifying Party may reasonably request, but no failure to give such
notice or copies or provide such information shall relieve the
Indemnifying Party of any liability hereunder (except to the extent
the Indemnifying Party has suffered actual prejudice by such failure).
No Indemnified Party shall settle any Assertion without the prior
written consent of the Indemnifying Party, which consent shall not be
unreasonably withheld or delayed.
(iii) The Indemnifying Party shall have the right,
exercisable by the furnishing of written notice of an Assertion to the
Indemnified Party within 20 days of receipt of notice from the
Indemnified Party pursuant to Section 15(c)(ii) to assume the defense
of such Assertion; provided, however, that
-------- -------
(A) the Indemnifying Party expressly agrees in
its notice to the Indemnified Party that, as
between the Indemnifying Party and the
Indemnified Party, solely the Indemnifying
Party shall be obligated to satisfy and
discharge such Assertion; and
(B) no other person has the right to assume the
defense of such Assertion pursuant to the
terms of any insurance coverage.
If the Indemnifying Party assumes such defense, the Indemnifying Party
(1) may select counsel, which counsel shall be reasonably acceptable
to the Indemnified Party, and (2) shall be obligated to pay the costs
(including reasonable attorneys fees and expenses) incurred by the
Indemnified Party in defending such Assertion between the date of the
commencement of such Assertion and the date of the Indemnifying
Party s assumption of such defense.
(iv) If the Indemnifying Party shall not have assumed
the defense of any Assertion as provided in Section 15(c)(iii) or if,
at any time after the Indemnifying Party shall have assumed the
defense of any Assertion pursuant to Section 15(c)(iii), any of the
conditions set forth in paragraphs (A) or (B) thereof is no longer
satisfied, then, upon ten days written notice to the Indemnifying
Party, the Indemnified Party may assume the defense of such Assertion
with counsel selected by it and shall have the right to consent to the
entry of judgment with respect to, or otherwise settle, such Assertion
with the prior written consent of the Indemnifying Party (which
consent shall not be unreasonably withheld or delayed), and the costs
of such defense and/or settlement (including reasonable attorneys
fees and expenses) shall be borne by the Indemnifying Party.
(v) The Indemnifying Party, if it shall have assumed
the defense of any Assertion, shall have the right to consent to the
entry of judgment with respect to, or
otherwise settle, such Assertion; provided, however, that such
-------- -------
judgment or settlement includes an unconditional release of the
Indemnified Party and its affiliates from all liability or
restrictions in respect of claims that are the subject matter of such
Assertion.
(vi) The Indemnifying Party and the Indemnified Party
shall cooperate, and cause their respective affiliates to cooperate,
in the defense or prosecution of any Assertion and shall furnish or
cause to be furnished such records, information and testimony, and
attend such conferences, discovery proceedings, hearings, trials or
appeals, as may be requested in connection therewith. The
Indemnifying Party or the Indemnified Party, as the case may be, shall
have the right to participate, at its own expense, in the defense or
settlement of any Assertion which the other is defending.
16. EXPENSES AND TAXES.
Except as otherwise provided herein, Sellers and Purchaser shall
each pay their own expenses in connection with this Agreement and the
transactions contemplated hereby. Sellers shall provide to Purchaser
a certificate on the Closing Date to the effect that no sales and use
taxes that are required to be collected by Sellers from any third
party are due and owing arising out of the operation of Sellers
business prior to the Closing Date which have not been paid on or
prior to the Closing Date.
17. COOPERATION AND PUBLICITY.
(a) Neither any Seller nor Purchaser shall voluntarily
undertake any course of action inconsistent with satisfaction of the
requirements applicable to it set forth in this
Agreement, and each shall promptly do all such acts and take all such
measures as may be appropriate to enable it to perform as early as
practicable the obligations herein provided to be performed by it.
(b) No party will issue any press release or make any other
public statement relating to the transactions contemplated hereby
unless required by law, regulation, court order or the rules of any
applicable stock exchange or regulatory authority, and any such
release or statement shall be subject to review by both parties.
18. WAIVER OF COMPLIANCE WITH BULK TRANSFER LAWS.
The Purchaser hereby waives compliance by the Sellers with the
provisions of the bulk transfer laws of any jurisdiction in connection
with the transactions contemplated by this Agreement. Notwithstanding
anything to the contrary in this Agreement, in accordance with the
terms and provisions of Section 15, the Sellers, jointly and
severally, agree to indemnify and hold the Purchaser harmless from and
against all Damages resulting from or arising out of the failure to
comply with, or to provide notice with respect to, the bulk transfer
laws of any jurisdiction in connection with the transactions
contemplated by this Agreement.
19. DEPOSIT.
(a) In the event none of the Sellers is in default
hereunder and this Agreement is terminated or the transactions
contemplated hereby are not consummated, in either event, due to
Purchaser s material breach of this Agreement or material non-
performance by Purchaser hereunder the FIFTY THOUSAND ($50,000.00)
DOLLARS deposit (the "Deposit") held by Sellers hereunder shall be
deemed forfeited by Purchaser to Sellers. Except as provided in
Section 12(c)(ii) hereof, in the event Purchaser is not in default
hereunder and this Agreement is terminated or the transactions
contemplated hereby are not consummated, the Deposit shall be
refunded, without interest, to Purchaser within five business days
after the termination.
(b) In the event the closing of the transaction
contemplated hereby occurs, the Deposit held by Sellers in accordance
with this Agreement shall be applied to the Purchase Price.
20. MISCELLANEOUS.
(a) Each party represents and warrants that there are no
claims for brokerage commissions or finders fees in connection with
the transactions contemplated by this Agreement resulting from any
action taken by it. Each of the parties will exonerate, indemnify and
hold harmless the other in respect of any and all losses sustained by
the other as a result of liability to any broker or finder on the
basis of any arrangement or agreement made by or on behalf of such
party.
(b) This Agreement cannot be orally changed or terminated.
The parties may, by written supplemental agreement, (i) extend the
time for the performance of any of the obligations or other acts of
the parties hereto, (ii) waive any inaccuracy in any representation
contained herein or in any Schedule hereto, (iii) waive compliance
with any of the covenants or conditions contained in this Agreement,
and (iv) alter or amend this Agreement in any respect.
(c) This Agreement shall be binding upon and inure to the
benefit of the parties hereto and their respective successors and
assigns, provided that neither any of the Sellers nor Purchaser shall
assign any of its rights or privileges hereunder without the prior
written consent of the other; provided, however, that the Sellers may
-------- ------- ----
assign to their shareholders the right to receive the shares issuable
hereunder upon receipt by SEACOR Holdings of an executed undertaking
by such shareholders in the form of Exhibit B to the Investment and
Registration Rights Agreement.
(d) Except as specifically set forth or referred to herein,
nothing herein expressed or implied is intended or shall be construed
to confer upon or give to any Person, firm or corporation, other than
the parties hereto and their respective permitted successors and
assigns or personal representatives, any rights or remedies under or
by reason of this Agreement.
(e) All notices, consents, requests, instructions,
approvals and other communications provided for herein and all legal
process in regard hereto shall be validly given, made or served if in
writing and delivered personally (including delivery by messenger) or
sent by telecopier facsimile (provided that answer-back confirmation
is received by the sender), or registered or certified mail (postage
prepaid, return receipt requested), addressed as
follows or to such other address as a party hereto shall hereafter
specify in writing to the other:
In the case of the Purchaser:
SEACOR Holdings, Inc.
1370 Avenue of the Xxxxxxxx
00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Fax: (000) 000-0000
Attn: Xx. Xxxxxxx Xxxxx
Executive Vice President
With a copy to:
Xxxxx X. Gran, Esquire
Fort & Schlefer, L.L.P.
0000 Xxx Xxxx Xxxxxx, X.X.
Xxxxx 0000
Xxxxxxxxxx, X.X. 00000
Fax: (000) 000-0000
In the case of Sellers:
Galaxie Marine Service, Inc.
000 Xxxxxx Xxxxxx
X.X. Xxx 000
Xxxxxxxxx, Xxxxxxxxx 00000
Fax: (000) 000-0000
With a copy to:
Xxxxxx Xxxxxx, L.L.P
000 Xxxxxxx Xxxxxx
Xxx Xxxxxxx, Xxxxxxxxx 00000
Attn: Xxxxxxxx Xxxxxx
Fax: (000) 000-0000
(f) This Agreement and the Schedules annexed hereto and
made a part hereof contain the entire agreement between the parties
hereto with respect to the purchase and sale of assets and other
transactions contemplated herein and shall be governed by and
construed in accordance with the laws of the State of Louisiana.
Notwithstanding the foregoing or anything else to the contrary herein,
those provisions of the Letter of Intent between the parties, dated as
of October 24, 1996, and the Term Sheet attached thereto, which by
their terms shall survive until January 31, 1997, shall continue to be
valid and enforceable until those provisions terminate in accordance
with the Letter of Intent, except to the extent that those provisions
are inconsistent with the terms of this Agreement, in which case this
Agreement shall govern.
(g) If any provision of this Agreement shall be rendered
invalid or unenforceable by any body of competent jurisdiction, such
judgment shall not render the remainder of this Agreement invalid or
unenforceable.
(h) Subsequent to the closing hereunder and prior to proper
recordation or filing by or on behalf of Purchaser of all necessary
deeds or other instruments of transfer
Sellers will cooperate in all respects in assertion by Purchaser of
ownership to such properties and will not do anything inconsistent
with such ownership.
21. POST-CLOSING ACCOUNTING
The parties acknowledge that Sellers are assigning to Purchaser
no accounts receivable, and that, except as expressly provided in the
first sentence of Section 3(a) hereof Purchaser is assuming no
liabilities. Purchaser and Sellers agree, consistent with their
normal business practices, to cooperate in collecting and accounting
for Sellers accounts receivable (including through use of Purchaser's
computer equipment and office personnel as necessary) as of the
Closing Date and to assist Sellers in their efforts to discharge
Sellers liabilities. The parties further agree to develop a
procedure on or prior to the Closing Date to implement the foregoing.
Such procedure shall include provision for (a) matching of payments
received to invoices outstanding and identification of disputed
invoices; and (b) assisting Sellers in accounting for outstanding
payables. It is not intended that Purchaser will disburse or collect
funds for the Sellers, but Purchaser will assist the Sellers in post-
closing accounting for a period of six (6) months from the Closing
Date.
22. STOCKHOLDERS AGREEMENTS.
The Stockholders hereby acknowledge and consent to the terms and
provisions of this Agreement and agree to be bound by the terms and
provisions hereof. The Stockholders also hereby represent that, among
them, they are the owners of more than eighty percent (80%) of the
issued and outstanding shares of stock of each of the Sellers, and
they hereby agree jointly
and severally that they will not sell, transfer or otherwise encumber
such shares prior to closing.
23. LEASE OF OFFICE BUILDING
Purchaser has agreed to enter into a lease substantially in the
form of Schedule 23.1 hereto under which Purchaser shall lease an
office building at 000 Xxxxxx Xxxxxx, Xxxxxxxxx, Xxxxxxxxx 00000,
together with certain real estate contiguous to that building.
24. EXPENSES OF CLOSING
Each party to this Agreement will pay its respective legal,
accounting, and other costs incurred in connection with this
transaction.
25. REGISTRATION RIGHTS AGREEMENT
(a) The issuance of shares of common stock of SEACOR
Holdings, Inc. (the "SEACOR Common Stock") to the Sellers pursuant to
this Agreement will not be registered under the Securities Act, or any
state securities laws, in reliance upon certain exemptions from
registration contained therein and, therefore, will be subject to
restrictions on transfer. Pursuant to the terms and conditions of the
Investment and Registration Rights Agreement, in substantially the
form attached hereto as Schedule 25.1 (the "Investment and
Registration Rights Agreement"), Sellers shall have certain rights to
require the registration of the resale by the Sellers of their SEACOR
Common Stock.
(b) Each certificate representing the shares of SEACOR
Common Stock to be issued to the Sellers pursuant to this Agreement
shall be stamped with a legend in substantially the following form:
The Shares represented by this certificate have not been
registered under the Securities Act of 1933, as amended, or
any state securities law, and may not be transferred, sold,
or otherwise disposed of in the absence of such registration
or an exemption therefrom. Such Shares may be transferred
only in compliance with the conditions specified in the
Investment and Registration Rights Agreement, dated as of
___________________, 1997, between the Issuer and the other
entities and individuals party thereto, a complete and
correct copy of which is available for inspection at the
principal office of the Issuer and will be furnished to the
Holder hereof upon written request and without charge.
26. DEFINITIONS.
Attached hereto as Schedule X is a schedule of definitions of
defined terms used in this Agreement and other terms used herein
without definition.
IN WITNESS WHEREOF, the parties hereby have caused this Agreement
to be duly executed and their respective corporate seals to be affixed
hereto, all as of the day and year first above written.
ACADIAN OFFSHORE SERVICES, INC.
By: /s/ Xxxxxxx XxXxxxx
Vice President
SEACOR HOLDINGS, INC.
By: /s/ Xxxxxx Xxxx
Vice President
GALAXIE MARINE SERVICE, INC.
By: /s/ D. Xxx Xxxxxxxxx
President
MOONMAID MARINE, INC.
By: /s/ X. X. Xxxxxxxxx
President
TRIANGLE MARINE, INC.
By: /s/ Xxxxxx Xxxxxxxxx
President
THE STOCKHOLDERS:
/s/ X. X. Xxxxxxxxx
X.X. Xxxxxxxxx
/s/ Xxxxxx Xxxxxxxxx
Xxxxxx Xxxxxxxxx
/s/ D. Xxx Xxxxxxxxx
D. Xxx Xxxxxxxxx
/s/ Xxxxxx X. Xxxxxxxxx
Xxxxxx X. Xxxxxxxxx
NYFS11...:\93\73293\0004\1711\EXH1087X.550
