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EXHIBIT 10.4
FIRST AMENDMENT TO
STOCK PURCHASE AND MERGER AGREEMENT
THIS FIRST AMENDMENT TO STOCK PURCHASE AND MERGER AGREEMENT, (this
"Amendment") is made and entered into as of the 31st day of August, 1998 by and
among TransCoastal Marine Services, Inc., a Delaware corporation ("Acquiror"),
and TransCoastal Acquisition, Inc., a Louisiana corporation, ("Acquisition
Corp."); Xxxxxxx GMP International, Inc., a Louisiana corporation ("Xxxxxxx
GMP"); Xxxxxxx Marine, Inc., a Louisiana corporation ("Xxxxxxx Marine"); Dickson
Nigeria, Ltd., a Nigerian corporation ("Xxxxxxx Nigeria"); Servicios y
Construcciones Petroleras Ventura, C.A., a Venezuelan corporation ("Servicios y
Construcciones"); Ventura Resources, Inc., a Louisiana corporation ("Ventura"),
(Dickson GMP, Xxxxxxx Marine, Dickson Nigeria, Servicios y Construcciones and
Ventura being referred to individually or collectively as the "Xxxxxxx Group");
and Xxxx X. Xxxxxxxxx, Xx. ("Xxxxxxxxx" or "Shareholder"); The spouse of the
Shareholder is joining in and consenting to the execution of this Amendment.
Xxxx X. Xxxxxxx, Xx. ("Xxxxxxx"), Xxxxx X. Xxxxxxx ("Xxxxxxx") and Xxxxxx X.
Xxxxxx ("Xxxxxx"), each a potential Transferee, if assigned stock in the Xxxxxxx
Group pursuant to Section 11.05 of the Stock Purchase and Merger Agreement, also
join in this Amendment and, together with Xxxxxxxxx are referred to collectively
as "Shareholder."
WHEREAS, the parties hereto have entered into that certain Stock
Purchase and Merger Agreement, dated as of August 1, 1998 (as amended hereby,
the "Agreement") (capitalized terms used but not defined herein shall have the
respective meanings ascribed to such terms in the Agreement);
WHEREAS, the parties desire to amend certain provisions of the
Agreement;
NOW THEREFORE, in consideration of the foregoing and the respective
representations, warranties, covenants and agreements contained herein, the
parties hereto agree as follows:
1. Section 2.03(b) of the Agreement is amended to read as follows:
"(b) (i) Delivery by the Acquiror of $8,800,000, less Long-Term Debt
plus accrued interest as of the Closing Date (as hereinafter defined)
of the Xxxxxxx Group as set forth on Annex III-Disclosure Schedule
("Schedule") 2.03(b)(i) as adjusted to the Closing Date, such remaining
funds to be paid by wire transfer or other immediately available funds
approved by Shareholder in accordance with the instructions set forth
in Schedule 2.03(b)(i) and (ii) issuance by the Acquiror of 1,300,000
shares of Acquiror Common Stock to Shareholder in accordance with the
sharing ratio set forth in Schedule 2.07, as updated to the date of
Closing (collectively, the "Initial Consideration"). The number of
Acquiror Common Stock issued as part of the Initial Consideration
pursuant to
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this Section 2.03(b) hereof shall be adjusted to account for any
changes in the outstanding Acquiror Common Stock resulting from a
subdivision or consolidation of shares, share split, reverse share
split, share distribution or combination of shares or the payment of a
share dividend; and"
2. The first paragraph of Section 2.07(a) of the Agreement is amended
to read as follows:
"(a) an earned payout amount (the "Earn-Out Payment") based upon the
Adjusted EBTDA of the Xxxxxxx Group for the twelve month period
commencing on the first day of September, 1998 (the "Earn-Out Period"),
to be calculated as follows:"
3. Section 2.07(a)(iii) of the Agreement is amended to read as follows:
"(iii) if the Xxxxxxx Group's Adjusted EBTDA for the Earn-Out
Period is gr eater than $7,000,000, the Gross Earn-Out Payment shall
equal 400,000 shares of Acquiror's Common Stock and $7,268,750 in
cash. The number of shares of Acquiror Common Stock issued as part
of the Contingent Consideration pursuant to this Section 2.07 hereof
shall be adjusted to account for any change in the outstanding
Acquiror Common Stock resulting from a subdivision or consolidation
of shares, share split, reverse share split, share distribution or
combination of shares or the payment of a share dividend."
4. Section 2.07(b) of the Agreement is amended to read as follows:
"(b) In the event Xxxxxxxxx directs Acquiror to issue Preferred
Stock of Acquiror in lieu of cash to be paid pursuant to (a), Xxxxxxxxx
shall notify Acquiror one (1) Business Day preceding the Earn-Out
Payment and Acquiror shall issue to Xxxxxxxxx Preferred Stock of the
Acquiror with substantially the same terms as set forth in Annex IV. It
is understood and agreed that Xxxxxxxxx may specify the amounts of the
cash portion of the Contingent Consideration to be paid in cash or in
Preferred Stock or a combination of cash and Preferred Stock, in any
portions as Shareholder in his sole and absolute discretion may
determine."
5. Section 2.08(b) of the Agreement is amended to read as follows:
"(b) If the Shareholder or Shareholder Representative fail to object
to the Acquiror's calculation of Adjusted EBTDA and/or the Net Earn-Out
Payment in the manner set forth in Section 2.08(a), Acquiror shall make
a payment to the Shareholder or Shareholder Representative in cash and
shares pro rata in accordance with Schedule 2.07, as updated to the
date of Closing, of an amount equal to the Net Earn-Out
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Payment (as set forth in Annex II hereto) as calculated in accordance
with the Earn-Out Report (unless Adjusted EBTDA is not greater than
$4,000,000 in which case no payment shall be made). If the Acquiror and
the Shareholder or Shareholder Representative agree upon a different
amount of Adjusted EBTDA or Net Earn-Out Payment or if, absent such
agreement, the matter is submitted to arbitration and decided thereby,
then, the Acquiror shall make the Net Earn-Out Payment, if any,
determined in accordance with Schedule 2.07, as updated to the date of
Closing, based on such agreed or arbitration determined amount of
Adjusted EBTDA or Net Earn-Out Payment. All payments and issuances of
stock under this Section 2.08(b) shall be payable and made on and as of
the fifth Business Day following the 30-day period in which the
Shareholder or Shareholder Representative had the opportunity but
failed to make any objection, after agreement by the parties or upon a
final determination by the arbitrators, as applicable; provided,
however, that it is understood that it may not be practicable to
physically deliver the Stock Certificate on such date, but Acquiror
will deliver satisfactory Letters of Authorization to its Transfer
Agent so directing the issuance of such stock as of such date."
6. Section 4.11 of the Agreement is amended to read as follows:
"4.11 PERMITS. Schedule 4.11 lists for the Xxxxxxx Group all
permits, licenses, certificates, authorizations and approvals granted
by any Governmental Authority (each, a "Permit") and used or held by
one or more of the Xxxxxxx Group, or any of their Affiliates in
connection with the ownership and operation of the Business (the
"Scheduled Permits"). The Scheduled Permits constitute all Permits
necessary for the continued ownership, use and operation of the
Business consistent in all material respects with the past practices of
the Xxxxxxx Group, except the Air Quality Permit and a Storm Water
Discharge Permit for the Xxxxxxx Group operations at Belle Xxxxxx as
set forth on Schedule 4.24. Except as set forth in Schedule 4.11, the
Scheduled Permits are valid and in full force and effect and no
Scheduled Permit is in default, and no condition exists that with
notice or lapse of time or both would constitute a default, under the
Scheduled Permits. All fees and other payments due and owing in
connection with the Scheduled Permits have been paid in full and in a
timely manner so as to prevent any lapse or revocation thereof."
7. Section 9.01 of the Agreement is amended to read as follows:
"9.01 BY SHAREHOLDER. Subject to the terms and conditions of this
Article IX, the Shareholder hereby agrees to indemnify, defend and hold
harmless Acquiror and its directors, officers, employees, consultants,
Affiliates and controlling persons (hereinafter, including the Xxxxxxx
Group and its Subsidiaries after the Closing, collectively, the
"Acquiror Indemnified Parties") from and against all Claims (as defined
below) asserted against, imposed upon or incurred by Acquiror or any
Acquiror
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Indemnified Party, directly or indirectly, by reason of, arising out
of, or resulting from (a) the inaccuracy or breach of any
representation or warranty of the Xxxxxxx Group or such Shareholder
contained in or made pursuant to this Agreement, including, but not
limited to, any environmental matter in Section 4.24 and any Claims
associated with the Air Quality Permit or the Storm Water Discharge
Permit; and (b) the breach of any covenant or agreement of the Xxxxxxx
Group or such Shareholder contained in or made pursuant to this
Agreement; provided, however, Acquiror and Acquiror Indemnified Parties
covenant and agree that in no event shall the liability, in the
aggregate, of the Shareholder, in his capacity as indemnifying party,
for any and all indemnified Claims under this Article IX exceed the
Purchase Price, subject, however, to the provisions of Section 9.07(b).
As used in this Section 9.01, the term "Claim" shall include (i) all
debts, liabilities and obligations; (ii) all losses, damages,
reasonable costs and expenses (including, without limitation, interest
(including prejudgment interest in any litigated matter), but excluding
any allocation of overhead costs and expenses of Acquiror or any of its
Subsidiaries), penalties, court costs and reasonable legal, accounting,
consulting and engineering fees and expenses; (iii) all reasonable and
necessary costs that may be attributable to an Environmental Condition
or that may be necessary to comply with Environmental Laws, including,
but not limited to, the removal of Hazardous Materials and the
remediation of any property according to standards established by
Environmental Law or standards established on a case-by-case basis by
any Governmental Authority according to Environmental Law; and (iv) all
demands, Claims, actions, costs of investigation, causes of action,
proceedings, arbitrations, judgments, settlements and assessments,
whether or not ultimately determined to be valid. Acquiror has no
obligation to seek recovery of any Claim, or any portion thereof, from
any insurance policies covering the Xxxxxxx Group and/or Shareholder in
effect prior to the Closing, but will reasonably cooperate with
Shareholder in Shareholder's seeking such recovery. In the event that
the Xxxxxxx Group and/or the Shareholder recover from such an insurance
policy for a Claim, or a portion thereof made by Acquiror, and such
insurance recovery was paid to Acquiror by the insurance company, then
Acquiror shall reimburse the Xxxxxxx Group and/or the Shareholder for
that portion of the Claim that was paid by both the Xxxxxxx Group
and/or the Shareholder to Acquiror on the one hand and the insurance
company on the other."
8. Section 10.03(a) of the Agreement is deleted and amended to read
"Intentionally Blank".
9. Except as expressly set forth herein, the terms and provisions of
the Agreement are hereby ratified and confirmed.
10. This Amendment may be executed in one or more counterparts, each of
which shall be deemed to be an original, but all of which shall constitute one
and the same Agreement.
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IN WITNESS WHEREOF, Acquiror, Acquisition Corp., the Xxxxxxx Group, the
Shareholder and the Transferees have each executed or caused this Agreement to
be executed on its behalf by its officer thereunto duly authorized, as
applicable, all as of the date first above written.
ACQUIROR:
TRANSCOASTAL MARINE SERVICES, INC.
By:
XXXX XXXXX III
President
TRANSCOASTAL ACQUISITION, INC.
By:
XXXX XXXXXXXXXX
President
DICKSON GROUP:
XXXXXXX GMP INTERNATIONAL, INC.
By:
XXXX X. XXXXXXXXX, XX.
President
XXXXXXX MARINE, INC.
By:
XXXX X. XXXXXXXXX, XX.
President
XXXXXXX NIGERIA, LTD.
By:
XXXX X. XXXXXXXXX, XX.
President
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SERVICIOS Y CONSTRUCCIONES PETROLERAS
VENTURA, C.A.
By:
XXXX X. XXXXXXXXX, XX.
President
VENTURA RESOURCES, INC.
By:
XXXX X. XXXXXXXXX, XX.
President
SHAREHOLDER:
Xxxx X. Xxxxxxxxx, Xx.
Xxxxxxx X. Xxxxxxxxx
TRANSFEREE:
Xxxx X. Xxxxxxx, Xx.
Xxxxxxx X. Xxxxxxx
Xxxxx X. Xxxxxxx
Xxxxxxx X. Xxxxxxx
Xxxxxx X. Xxxxxx
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