EXHIBIT 2(a)
AGREEMENT AND PLAN OF MERGER
Among
TIDEWATER INC.,
TIDEWATER EXPANSION, INC.
and
XXXXXXXX OFFSHORE SERVICES, INC.
Dated as of December 21, 1995
TABLE OF CONTENTS
Page
ARTICLE 1. DEFINITIONS......................................... 1
Section 1.1 Definitions.............................. 1
ARTICLE 2. THE CLOSING; THE MERGER; EFFECTS OF THE MERGER...... 5
Section 2.1 Closing. ............................... 5
Section 2.2 The Merger............................... 6
Section 2.3 Effects of the Merger; Certificate and
By-laws; Directors and Officers.......... 6
ARTICLE 3. MERGER CONSIDERATION; CONVERSION OF SHARES.......... 6
Section 3.1 Conversion of Shares..................... 6
Section 3.2 Exchange of Stock Certificates; Record
Date..................................... 8
Section 3.3 No Further Rights in Xxxxxxxx Common
Stock.................................... 8
ARTICLE 4. REPRESENTATIONS AND WARRANTIES OF XXXXXXXX.......... 8
Section 4.1 Organization............................. 8
Section 4.2 Affiliated Entities...................... 9
Section 4.3 Capitalization........................... 9
Section 4.4 Authority; Enforceable Agreements........ 9
Section 4.5 No Conflicts or Consents................. 10
Section 4.6 Corporate Documents, Stockholder
Agreements and Board of Directors........ 11
Section 4.7 SEC Documents; Financial Statements;
Liabilities.............................. 11
Section 4.8 Accounts Receivable...................... 12
Section 4.9 Absence of Certain Changes or Events..... 12
Section 4.10 Contracts................................ 14
Section 4.11 Properties and Leases other than Vessels. 15
Section 4.12 Condition of Xxxxxxxx'x Assets Other
than Vessels............................. 16
Section 4.13 Vessels.................................. 16
Section 4.14 Voting Requirements...................... 17
Section 4.15 State Takeover Statutes; Xxxxxxxx
Stockholder Rights Plan.................. 17
Section 4.16 Accounting Matters....................... 18
Section 4.17 Suppliers and Customers.................. 18
Section 4.18 Employee Matters......................... 18
Section 4.19 Employee Benefit Plans................... 19
Section 4.20 Tax Matters.............................. 21
Section 4.21 Litigation............................... 23
Section 4.22 Insurance................................ 23
Section 4.23 Environmental Compliance................. 24
Section 4.24 Compliance With Law; Permits............. 25
Section 4.25 Interests in Clients, Suppliers, Etc..... 25
Section 4.26 Transactions With Related Parties........ 26
Section 4.27 Statements are True and Correct.......... 26
Section 4.28 Citizenship.............................. 26
Section 4.29 Broker's and Finder's Fee................ 26
Section 4.30 Disclosure............................... 27
ARTICLE 5. REPRESENTATIONS AND WARRANTIES OF TIDEWATER AND SUB. 27
Section 5.1 Organization............................. 27
Section 5.2 Affiliated Entities...................... 27
Section 5.3 Capitalization........................... 27
Section 5.4 Authority; Enforceable Agreements........ 28
Section 5.5 No Conflicts or Consents................. 28
Section 5.6 Corporate Documents, Stockholder
Agreements and Board of Directors........ 29
Section 5.7 SEC Documents; Financial Statements;
Liabilities.............................. 29
Section 5.8 Absence of Certain Changes or Events..... 30
Section 5.9 Contracts................................ 31
Section 5.10 Vessels.................................. 31
Section 5.11 Environmental Compliance................. 32
Section 5.12 State Takeover Statutes.................. 32
Section 5.13 Accounting Matters....................... 32
Section 5.14 Litigation............................... 33
Section 5.15 Legality of Tidewater Common Stock....... 33
Section 5.16 Statements are True and Correct.......... 33
Section 5.17 No Stockholder Vote...................... 33
Section 5.18 Citizenship.............................. 33
Section 5.19 Broker's and Finder's Fee................ 33
Section 5.20 Disclosure............................... 34
ARTICLE 6. PRE-CLOSING COVENANTS................................ 34
Section 6.1 Xxxx-Xxxxx-Xxxxxx; Cooperation and
Best Efforts............................. 34
Section 6.2 Registration Statement and Proxy
Statement; Xxxxxxxx Special Meeting...... 34
Section 6.3 Conduct of Business By Both Parties
Prior to the Closing Date................ 35
Section 6.4 Conduct of Business By Xxxxxxxx Prior
to the Closing Date...................... 36
Section 6.5 No Solicitations......................... 38
Section 6.6 Press Releases........................... 39
Section 6.7 Access to Information and Confidentiality 40
Section 6.8 Consultation and Reporting............... 40
Section 6.9 Update Schedules......................... 40
Section 6.10 Xxxxxxxx Stock Options................... 40
Section 6.11 Exercise of North Sea Options............ 41
Section 6.12 Xxxxxxxx 1995 Form 10-K.................. 41
Section 6.13 Severance Policy......................... 41
Section 6.14 Sub Stockholder Approval................. 41
Section 6.15 Employee Indemnification................. 41
Section 6.16 Change in Control Agreements............. 41
ARTICLE 7. CLOSING CONDITIONS................................... 42
Section 7.1 Conditions Applicable to All Parties..... 42
Section 7.2 Conditions to Tidewater's Obligations.... 42
Section 7.3 Conditions to Xxxxxxxx'x Obligations..... 44
Section 7.4 Waiver of Conditions..................... 45
ARTICLE 8. POST-CLOSING COVENANTS............................... 45
Section 8.1 Use of Xxxxxxxx Name..................... 45
Section 8.2 Indemnification of Directors and
Officers of Xxxxxxxx..................... 46
Section 8.3 Publication of Post-Merger Results....... 47
Section 8.4 Employee Benefits........................ 47
Section 8.5 Registration Rights...................... 47
ARTICLE 9. TERMINATION.......................................... 47
Section 9.1 Termination.............................. 47
Section 9.2 Effect of Termination.................... 48
ARTICLE 10. MISCELLANEOUS....................................... 49
Section 10.1 Notices.................................. 49
Section 10.2 Governing Law............................ 49
Section 10.3 Counterparts............................. 50
Section 10.4 Interpretation; Schedules................ 50
Section 10.5 Entire Agreement; Severability........... 50
Section 10.6 Amendment and Modification............... 50
Section 10.7 Extension; Waiver........................ 50
Section 10.8 Binding Effect; Benefits................. 51
Section 10.9 Assignability............................ 51
Section 10.10 Expenses................................. 51
Section 10.11 Gender and Certain Definitions........... 51
Section 10.12 Non-Survival of Representations and
Warranties; Remedies..................... 51
LIST OF SCHEDULES
Schedule 4.2 Schedule 4.20(a)(vii)
Schedule 4.3 Schedule 4.20(a)(x)
Schedule 4.5(a) Schedule 4.20(a)(xiii)
Schedule 4.5(b) Schedule 4.21
Schedule 4.6 Schedule 4.22
Schedule 4.7(b) Schedule 4.23(b)
Schedule 4.7(f) Schedule 4.23(d)
Schedule 4.8 Schedule 4.25
Schedule 4.9 Schedule 4.26(a)
Schedule 4.10(a) Schedule 4.26(b)
Schedule 4.10(b) Schedule 4.29
Schedule 4.11(a) Schedule 5.7(e)
Schedule 4.11(d) Schedule 5.10
Schedule 4.13(a) Schedule 5.11(b)
Schedule 4.13(c) Schedule 5.11(c)
Schedule 4.18(a) Schedule 5.14
Schedule 4.19(a) Schedule 6.4(d)
Schedule 4.19(b) Schedule 6.4(e)
Schedule 4.19(j) Schedule 6.4(f)
Schedule 4.19(k) Schedule 6.13
Schedule 4.20(a)(ii) Schedule 8.4
Schedule 4.20(a)(v)
LIST OF EXHIBITS
Exhibit A Certificate of Merger
Exhibit B Letter of Transmittal
Exhibit C-1 Form of opinion of Xxxx, Xxxxx & Cate
Exhibit C-2 Form of opinion of Morris, Nichols, Arsht & Xxxxxxx,
Xxxxxxxx Delaware counsel
Exhibit D-1 Form of opinion of Cliffe X. Xxxxxxx
Exhibit D-2 Form of opinion of Jones, Walker, Waechter, Poitevent,
Carrere & Xxxxxxx, L.L.P.
Exhibit D-3 Form of opinion of Xxxxx & Geddes, Tidewater
Delaware counsel
Exhibit E Consulting Agreement with Xxxxx Xxxxxxxx
1
AGREEMENT AND PLAN OF MERGER
This AGREEMENT AND PLAN OF MERGER dated as of
December 21, 1995 is by and among Tidewater Inc., a
Delaware corporation ("Tidewater"), Tidewater Expansion,
Inc., a wholly owned subsidiary of Tidewater and a
Delaware corporation ("Sub"), and Xxxxxxxx Offshore
Services, Inc., a Delaware corporation ("Xxxxxxxx").
W I T N E S S E T H :
WHEREAS, the respective Boards of Directors of
Tidewater, Sub and Xxxxxxxx deem it desirable to merge Sub
into Xxxxxxxx (the "Merger") with the result that Xxxxxxxx
shall become a wholly owned subsidiary of Tidewater
pursuant to the terms and conditions hereof;
WHEREAS, it is the parties' mutual intent that the
Merger constitute a reorganization under Section 368 of
the Internal Revenue Code of 1986, as amended (the "Code")
and that this Agreement constitute a plan of
reorganization thereunder;
WHEREAS, for accounting purposes, it is intended that
the Merger shall be accounted for as a pooling-of-
interests;
NOW, THEREFORE, in consideration of the
representations, warranties and covenants contained
herein, the parties agree as follows:
ARTICLE 1. DEFINITIONS
Section 1.1Definitions. As used in this Agreement,
the following terms when capitalized have the meanings
indicated.
"Affiliate" shall have the meaning ascribed by Rule
12b-2 promulgated under the Exchange Act.
"Agreement" shall mean this Agreement and Plan of
Merger, including the Schedules and Exhibits hereto, all
as amended or otherwise modified from time to time.
"Average Market Price" shall mean the average of the
daily closing sale prices of a share of Tidewater Common
Stock on the New York Stock Exchange as reported in The
Wall Street Journal for the 10 consecutive trading days
that end on the second trading day prior to the Closing
Date.
"Benefit Arrangement" means any employment, severance
or similar contract, or any other contract, plan, policy
or arrangement (whether or not written) providing for
compensation, bonus, profit-sharing, stock option or other
stock related rights or other forms of incentive or
deferred compensation, vacation benefits, insurance
coverage (including any self-insured arrangement), health
or medical benefits, disability benefits, severance
benefits and post-employment or retirement benefits
(including compensation, pension, health, medical or life
insurance benefits), other than the Employee Plans, that
(A) is maintained, administered or contributed to by the
employer and (B) covers any employee or former employee of
the employer.
2
"Business Day" shall mean a day other than a
Saturday, a Sunday or a day on which national banks or the
New York Stock Exchange is closed.
"Closing Date" shall have the meaning ascribed to it
in Section 2.1(a).
"Code" shall mean the Internal Revenue Code of 1986,
as amended.
"DGCL" shall mean the General Corporation Law of the
State of Delaware, as amended.
"Effective Date" shall have the meaning ascribed to
it in Section 2.1(b) hereof.
"Effective Time" shall have the meaning ascribed to
it in Section 2.1(b) hereof.
"Employee Plan" means a plan or arrangement as
defined in Section 3(3) of ERISA, that (A) is subject to
any provision of ERISA, (B) is maintained, administered or
contributed to by the employer and (C) covers any employee
or former employee of the employer.
"Environmental Laws" shall have the meaning ascribed
to it in Section 4.23.
"ERISA" means the Employee Retirement Income Security
Act of 1974, as amended, and the rules and regulations
promulgated thereunder.
"Exchange Act" shall mean the Securities Exchange Act
of 1934, as amended.
"Xxxxxxxx Audited Financial Statements" shall mean
the audited balance sheets and related statements of
income, stockholders' equity and cash flows, and the
related notes thereto of Xxxxxxxx as of and for the years
ended December 31, 1992, 1993 and 1994.
"Xxxxxxxx Common Stock" means the shares of Xxxxxxxx
common stock, $.10 par value per share.
"Xxxxxxxx Consolidated Group" shall mean Xxxxxxxx and
any entity in which Xxxxxxxx directly or indirectly owns
at least 50% of its equity interest, provided that this
definition shall not include any of the entities in the
North Sea Group.
"Xxxxxxxx Financial Statements" shall mean the
Xxxxxxxx Audited Financial Statements and the Xxxxxxxx
Interim Financial Statements, collectively.
"Xxxxxxxx Group" shall mean the Xxxxxxxx Consolidated
Group and the North Sea Group.
"Xxxxxxxx Interim Financial Statements" shall mean
the unaudited balance sheet, and the related unaudited
statements of income and cash flows of Xxxxxxxx as of and
for the nine-month period ended September 30, 1995.
3
"Xxxxxxxx Latest Balance Sheet" shall mean the
balance sheet of Xxxxxxxx included in the Xxxxxxxx Interim
Financial Statements.
"Xxxxxxxx Stockholder Rights Plan" shall mean the
Rights Agreement dated as of June 20, 1995, by and between
Xxxxxxxx and First Interstate Bank of Texas, N.A., as
rights agent.
"Xxxxxxxx Vessels" shall have the meaning ascribed in
Section 4.13 hereof.
"HSR Act" shall mean the Xxxx-Xxxxx-Xxxxxx Antitrust
Improvements Act of 1976, as amended.
"HSR Report" shall mean the premerger notification
and report form to be filed under the HSR Act.
"Knowledge of Xxxxxxxx" shall mean the actual
knowledge of Xxxxx X. Xxxxxxxx, Xxxxxx X. Xxxxxxx or
Xxxxxx X. Xxxxxxx, all being executive officers of
Xxxxxxxx, without obligation to conduct further inquiry
outside the ordinary course of business.
"Knowledge of Tidewater" shall mean the actual
knowledge of Xxxxxxx X. X'Xxxxxx, Xxx X. Xxxxxxx, Xxxxxxx
X. Xxxxxxxx, Xxxxxxx X. Xxxxxx or Cliffe X. Xxxxxxx, all
being executive officers of Tidewater, without obligation
to conduct further inquiry outside the ordinary course of
business.
"Liens" shall mean pledges, liens, defects, leases,
licenses, equities, conditional sales contracts, charges,
claims, encumbrances, security interests, easements,
restrictions, chattel mortgages, mortgages or deeds of
trust, of any kind or nature whatsoever.
"Material Adverse Effect" shall mean with respect to
any party, a material adverse effect on the financial
condition, results of operations, business or prospects of
such party and its 20% or more-owned direct and indirect
subsidiaries, taken as a whole; provided, however, that a
general economic decline or a decline experienced by the
offshore marine service industry, generally, shall not
constitute a Material Adverse Effect; and provided
further, that the parties agree that with respect only to
those acts, events or occurrences that result, or that are
reasonably likely to result, individually or in the
aggregate, in a quantifiable loss, cost or expense (a
"Quantifiable Loss"): (i) with respect to Xxxxxxxx and
its 20% or more owned subsidiaries, a Quantifiable Loss
that does not exceed $6 million, and (ii) with respect to
Tidewater and its 20% or more owned subsidiaries, a
Quantifiable Loss that does not exceed $35 million, shall
not be deemed to constitute a Material Adverse Effect, but
a Quantifiable Loss that does exceed $6 million (with
respect to Xxxxxxxx) or $35 million (with respect to
Tidewater), shall be deemed to constitute a Material
Adverse Effect. The parties acknowledge and agree that
acts, events or occurrences, the effects or reasonably
likely effects of which are not susceptible of being
measured or reduced to a Quantifiable Loss could
nevertheless constitute a Material Adverse Effect, and
that the second proviso of the foregoing sentence shall
not preclude either party from asserting that such acts or
events or occurrences have caused or resulted in, or are
reasonably likely to cause or result in, a Material
Adverse Effect.
4
"Multiemployer Plan" means a plan or arrangement as
defined in Section 4001(a)(3) and 3(37) of ERISA.
"North Sea Group" shall mean Ravensworth Investments
Limited ("Ravensworth"), Xxxxxxxx Offshore Limited
("HOL"), Seaboard Holdings Limited ("Seaboard"), and any
of their respective subsidiaries.
"Permitted Liens" shall mean any mechanic's,
worker's, materialmen's, operator's, maritime or other
liens arising as a matter of law in the ordinary course of
business.
"Person" shall mean an individual, firm, corporation,
general or limited partnership, limited liability company,
limited liability partnership, joint venture, trust,
governmental authority or body, association,
unincorporated organization or other entity.
"Pre-Closing Periods" shall mean all Tax periods
ending at or before the Effective Time and, with respect
to any Tax period that includes but does not end at the
Effective Time, the portion of such period that ends at
and includes the Effective Time.
"Proxy Statement" shall mean the proxy statement of
Xxxxxxxx to be included in the Registration Statement for
the purpose of obtaining the approval of the stockholders
of Xxxxxxxx of this Agreement and the prospectus of
Tidewater to be included in the Registration Statement for
the purpose of offering the Tidewater Common Stock to the
Xxxxxxxx stockholders upon consummation of the Merger.
"Ravensworth Options" shall mean the options granted
to Xxxxxxxx, exercisable between January 1, 1995 and March
31, 1996 and between January 1, 1995 and March 31, 1997,
respectively, to acquire additional 25.1% and 25%
interests, respectively, in Ravensworth Investments
Limited pursuant to the Stock Option and Ancillary Rights
Agreement dated as of May 26, 1993 by and between
Ravensworth Holdings Limited and Xxxxxxxx.
"Registration Statement" shall mean the registration
statement on Form S-4 to be filed by Tidewater with the
SEC for the purpose, among other things, of registering
the Tidewater Common Stock which will be issued to the
holders of Xxxxxxxx Common Stock upon consummation of the
Merger.
"Returns" shall mean all returns, reports, estimates,
declarations and statements of any nature regarding Taxes
for any Pre-Closing Period required to be filed by the
taxpayer relating to its income, properties or operations.
"Rights" shall mean the rights associated with shares
of Tidewater Common Stock to purchase a unit consisting of
one two-hundredth of a share of Series A Participating
Preferred Stock, without par value, of Tidewater upon the
terms and subject to the conditions of the Tidewater
Stockholder Rights Plan.
"SEC" shall mean the Securities and Exchange
Commission of the United States.
5
"Securities Act" shall mean the Securities Act of
1933, as amended.
"Special Meeting" shall have the meaning ascribed in
Section 6.2(c) hereof.
"Surviving Corporation" shall mean Xxxxxxxx following
the Effective Time.
"Taxes" shall mean any federal, state, local, foreign
or other taxes (including, without limitation, income,
alternative minimum, franchise, property, sales, use,
lease, excise, premium, payroll, wage, employment or
withholding taxes), fees, duties, assessments,
withholdings or governmental charges of any kind
whatsoever (including interest, penalties and additions to
tax).
"Tidewater Affiliated Group" shall mean Tidewater,
Sub, Tidewater Marine Inc., Tidewater Compression Service
Inc., Gulf Fleet Supply Vessels, Inc., Xxxxxxx Marine
Corporation, Xxxxxxx Marine, S.A., Seafarer Boat
Corporation, Southern Ocean Services PTE. Ltd., Tidewater
Nautico, Inc., Twenty Grand Marine Service, Inc., Twenty
Grand Offshore, Inc., Xxxxxx Gulf Marine Operators, Inc.
and Xxxxxx Gulf Marine International Limited.
"Tidewater Audited Financial Statements" shall mean
the audited balance sheets, and the related statements of
earnings, stockholders' equity and cash flows, and the
related notes thereto of Tidewater as of and for the years
ended March 31, 1993, 1994 and 1995.
"Tidewater Common Stock" shall mean shares of
Tidewater common stock, $.10 par value per share.
"Tidewater Financial Statements" shall mean the
Tidewater Audited Financial Statements and the Tidewater
Interim Financial Statements.
"Tidewater Interim Financial Statements" shall mean
the unaudited balance sheet, and the related unaudited
statements of earnings and cash flows as of and for the
six month period ended September 30, 1995.
"Tidewater Latest Balance Sheet" shall mean the
balance sheet included in the Tidewater Interim Financial
Statements.
"Tidewater Stockholder Rights Plan" shall mean the
Restated Rights Agreement dated as of December 17, 1993 by
and between Tidewater and the First National Bank of
Boston, as rights agent.
"Title IV Plan" means an Employee Plan, other than
any Multiemployer Plan, subject to Title IV of ERISA.
ARTICLE 2. THE CLOSING; THE MERGER; EFFECTS OF THE MERGER
Section 2.1 Closing. (a) The closing of the
transactions contemplated herein (the "Closing") will take
place, assuming satisfaction or waiver of each of the
conditions set forth in Article 7 hereof, at the offices
of Jones, Walker, Waechter, Poitevent, Carrere & Xxxxxxx,
6
L.L.P., 000 Xx. Xxxxxxx Xxxxxx, Xxx Xxxxxxx, Xxxxxxxxx, at
10:00 A.M. (Central Time) on a date to be mutually agreed
upon between the parties, which shall be no later than the
third Business Day after satisfaction of the latest to
occur of the conditions set forth in Sections 7.1, 7.2(c)
and 7.3(c), or if no date has been agreed to, on any date
specified by one party to the other upon five days' notice
following satisfaction of such conditions; provided, in
each case, that the other conditions set forth in Article
7 shall have been satisfied or waived as provided in
Article 7 at or prior to the Closing (the date of the
Closing being referred to herein as the "Closing Date").
(b) At the Closing, the parties shall (i)
deliver the documents, certificates and opinions required
to be delivered by Article 7 hereof, (ii) provide proof or
indication of the satisfaction or waiver of each of the
conditions set forth in Article 7 hereof, (iii) cause the
appropriate officers of Xxxxxxxx to execute and deliver
the Certificate of Merger (the "Certificate of Merger") in
substantially the form attached as Exhibit A hereto and
(iv) consummate the Merger by causing to be filed the
properly executed Certificate of Merger with the Secretary
of State of the State of Delaware in accordance with the
provisions of the DGCL. The Merger shall be effective
upon filing of the Certificate of Merger with the
Secretary of State of Delaware (such date and time being
hereinafter referred to respectively as the "Effective
Date" and the "Effective Time").
Section 2.2 The Merger. Subject to the terms and
conditions of this Agreement, Sub shall be merged with and
into Xxxxxxxx at the Effective Time. Following the
Merger, the separate corporate existence of Sub shall
cease and Xxxxxxxx shall be the Surviving Corporation and
shall succeed to and assume all the rights and obligations
of Sub in accordance with the DGCL.
Section 2.3 Effects of the Merger; Certificate and
By-laws; Directors and Officers. (a) The Merger shall have
the effects specified in Section 259(a) of the DGCL.
(b) The Certificate of Incorporation of
Xxxxxxxx, as amended and restated and attached to the
Certificate of Merger, shall be the Certificate of
Incorporation of the Surviving Corporation thereafter
unless and until amended in accordance with its terms and
as provided by law.
(c) The By-laws of Sub as in effect at the
Effective Time shall be the By-laws of the Surviving
Corporation thereafter unless and until amended in
accordance with their terms, the terms of the Certificate
of Incorporation of the Surviving Corporation and as
provided by law.
(d) The directors and officers of Sub at the
Effective Time shall be the directors and officers of the
Surviving Corporation thereafter, each to hold a
directorship or office in accordance with the Certificate
of Incorporation and By-laws of the Surviving Corporation
until their respective successors are duly elected and
qualified.
ARTICLE 3. MERGER CONSIDERATION; CONVERSION OF SHARES
Section 3.1 Conversion of Shares. (a) At the
Effective Time, by virtue of the Merger and without any
further action on the part of Tidewater, Sub, Xxxxxxxx or
the Surviving Corporation, or any holder of any of the
following securities:
7
(i) each share of common stock of Sub
issued and outstanding at the
Effective Time shall be converted into
one share of the common stock, $.10
par value per share, of the Surviving
Corporation;
(ii) each issued share of Xxxxxxxx Common
Stock that is held in treasury by
Xxxxxxxx or held by any subsidiary of
Xxxxxxxx shall be cancelled and no
stock of Tidewater or other
consideration shall be delivered in
exchange therefor;
(iii) each share of Xxxxxxxx Common Stock
issued and outstanding at the
Effective Time shall be converted into
the right to receive .667 (as it may
be adjusted as provided herein, the
"Exchange Ratio") of a fully paid and
nonassessable share of Tidewater
Common Stock and associated Rights
(the "Merger Consideration"); provided
that, if the Average Market Price of a
share of Tidewater Common Stock is (a)
less than $24.50, then the Exchange
Ratio shall equal that number obtained
by dividing $16.34 by the Average
Market Price or (b) greater than
$32.50, then the Exchange Ratio shall
equal that number obtained by dividing
$21.68 by the Average Market Price;
provided further that in no event
shall the Exchange Ratio, as so
adjusted, be less than .60 or greater
than .74; provided further that,
except as may otherwise be agreed by
Tidewater pursuant to Section 6.11
hereof, in no event shall the
aggregate number of shares of Xxxxxxxx
Common Stock to be converted at the
Effective Time exceed 13,510,336 less
the number of unissued shares of
Xxxxxxxx Common Stock subject to
outstanding Xxxxxxxx Disclosed
Employee Stock Options (as defined in
Section 4.3(a)) that remain
unexercised at the Effective Time.
(b) Upon conversion of the shares of Xxxxxxxx
Common Stock into the Merger Consideration in the manner
described in paragraph 3.1(a)(iii) above, each record
holder of issued and outstanding Xxxxxxxx Common Stock
immediately prior to the Effective Time shall have the
right to receive a certificate representing such whole
number of shares of Tidewater Common Stock (together with
the associated Rights) equal to the product of (A) the
Exchange Ratio and (B) the number of issued and
outstanding shares of Xxxxxxxx Common Stock of which such
Person is the record holder immediately prior to the
Effective Time.
(c) In lieu of the issuance of fractional
shares of Tidewater Common Stock, each holder of record of
issued and outstanding shares of Xxxxxxxx Common Stock as
of the Effective Time shall be entitled to receive a cash
payment (without interest) (each a "Fractional Payment"
and, collectively, the "Fractional Payments") equal to the
fair market value of a fraction of a share of Tidewater
Common Stock to which such holder would be entitled but
for this provision. For purposes of calculating such cash
payment, the fair market value of a fraction of a share of
Tidewater Common Stock shall be such fraction multiplied
by the Average Market Price.
8
Section 3.2 Exchange of Stock Certificates; Record
Date. (a) On or after the Effective Date, each holder of
record of a certificate or certificates that immediately
prior to the Effective Time represented issued and
outstanding shares of Xxxxxxxx Common Stock whose shares
were converted into the Merger Consideration and, where
applicable, a right to Fractional Payments pursuant to
Section 3.1 hereof shall surrender such certificates for
cancellation to Tidewater, together with a letter of
transmittal in the form of Exhibit B hereto, duly
executed. Such letter of transmittal shall require each
former record holder of a certificate or certificates that
represented Xxxxxxxx Common Stock to specify whether such
person is a citizen of the United States, within the
meaning of the Merchant Marine Act of 1936, as amended,
the Shipping Act of 1916, as amended, and the Merchant
Marine Act of 1920, as amended, and the regulations
thereunder (the "Federal Maritime Laws"). In exchange
therefor, Tidewater shall issue to each such holder who
has appropriately confirmed that he is a United States
citizen a "United States Citizen" certificate, and to each
other holder, a "Non-Citizen" certificate, representing in
each case the number of whole shares of Tidewater Common
Stock that such holder has the right to receive pursuant
to the provisions of Section 3.1(b), and pay such holder
any cash payment in lieu of any fractional share in
accordance with Section 3.1(c), and the certificates
representing shares of Xxxxxxxx Common Stock so
surrendered shall forthwith be cancelled.
(b) Tidewater shall deliver the Merger
Consideration and the Fractional Payments required under
this Agreement to such Persons who were record owners of
the Xxxxxxxx Common Stock as of the close of business on
the Closing Date.
Section 3.3 No Further Rights in Xxxxxxxx Common
Stock. As of the Effective Time, all shares of Xxxxxxxx
Common Stock shall no longer be outstanding and shall
automatically be cancelled and shall cease to exist, and
each holder of a certificate representing shares of
Xxxxxxxx Common Stock as of the Effective Time shall cease
to have any rights with respect thereto, except the right
to receive the Merger Consideration and the Fractional
Payments upon surrender of such certificate as provided in
Section 3.2.
ARTICLE 4. REPRESENTATIONS AND WARRANTIES OF XXXXXXXX
Xxxxxxxx represents and warrants to Tidewater and
Sub, as of the date hereof that, except as set forth in
the Schedules numbered to correspond to the applicable
representation or warranty:
Section 4.1 Organization. (a) Xxxxxxxx is a
corporation duly organized, validly existing and in good
standing under the laws of the State of Delaware and has
all corporate power and authority to carry on its business
as now being conducted and to own its properties. Each
other member of the Xxxxxxxx Consolidated Group, and, to
the Knowledge of Xxxxxxxx, each member of the North Sea
Group, is duly organized under the laws of the state or
foreign nation of its organization and has all the
requisite power and authority under the laws of such
jurisdiction to carry on its business as now being
conducted and to own its properties. Each member of the
Xxxxxxxx Consolidated Group, and, to the Knowledge of
Xxxxxxxx, each member of the North Sea Group, is duly
qualified to do business and is in good standing in each
state and foreign jurisdiction in which the character or
location of the properties owned or leased by it or the
nature of the business conducted by it makes such
qualification necessary, except where the failure to be so
qualified or in good standing would not have a Material
Adverse Effect on Xxxxxxxx.
9
Section 4.2 Affiliated Entities. (a) Schedule 4.2
lists each member of the Xxxxxxxx Group. All shares of
the outstanding capital stock or equity interests in each
member of the Xxxxxxxx Consolidated Group have been duly
authorized and validly issued and are fully paid and
nonassessable and are not subject to preemptive rights
and, except as set forth in Schedule 4.2, are owned by
Xxxxxxxx, by another member of the Xxxxxxxx Consolidated
Group or by Xxxxxxxx and another member of the Xxxxxxxx
Consolidated Group, free and clear of all Liens. To the
Knowledge of Xxxxxxxx, all shares of outstanding capital
stock or equity interests in each member of the North Sea
Group have been duly authorized and validly issued and are
fully paid and nonassessable and are not subject to
preemptive rights and, except as set forth on Schedule
4.2, are free and clear of all Liens. Except as set forth
on Schedule 4.2, the issued and outstanding shares of
Ravensworth Investments Limited, Xxxxxxxx Offshore Limited
and Seaboard Holdings Limited that are owned by Xxxxxxxx
North Sea Safety Inc. have been duly authorized and
validly issued and are fully paid and nonassessable and
are not subject to preemptive rights and, except as set
forth on Schedule 4.2, are owned by Xxxxxxxx North Sea
Safety Inc. free and clear of all Liens.
(b) Except as listed on Schedule 4.2, Xxxxxxxx
does not, directly or indirectly, own of record or
beneficially, or have the right or obligation to acquire,
any outstanding securities or other interest in any
corporation, partnership, joint venture or other entity.
Section 4.3 Capitalization. (a) The authorized
capital stock of Xxxxxxxx consists exclusively of
25,000,000 shares of common stock, $.10 par value per
share (together with associated rights under the Xxxxxxxx
Stockholder Rights Plan), of which 13,168,372 shares were
issued and outstanding and no shares were held in its
treasury as of November 19, 1995, and 5,000,000 shares of
preferred stock, $1.00 par value per share, of which none
were outstanding as of November 19, 1995, and no
additional shares of Xxxxxxxx'x capital stock have been
issued from such date to the date of this Agreement
(except for any shares issued upon exercise of the
Xxxxxxxx Disclosed Employee Stock Options, as defined
below). All of such issued and outstanding shares have
been validly issued, are fully paid and nonassessable and
were issued free of preemptive rights, in compliance with
any rights of first refusal, and in compliance with all
legal requirements. No share of capital stock of Xxxxxxxx
has been, or may be required to be, reacquired by Xxxxxxxx
for any reason or is, or may be required to be, issued by
Xxxxxxxx for any reason, including, without limitation, by
reason of any option, warrant, security or right
convertible into or exchangeable for such shares, or any
agreement to issue any of the foregoing, except (i) for
options granted under, and the 322,654 shares of Xxxxxxxx
Common Stock issuable as of November 19, 1995 upon the
exercise of stock options granted under one of the
following plans: the Xxxxxxxx 1982 Employee Incentive
Plan, the Xxxxxxxx 1989 Employee Incentive Plan or the
Xxxxxxxx 1993 Employee Incentive Plan, all as disclosed on
Schedule 4.3 hereto (the "Xxxxxxxx Disclosed Employee
Stock Options"); (ii) upon exercise of rights associated
with the Xxxxxxxx Common Stock under the circumstances
provided in the Xxxxxxxx Stockholder Rights Plan; (iii)
19,310 shares of restricted Xxxxxxxx Common Stock
permitted to be issued to Xxxxxxxx employees under Section
6.4(j); and (iv) subject to Section 6.11 hereof, shares of
Xxxxxxxx Common Stock that may be issuable in connection
with the exercise of the Ravensworth Options.
Section 4.4 Authority; Enforceable Agreements. (a)
Subject to obtaining approval of the holders of not less
than 66-2/3% of the outstanding Xxxxxxxx Common Stock,
10
Xxxxxxxx has the requisite corporate power and authority
to enter into this Agreement and to consummate the
transactions described herein. The execution and delivery
of this Agreement by Xxxxxxxx and the consummation by
Xxxxxxxx of the transactions described herein have been
duly authorized by all necessary corporate action on the
part of Xxxxxxxx, except for the affirmative vote of the
holders of not less than 66-2/3% of the outstanding
Xxxxxxxx Common Stock, which shall have been obtained
prior to the Effective Time.
(b) This Agreement has been duly executed and
delivered by Xxxxxxxx, and (assuming due execution and
delivery by the other parties hereto) constitutes a valid
and binding obligation of Xxxxxxxx, enforceable in
accordance with its terms, except as such enforceability
may be limited by bankruptcy, insolvency, reorganization
or similar laws affecting creditors' rights generally and
provided that the Merger may not be effected without the
affirmative vote of the holders of not less than 66-2/3%
of the outstanding Xxxxxxxx Common Stock. The other
agreements entered, or to be entered, into by Xxxxxxxx in
connection with this Agreement have been, or will be, duly
executed and delivered by Xxxxxxxx, and (assuming due
execution and delivery by the other parties thereto)
constitute, or will constitute, valid and binding
obligations of Xxxxxxxx, enforceable in accordance with
their terms, except as such enforceability may be limited
by bankruptcy, insolvency, reorganization or similar laws
affecting creditors' rights generally.
Section 4.5 No Conflicts or Consents. (a) Except as
set forth on Schedule 4.5(a), neither the execution,
delivery or performance of this Agreement by Xxxxxxxx nor
the consummation of the transactions contemplated hereby
will (i) violate, conflict with, or result in a breach of
any provision of, constitute a default (or an event that,
with notice or lapse of time or both, would constitute a
default) under, result in the termination of, or
accelerate the performance required by, or result in the
creation of any adverse claim against any of the
properties or assets of any member of the Xxxxxxxx Group
under, (A) the certificates of incorporation, by-laws or
any other organizational documents of any member of the
Xxxxxxxx Group, or (B) any note, bond, mortgage,
indenture, deed of trust, lease, license, agreement or
other instrument or obligation to which any member of the
Xxxxxxxx Group is a party, or by which any member of the
Xxxxxxxx Group or any of its assets are bound, or (ii)
subject to obtaining clearance under the HSR Act and
effectiveness of the Registration Statement, violate any
order, writ, injunction, decree, judgment, statute, rule
or regulation of any governmental body to which any member
of the Xxxxxxxx Group is subject or by which any member of
the Xxxxxxxx Group or any of the assets of the foregoing
are bound.
(b) Except as set forth on Schedule 4.5(b), no
consent, approval, order, permit or authorization of, or
registration, declaration or filing with, any Person or of
any government or any agency or political subdivision
thereof is required for the execution, delivery and
performance by Xxxxxxxx of this Agreement and the
covenants and transactions contemplated hereby or for the
execution, delivery and performance by Xxxxxxxx of any
other agreements entered, or to be entered, into by
Xxxxxxxx in connection with this Agreement, except for (i)
the filing of the HSR Report by Xxxxxxxx under the HSR Act
and the early termination or expiration of all applicable
waiting periods thereunder, (ii) the filing of the Proxy
Statement included in the Registration Statement described
in Section 6.2 hereof with the SEC and the declaration of
effectiveness thereof by the SEC, (iii) the affirmative
vote of the holders of not less than 66-2/3% of the
11
outstanding Xxxxxxxx Common Stock, and (iv) the filing of
the Certificate of Merger as provided in Section 2.1(b)
hereof.
Section 4.6 Corporate Documents, Stockholder
Agreements and Board of Directors. Xxxxxxxx has delivered
to Tidewater true and complete copies of its certificate
of incorporation and by-laws, as amended or restated
through the date of this Agreement and the organizational
documents governing each member of the Xxxxxxxx Group
listed on Schedule 4.2. The minute books of each member
of the Xxxxxxxx Consolidated Group, and to the Knowledge
of Xxxxxxxx, the minute books of each member of the North
Sea Group, contain reasonably complete and accurate
records of all corporate actions of the equity owners of
the various entities and of the boards of directors or
other governing bodies, including committees of such
boards or governing bodies. The stock transfer records of
Xxxxxxxx are maintained by its transfer agent and
registrar and, to the Knowledge of Xxxxxxxx, contain
complete and accurate records of all issuances and
redemptions of stock by Xxxxxxxx. Except as set forth on
Schedule 4.6, neither Xxxxxxxx nor, to the Knowledge of
Xxxxxxxx, any of its Affiliates, is a party to any
agreement with respect to the capital stock of Xxxxxxxx
other than this Agreement.
Section 4.7 SEC Documents; Financial Statements;
Liabilities. (a) Xxxxxxxx has filed all required
reports, schedules, forms, statements and other documents
with the SEC since January 1, 1992 (the "Xxxxxxxx SEC
Documents"). The Xxxxxxxx SEC Documents, and any such
reports, forms and documents filed by Xxxxxxxx with the
SEC after the date hereof, as amended, complied, or will
comply, as to form in all material respects with the
requirements of the Securities Act or the Exchange Act, as
the case may be, and the rules and regulations of the SEC
promulgated thereunder applicable to such Xxxxxxxx SEC
Documents, and none of the Xxxxxxxx SEC Documents
contained or will contain, any untrue statement of a
material fact or omitted to state a material fact required
to be stated therein or necessary in order to make the
statements therein, in light of the circumstances under
which they were made, not misleading. Except to the
extent that information contained in any Xxxxxxxx SEC
Document has been superseded by a later filed Xxxxxxxx SEC
Document, none of the Xxxxxxxx SEC Documents contains any
untrue statement of a material fact or omits to state any
material fact required to be stated therein or necessary
in order to make the statements therein, in light of the
circumstances under which they were made, not misleading.
(b) The Xxxxxxxx Financial Statements included
in the Xxxxxxxx SEC Documents have been audited by Price
Waterhouse LLP, independent accountants (in the case of
the Xxxxxxxx Audited Financial Statements) in accordance
with generally accepted auditing standards, have been
prepared in accordance with United States generally
accepted accounting principles applied on a basis
consistent with prior periods, and present fairly the
financial position of Xxxxxxxx at such dates and the
results of operations and cash flows for the periods then
ended, except, in the case of the Xxxxxxxx Interim
Financial Statements, as permitted by Rule 10-01 of
Regulation S-X of the SEC. The Xxxxxxxx Interim Financial
Statements reflect all adjustments (consisting only of
normal, recurring adjustments) that are necessary for a
fair statement of the results for the interim periods
presented therein. Except as set forth on Schedule
4.7(b), no member of the Xxxxxxxx Consolidated Group has,
nor are any of their respective assets subject to, any
liability, commitment, debt or obligation (of any kind
whatsoever whether absolute or contingent, accrued, fixed,
known, unknown, matured or unmatured) ("Undisclosed
Liabilities"), except (i) as and to the extent reflected
on the Xxxxxxxx Latest Balance Sheet, or (ii) as may have
12
been incurred or may have arisen since the date of the
Xxxxxxxx Latest Balance Sheet in the ordinary course of
business and that are not material individually or in the
aggregate or are permitted by this Agreement.
(c) The Xxxxxxxx Latest Balance Sheet includes
appropriate reserves for all Taxes and other liabilities
incurred as of such date but not yet payable.
(d) Since the date of the Xxxxxxxx Latest
Balance Sheet, there has been no change that has had or is
likely to have a Material Adverse Effect on Xxxxxxxx.
(e) The statements of income included in the
Xxxxxxxx Financial Statements do not contain any income or
revenue realized from services that the Surviving
Corporation would be prohibited or restricted from
offering after the Effective Time pursuant to any covenant
or provision in any material contract to which any member
of the Xxxxxxxx Consolidated Group is a party.
(f) Xxxxxxxx'x investment in the North Sea
Group is recorded on the Xxxxxxxx Financial Statements
under the equity method of accounting. Attached hereto as
Schedule 4.7(f) is a balance sheet reflecting the combined
operations of the North Sea Group as of September 30, 1995
(the "North Sea Group Latest Balance Sheet"). To the
Knowledge of Xxxxxxxx, except as reflected on the North
Sea Group Latest Balance Sheet, no member of the North Sea
Group has, nor are any of its respective assets subject
to, any indebtedness for borrowed money, except as may
have been incurred or may have arisen since the date of
the North Sea Group Latest Balance Sheet in the ordinary
course of business. Except as set forth on Schedule
4.7(f), there is no liability, commitment, debt or
obligation (of any kind whatsoever whether absolute or
contingent, accrued, fixed, known, unknown, matured or
unmatured) of the North Sea Group which is, or could
reasonably be expected to become, a liability, commitment,
debt or other obligation of the Xxxxxxxx Consolidated
Group.
Section 4.8 Accounts Receivable. All of the accounts
receivable reflected on the Xxxxxxxx Latest Balance Sheet
or created thereafter have arisen only from bona fide
transactions in the ordinary course of business, represent
valid obligations owing to Xxxxxxxx or another member of
the Xxxxxxxx Consolidated Group and have been accrued and
recorded in accordance with United States generally
accepted accounting principles. Except as set forth on
Schedule 4.8, such accounts receivable either have been
collected in full or will be collectible in full when due,
without any counterclaims, set-offs or other defenses and
without provision for any allowance for uncollectible
accounts other than such allowance as appears on the
Xxxxxxxx Latest Balance Sheet.
Section 4.9 Absence of Certain Changes or Events.
Except as set forth on Schedule 4.9, since the date of the
Xxxxxxxx Latest Balance Sheet, each member of the Xxxxxxxx
Consolidated Group, and, to the Knowledge of Xxxxxxxx,
each member of the North Sea Group, has conducted its
business only in the ordinary course, and has not:
(a) amended its certificate of incorporation,
by-laws or similar organizational documents;
13
(b) incurred any liability or obligation of
any nature (whether absolute or contingent, accrued,
fixed, known, unknown, matured or unmatured), except in
the ordinary course of business:
(c) suffered or permitted any of its assets to
be or remain subject to any mortgage or other encumbrance
other than those disclosed on Schedule 4.11 or 4.13(a) and
that collateralize indebtedness reflected on the Xxxxxxxx
Latest Balance Sheet or on the North Sea Group Latest
Balance Sheet and Permitted Liens;
(d) merged or consolidated with another entity
or acquired or agreed to acquire any business or any
corporation, partnership or other business organization,
or sold, leased, transferred or otherwise disposed of any
assets except for fair value in the ordinary course of
business; provided that no Xxxxxxxx Vessels (as defined in
Section 4.13) shall have been disposed of;
(e) made any capital expenditure or commitment
therefor, except in the ordinary course of business,
provided that any acquisitions of vessels, or acquisitions
of, or improvements to, real property, shall not be
considered to be in the ordinary course of business;
(f) declared or paid any dividend or made any
distribution with respect to any of its equity interests,
or redeemed, purchased or otherwise acquired any of its
equity interests, or issued, sold or granted any equity
interests or any option, warrant or other right to
purchase or acquire any such interest other than (i)
issuances of Xxxxxxxx Common Stock upon the exercise of
any Xxxxxxxx Disclosed Employee Stock Options, (ii) the
acceptance by Xxxxxxxx of any shares of Xxxxxxxx Common
Stock in consideration of the exercise of the Xxxxxxxx
Disclosed Employee Stock Options or in satisfaction of any
tax or tax withholding obligations of the holders of such
Xxxxxxxx Disclosed Employee Stock Options or restricted
stock awards of Xxxxxxxx Common Stock, (iii) the issuance
of shares of restricted Xxxxxxxx Common Stock pursuant to
Section 6.4(j), (iv) payments within the Xxxxxxxx Group by
entities other than Xxxxxxxx as part of its cash
management program that may be characterized as dividends
or distributions and (v) the issuance of shares of
Xxxxxxxx Common Stock upon the exercise of the Ravensworth
Options in accordance with Section 6.11;
(g) adopted any employee benefit plan or made
any change in any existing employee benefit plans or made
any bonus or profit sharing distribution or payment of any
kind;
(h) increased indebtedness for borrowed money,
or made any loan to any Person, other than through the
issuance of standby or performance letters of credit
issued in the ordinary course of business;
(i) made any change affecting any banking,
safe deposit or power of attorney arrangements;
(j) written off as uncollectible any notes or
accounts receivable, except for notes or accounts
receivable in the ordinary course of business charged to
applicable allowances reflected in the Xxxxxxxx Latest
Balance Sheet, and none of which individually or in the
aggregate is material to Xxxxxxxx;
14
(k) except as contemplated in Section 4.19(m),
entered into or amended any employment, severance or
similar agreement or arrangement with any director or
employee, or granted any increase in the rate of wages,
salaries, bonuses or other compensation or benefits of any
executive officer or other employee, other than any such
increase that is both in the ordinary course of business
consistent with past practice and in an amount such that,
after giving effect thereto, aggregate employee
compensation expense (considered on an annualized basis)
does not exceed 105% of the aggregate employee
compensation expense for Xxxxxxxx'x fiscal year ending
December 31, 1995.
(l) cancelled, waived, released or otherwise
compromised any debt, claim or right, except as permitted
under clause (j);
(m) made any change in any method of
accounting principle or practice;
(n) suffered the termination, suspension or
revocation of any license or permit necessary for the
operation of its business;
(o) entered into any transaction other than on
an arm's-length basis;
(p) suffered any damage, destruction or loss
(whether or not covered by insurance) which has had or
could reasonably be anticipated to have (after giving
effect to any insurance benefit either (i) that has been
received or (ii) the payment obligation for which has been
acknowledged by the insurer) a Material Adverse Effect on
Xxxxxxxx; or
(q) agreed, whether or not in writing, to do
any of the foregoing.
Section 4.10 Contracts. (a) Except as set forth on
Schedule 4.10(a) no member of the Xxxxxxxx Consolidated
Group, and, to the Knowledge of Xxxxxxxx, no member of the
North Sea Group, is a party to: (i) any collective
bargaining agreement; (ii) any written or oral employment
or other agreement or contract with or commitment to any
employee other than crew members of the North Sea Group;
(iii) any agreement, contract or commitment containing any
covenant limiting its freedom to engage in any line of
business or to compete with any Person; (iv) any oral or
written obligation of guaranty or indemnification arising
from any agreement, contract or commitment, except as
provided in its certificate of incorporation; (v) any
joint venture, partnership or similar contract involving a
sharing of profits or expenses; (vi) any non-disclosure
agreement, non-competition agreement, agreement with an
officer, director or employee of any member of the
Xxxxxxxx Group, tax indemnity, tax sharing or tax
allocation agreement, or severance, bonus or commission
agreement; (vii) any agreement or contract under which any
member of the Xxxxxxxx Group is the licensee of computer
software or other intellectual property with a per unit
cost greater than $2,500; (viii) any contract between any
member of the Xxxxxxxx Group and any of their respective
Affiliates (other than other members of the Xxxxxxxx
Group); (ix) any indenture, mortgage, loan, credit, sale-
leaseback or similar contract under which any member of
the Xxxxxxxx Group has borrowed any money or issued any
note, bond or other evidence of indebtedness for borrowed
money or guaranteed indebtedness for money borrowed by
others; (x) any hedge, swap, exchange, futures or similar
agreements or contracts; or (xi) any other oral or written
agreement, contract or commitment that has had or may have
a Material Adverse Effect on Xxxxxxxx.
15
(b) Schedule 4.10(b) contains a list and brief
description (including the names of the parties and the
date and nature of the agreement) of each material
agreement, contract or commitment to which any member of
the Xxxxxxxx Consolidated Group or, to the Knowledge of
Xxxxxxxx, any member of the North Sea Group, is a party
other than short-term or spot market charters of vessels
of not more than 30 days in duration or charters
cancelable without penalty upon notice of either party.
There is no existing breach by any member of the Xxxxxxxx
Consolidated Group of, nor is there any pending or, to the
Knowledge of Xxxxxxxx, threatened, claim that any member
of the Xxxxxxxx Consolidated Group, or, to the Knowledge
of Xxxxxxxx, any member of the North Sea Group, has
breached any of the terms or conditions of any of its
material agreements, contracts or commitments, and to the
Knowledge of Xxxxxxxx, no other parties to such
agreements, contracts or commitments have breached any of
its terms or conditions. Tidewater has been provided with
a complete and accurate copy of each contract listed on
Schedule 4.10(b) other than North Sea charters with
remaining terms of less than six months.
Section 4.11 Properties and Leases other than
Vessels. (a) With respect to assets other than vessels,
a member of the Xxxxxxxx Consolidated Group has, and, to
the Knowledge of Xxxxxxxx, a member of the North Sea Group
has, except with respect to assets disposed of for
adequate consideration in the ordinary course of business
(none of which are material to the operations of its
business) or such assets as are no longer used or useful
in the conduct of its business, good and valid title to
all real property and all other properties and assets
reflected in the Xxxxxxxx Latest Balance Sheet and the
North Sea Group Latest Balance Sheet free and clear of all
Liens, except for (i) Liens that secure indebtedness that
is properly reflected in the Xxxxxxxx Latest Balance Sheet
or the North Sea Group Latest Balance Sheet; (ii) Liens
for Taxes accrued but not yet payable; (iii) Permitted
Liens, provided that the obligations collateralized by
such Permitted Liens are not delinquent or are being
contested in good faith and in no event shall the
obligations collateralized by any such contested Permitted
Liens in the aggregate exceed $150,000; (iv) such
imperfections of title and encumbrances, if any, as do not
materially detract from the value or materially interfere
with the present use of any such properties or assets or
the potential sale of any such properties and assets and
(v) capital leases and leases of such properties, if any,
to third parties for fair and adequate consideration.
Schedule 4.11(a) contains a list of all Liens (other than
Permitted Liens) on property other than vessels
collateralizing indebtedness on the Xxxxxxxx Latest
Balance Sheet and any guaranty or other credit support
arrangement pursuant to which any member of the Xxxxxxxx
Consolidated Group has guaranteed an obligation of any
other member of the Xxxxxxxx Consolidated Group where
assets other than vessels are the collateral. There are
no guaranty or other credit support arrangements pursuant
to which any member of the Xxxxxxxx Group has guaranteed
an obligation of any member of the North Sea Group where
assets other than vessels are collateral other than those
set forth on Schedule 4.11(a). A member of the Xxxxxxxx
Consolidated Group and, to the Knowledge of Xxxxxxxx, a
member of the North Sea Group, owns, or has valid
leasehold interests in, all properties and assets, other
than vessels, used in the conduct of its business.
(b) With respect to each lease of any real
property, or a material amount of other personal property
(other than vessels) to which a member of the Xxxxxxxx
Consolidated Group is a party, (i) such member of the
Xxxxxxxx Consolidated Group has a valid leasehold interest
in such real property or personal property; (ii) such
lease is in full force and effect in accordance with its
terms; (iii) all rents and other monetary amounts that
have become due and payable thereunder have been paid in
16
full; (iv) no waiver, indulgence or postponement of the
obligations thereunder has been granted by the other party
thereto; (v) there exists no material default (or an event
that, with notice or lapse of time or both would
constitute a material default) under such lease; (vi) such
member of the Xxxxxxxx Consolidated Group has not violated
any of the terms or conditions under any such lease and to
the Knowledge of Xxxxxxxx there has been no, (A) condition
or covenant to be observed or performed by any other party
under any such lease that has not been fully observed and
performed and (B) in the case of each prime lease
concerning demised premises subleased to any member of the
Xxxxxxxx Consolidated Group, condition or covenant to be
observed or performed by each party thereto that has not
been fully observed and performed and there does not exist
any event of default or event, occurrence, condition or
act that, with the giving of notice, the lapse of time or
the happening of any further event or condition, would
become a default under any such prime lease; and (vii) the
transactions described in this Agreement will not
constitute a default under or cause for termination or
modification of such lease.
(c) The rent charged to any member of the
Xxxxxxxx Group under any lease, other than with respect to
vessels, between any member of the Xxxxxxxx Group and any
of its Affiliates (other than another member of the
Xxxxxxxx Group) is at or below the market rate and any
such lease contains such other terms and conditions that
are no less favorable to Xxxxxxxx than would be obtainable
in an arms-length transaction with an independent third
party lessor.
(d) Schedule 4.11(d) contains a list of all
real property owned by members of the Xxxxxxxx Group and a
list of all leases, other than with respect to vessels, to
which the members of the Xxxxxxxx Group are parties, which
list includes a reasonable description of the location and
approximate square footage of each property, whether owned
or leased, and the term of each such lease, including all
renewal options. Complete and correct copies of each
lease have been delivered to Tidewater.
Section 4.12 Condition of Xxxxxxxx'x Assets Other
than Vessels. All of the tangible assets of the Xxxxxxxx
Consolidated Group (other than vessels) are currently in
good and usable condition, ordinary wear and tear
excepted, and are being used in the business of the
Xxxxxxxx Consolidated Group. There are no defects in such
assets or other conditions that have or would be
reasonably likely to have, a Material Adverse Effect on
Xxxxxxxx. Such assets and the other properties being
leased by a member of the Xxxxxxxx Group pursuant to the
leases described on Schedule 4.11(d), together with the
vessels listed on Schedule 4.13, constitute all of the
operating assets being utilized by the Xxxxxxxx Group in
the conduct of its business and such assets are sufficient
in quantity and otherwise adequate for the operations of
the Xxxxxxxx Group as currently conducted.
Section 4.13 Vessels. (a) Schedule 4.13(a) hereto
sets forth a list of all vessels owned, leased, chartered
or managed by any member of the Xxxxxxxx Group on the date
hereof and the name of the nation under which each such
vessel is documented and flagged, and indicates any such
vessels that are laid up or being held for sale on the
date hereof (such vessels (other than any such vessels
that are managed on the date hereof) being referred to
herein as "Xxxxxxxx Vessels"). With respect to the owned
Xxxxxxxx Vessels, a member of the Xxxxxxxx Group has good
title to each such vessel free and clear of all Liens,
except for (i) Liens that collateralize indebtedness that
is properly reflected in the Xxxxxxxx Latest Balance Sheet
or the North Sea Group Latest Balance Sheet; (ii) Liens
17
for Taxes accrued but not yet payable; (iii) Permitted
Liens provided that the obligations collateralized by such
Permitted Liens are not delinquent or are being contested
in good faith and in no event shall the obligations,
individually or in the aggregate, collateralized by such
contested Permitted Liens exceed $150,000 in the
aggregate. Schedule 4.13(a) contains a list of all Liens
(other than Permitted Liens) on vessels collateralizing
indebtedness on the Xxxxxxxx Latest Balance Sheet or the
North Sea Group Latest Balance Sheet and any guaranty or
other credit support arrangement pursuant to which any
member of the Xxxxxxxx Group has guaranteed an obligation
of any other member of the Xxxxxxxx Group where vessels
are the collateral.
(b) With respect to each Xxxxxxxx Vessel that is
operated by a member of the Xxxxxxxx Group under lease or
charter, (i) such member of the Xxxxxxxx Group has a valid
right to charter or a valid leasehold interest in such
vessel; (ii) such charter agreement or lease is in full
force and effect in accordance with its terms; (iii) all
rents, charter payments and other monetary amounts that
have become due and payable thereunder have been paid in
full; (iv) no waiver, indulgence or postponement of the
obligations thereunder has been granted by the other party
thereto; (v) there exists no material default (or an event
that, with notice or lapse of time or both would
constitute a material default) under such charter
agreement or lease; (vi) such member of the Xxxxxxxx Group
has not violated any of the terms or conditions under any
such charter agreement or lease and to the Knowledge of
Xxxxxxxx there is no condition or covenants to be observed
or performed by any other party under such charter
agreement or lease that has not been fully observed or
performed; and (viii) the transactions described in this
Agreement will not constitute a default under or cause for
termination or modification of such charter agreement or
lease.
(c) Schedule 4.13(c) contains a list of all leases
or charters providing for the use by a member of the
Xxxxxxxx Group of a Xxxxxxxx Vessel other than leases or
charters between members of the North Sea Group, which
list contains a description of the terms of such lease or
charter. Complete and correct copies of each lease or
charter have been delivered to Tidewater.
(d) With respect to each Xxxxxxxx Vessel: (i) such
Xxxxxxxx Vessel is lawfully documented under the flag of
the nation listed on Schedule 4.13 for such Xxxxxxxx
Vessel, (ii) such Xxxxxxxx Vessel is afloat and in
satisfactory operating condition for charter hire, (iii)
such Xxxxxxxx Vessel holds in full force and effect all
certificates, licenses, permits and rights required for
operation in the manner vessels of its kind are being
operated in the geographical area in which such Xxxxxxxx
Vessel is presently being operated and (iv) no event has
occurred and no condition exists that would endanger the
maintenance of the classification of such Xxxxxxxx Vessel.
Section 4.14 Voting Requirements. The affirmative
vote of the holders of not less than 66-2/3% of the
outstanding shares of Xxxxxxxx Common Stock entitled to
vote on the Merger is the only vote of the holders of any
class or series of Xxxxxxxx'x capital stock necessary to
approve this Agreement and the transactions described
herein.
Section 4.15 State Takeover Statutes; Xxxxxxxx
Stockholder Rights Plan. (a) The Board of Directors of
Xxxxxxxx has approved the Merger, this Agreement and the
transactions described in this Agreement, and the
provisions of Section 203 of the DGCL are inapplicable to
18
the Merger, this Agreement and the transactions described
in this Agreement; provided, however, that the foregoing
shall not be construed to mean that the Board of Directors
of Xxxxxxxx has approved any stockholder of Xxxxxxxx
becoming an "Interested Stockholder" for purposes of
Section 203 of the DGCL. No other state takeover statute
or similar statute or regulation applies or purports to
apply to Xxxxxxxx in connection with the Merger, this
Agreement or any of the transactions described in this
Agreement.
(b) The Board of Directors of Xxxxxxxx has taken all
action necessary to render the provisions of the Xxxxxxxx
Stockholder Rights Plan inapplicable to Tidewater, the
Merger, this Agreement and the transactions described in
this Agreement.
Section 4.16 Accounting Matters. No member of the
Xxxxxxxx Group, nor to the Knowledge of Xxxxxxxx any of
its Affiliates, has taken or agreed to take any action
that (without giving effect to any action taken or agreed
to be taken by Tidewater or any of its Affiliates) would
prevent Tidewater from accounting for the business
combination to be effected by the Merger as a pooling-of-
interests. Within three business days of the execution of
this Agreement, Xxxxxxxx will have received letters from
its independent public accountants and the Tidewater
independent public accountants to the effects that if the
Merger were to be consummated on the date of this
Agreement, it would qualify for pooling-of-interests
treatment under the generally accepted accounting
principles of the United States.
Section 4.17 Suppliers and Customers. To the
Knowledge of Xxxxxxxx, (a) no supplier providing products,
materials or services to any member of the Xxxxxxxx Group
intends to cease selling such products, materials or
services to any member of the Xxxxxxxx Group or to limit
or reduce such sales to any member of the Xxxxxxxx Group
or materially alter the terms or conditions of any such
sales and (b) no customer of any member of the Xxxxxxxx
Group intends to terminate, limit or reduce its or their
business relations with any member of the Xxxxxxxx Group.
Section 4.18 Employee Matters. (a) Schedule 4.18(a)
sets forth the name, title, current annual compensation
rate (including bonus and commissions), current base
salary rate, accrued bonus, accrued sick leave, accrued
severance pay and accrued vacation benefits of each
officer of each member of the Xxxxxxxx Consolidated Group,
and a list of all employment, consulting, employee
confidentiality or similar agreements to which any member
of the Xxxxxxxx Consolidated Group is a party. Copies of
organizational charts, any employee handbook(s), and any
reports and/or plans prepared or adopted pursuant to the
Equal Employment Opportunity Act of 1972, as amended, have
been provided to Tidewater.
(b) Each of the following is true with respect
to the Xxxxxxxx Consolidated Group and, to the Knowledge
of Xxxxxxxx, the North Sea Group:
(i) each such member is in compliance with
all applicable laws respecting employment and employment
practices, terms and conditions of employment, wages and
hours and occupational safety and health, and is not
engaged in any unfair labor practice within the meaning of
Section 8 of the National Labor Relations Act, and there
is no proceeding pending or threatened, or, any
investigation pending or threatened against it relating to
19
any thereof, and to the Knowledge of Xxxxxxxx there is no
basis for any such proceeding or investigation;
(ii)none of the employees of any such
member is a member of, or represented by, any labor union
and there are no efforts being made to unionize any of
such employees; and
(iii)there are no charges of, formal,
informal or internal complaints of, or proceedings
involving, discrimination or harassment (including but not
limited to discrimination or harassment based upon sex,
age, marital status, race, religion, color, creed,
national origin, sexual preference, handicap or veteran
status) pending or threatened, nor is there any
investigation pending or threatened, including, but not
limited to, investigations before the Equal Employment
Opportunity Commission or any federal, state or local
agency or court, with respect to any such member.
Section 4.19 Employee Benefit Plans. With respect to
any member of the Xxxxxxxx Consolidated Group:
(a) Schedule 4.19(a) lists each Employee Plan
that each member of the Xxxxxxxx Consolidated Group
maintains, administers, contributes to, or has any
contingent liability with respect thereto. Xxxxxxxx has
provided a true and complete copy of each such Employee
Plan, current summary plan description, (and, if
applicable, related trust documents) and all amendments
thereto and written interpretations thereof together with
(i) the three most recent annual reports prepared in
connection with each such Employee Plan (Form 5500
including, if applicable, Schedule B thereto); (ii) the
most recent actuarial report, if any, and trust reports
prepared in connection with each Employee Plan; (iii) all
material communications received from or sent to the
Internal Revenue Service ("IRS") or the Department of
Labor within the last two years (including a written
description of any material oral communications); (iv) the
most recent IRS determination letter with respect to each
Employee Plan and the most recent application for a
determination letter; (v) all insurance contracts or other
funding arrangements; and (vi) an actuarial study of any
post-employment life or medical benefits provided, if any.
(b) Schedule 4.19(b) identifies each Benefit
Arrangement that each member of the Xxxxxxxx Consolidated
Group maintains, administers, contributes to, or has any
contingent liability with respect thereto. Xxxxxxxx has
furnished to Tidewater copies or descriptions of each
Benefit Arrangement and any of the information set forth
in Section 4.19(a) applicable to any such Benefit
Arrangement. Each Benefit Arrangement has been maintained
and administered in substantial compliance with its terms
and with the requirements (including reporting
requirements) prescribed by any and all statutes, orders,
rules and regulations which are applicable to such Benefit
Arrangement.
(c) Benefits under any Employee Plan or
Benefit Arrangement are as represented in said documents
and have not been increased or modified (whether written
or not written) subsequent to the dates of such documents.
No member of the Xxxxxxxx Consolidated Group has
communicated to any employee or former employee any
intention or commitment to modify any Employee Plan or
Benefit Arrangement or to establish or implement any other
employee or retiree benefit or compensation arrangement.
20
(d) No Employee Plan is (i) a Multiemployer
Plan, (ii) a Title IV Plan or (iii) is maintained in
connection with any trust described in Section 501(c)(9)
of the Code. No member of the Xxxxxxxx Consolidated Group
has ever maintained or become obligated to contribute to
any employee benefit plan (i) that is subject to Title IV
of ERISA, (ii) to which Section 412 of the Code applies,
or (iii) that is a Multiemployer Plan. No member of the
Xxxxxxxx Consolidated Group has within the last five years
engaged in, or is a successor corporation to an entity
that has engaged in, a transaction described in Section
4069 of ERISA.
(e) Each Employee Plan which is intended to be
qualified under Section 401(a) of the Code is so qualified
and has been so qualified during the period from its
adoption to date, and no event has occurred since such
adoption that would adversely affect such qualification
and each trust created in connection with each such
Employee Plan forming a part thereof is exempt from tax
pursuant to Section 501(a) of the Code. A favorable
determination letter has been issued by the IRS as to the
qualification of each such Employee Plan under the Code
and to the effect that each such trust is exempt from
taxation under Section 501(a) of the Code. Each Employee
Plan has been maintained and administered in compliance
with its terms and with the requirements (including
reporting requirements) prescribed by any and all
applicable statutes, orders, rules and regulations,
including but not limited to ERISA and the Code.
(f) Full payment has been made of all amounts
which any member of the Xxxxxxxx Consolidated Group is or
has been required to have paid as contributions to or
benefits due under any Employee Plan or Benefit
Arrangement under applicable law or under the terms of any
such plan or any arrangement.
(g) No member of the Xxxxxxxx Consolidated
Group, or any of their respective directors, officers or
employees has engaged in any transaction with respect to
an Employee Plan that could subject Xxxxxxxx to a tax,
penalty or liability for a prohibited transaction, as
defined in Section 406 of ERISA or Section 4975 of the
Code. None of the assets of any Employee Plan are
invested in employer securities or employer real property.
(h) To the Knowledge of Xxxxxxxx, there are no
facts or circumstances that might give rise to any
liability under Title I of ERISA.
(i) No member of the Xxxxxxxx Consolidated
Group has any current or projected liability in respect of
post-retirement or post-employment welfare benefits for
retired, current or former employees, except as required
to avoid excise tax under Section 4980B of the Code.
(j) Except as disclosed on Schedule 4.19(j),
there is no litigation, administrative or arbitration
proceeding or other dispute pending or threatened that
involves any Employee Plan or Benefit Arrangement which
could reasonably be expected to result in a liability to
the Xxxxxxxx Consolidated Group or Tidewater.
(k) No employee or former employee of any
member of the Xxxxxxxx Consolidated Group will become
entitled to any bonus, retirement, severance, job security
or similar benefit or enhanced benefit (including
acceleration of an award, vesting or exercise of an
incentive award) or any fee or payment of any kind solely
as a result of any of the transactions contemplated
21
hereby, except as disclosed on Schedule 4.19(k) and no
such disclosed payment constitutes a parachute payment
described in Section 280G of the Code, except as disclosed
on Schedule 4.19(k).
(l) To the Knowledge of Xxxxxxxx, all group
health plans (as defined in Code Section 5000(b)(1)) of
any member of the Xxxxxxxx Consolidated Group have at all
times fully complied with all applicable notification and
continuation coverage requirements of Section 4980B(f) of
the Code and Section 601 of ERISA, and the regulations
promulgated thereunder. Further, no Employee Plan
provides health, medical, death or survivor benefits to
any stockholders or directors who are not employees,
former employees or beneficiaries thereof, except to the
extent otherwise required by the continuation requirements
of Section 4980B(f) of the Code and Section 601 of ERISA.
(m) No employee or former employee, officer or
director of any member of the Xxxxxxxx Consolidated Group
is or will become entitled to receive any award under
Xxxxxxxx'x discretionary or other bonus plans except for
(i) cash payments pursuant to Section 6.4(j) of up to
$350,000 in 1995 Incentive Cash Payments (as defined in
Section 6.4(j)), (ii) the issuance pursuant to Section
6.4(j) of an aggregate of 19,310 shares of restricted
Xxxxxxxx Common Stock for 1995 performance and (iii) if
the Closing Date has not occurred by April 30, 1996, cash
payments to officers and employees as incentive payments
for 1996 performance for the period from January 1, 1996
through the Closing Date, such amounts to be prorated and
based on the total 1995 Incentive Cash Payments and to
otherwise be consistent with past practice.
Section 4.20 Tax Matters.
(a) Each of the following is true with respect
to each member of the Xxxxxxxx Group to the extent
applicable to such member:
(i) all Returns have been or will be
timely filed by each member of the Xxxxxxxx Group when due
in accordance with all applicable laws; all Taxes shown on
the Returns have been or will be timely paid when due; the
Returns have been properly completed in compliance with
all applicable laws and regulations and completely and
accurately reflect the facts regarding the income,
expenses, properties, business and operations required to
be shown thereon; the Returns are not subject to penalties
under Section 6662 of the Code (or any corresponding
provision of state, local or foreign tax law);
(ii)except as set forth on Schedule
4.20(a)(ii), each member of the Xxxxxxxx Group has paid
all Taxes required to be paid by it (whether or not shown
on a Return) or for which it could be liable, (provided
that it shall not be considered a breach of this
representation if it is ultimately determined that
additional tax payments are due but such assessment is
based on an adjustment to a return or position, if such
member has a reasonable basis for the position taken with
respect to such Taxes), whether to taxing authorities or
to other persons under tax allocation agreements or
otherwise, and the charges, accruals, and reserves for
Taxes due, or accrued but not yet due, relating to its
income, properties, transactions or operations for any
Pre-Closing Period as reflected on its books (including,
without limitation, the Xxxxxxxx Latest Balance Sheet or
the North Sea Group Latest Balance Sheet) are adequate to
cover such Taxes;
22
(iii)there are no agreements or consents
currently in effect for the extension or waiver of the
time (A) to file any Return or (B) for assessment or
collection of any Taxes relating to the income, properties
or operations of any member of the Xxxxxxxx Group for any
Pre-Closing Period, and no member the Xxxxxxxx Group has
been requested to enter into any such agreement or
consent;
(iv)there are no Liens for Taxes (other
than for current Taxes not yet due and payable) upon the
assets of any member of the Xxxxxxxx Group;
(v) all material elections with respect to
Taxes affecting any member of the Xxxxxxxx Consolidated
Group are set forth in Schedule 4.20(a)(v);
(vi)all Taxes that the Xxxxxxxx Group is
required by law to withhold or collect have been duly
withheld or collected, and have been timely paid over to
the appropriate governmental authorities to the extent due
and payable (provided that it shall not be considered a
breach of this representation if it is ultimately
determined that additional tax payments are due but such
assessment is based on an adjustment to a return or
position, if such member has a reasonable basis for the
position taken with respect to such withholding and
collection);
(vii)Schedule 4.20(a)(vii) hereto sets
forth (A) the taxable years of each member of the Xxxxxxxx
Group as to which the respective statutes of limitations
with respect to Taxes have not expired, and (B) with
respect to such taxable years, those years for which
examinations have not been completed, those years for
which examinations are currently being conducted, those
years for which examinations have not been initiated, and
those years for which required Returns have not yet been
filed. Schedule 4.20(a)(vii) lists each state and foreign
jurisdiction in which any member of the Xxxxxxxx Group
has, in the last three years, filed a Return.
(viii)all Tax Deficiencies which have been
claimed, proposed or asserted against any member of the
Xxxxxxxx Group have been fully paid or finally settled,
and no issue has been raised in any examination which, by
application of similar principles, can be expected to
result in the proposal or assertion of a Tax Deficiency
for any other year not so examined;
(ix)to the Knowledge of Xxxxxxxx, each
member of the Xxxxxxxx Group has complied in all material
respects with all applicable Tax laws;
(x) except as set forth on Schedule
4.20(a)(x), no member of the Xxxxxxxx Group is a party to
any agreement, contract, arrangement or plan that would
result, separately or in the aggregate, in the payment of
any "excess parachute payments" within the meaning of Code
Section 280G (or any comparable provision of state or
local law);
(xi)no member of the Xxxxxxxx Group has
agreed, nor is it required, to make any adjustment under
Code Section 481(a) (or any comparable provision of state
or local law) by reason of a change in accounting method
or otherwise;
23
(xii)no member of the Xxxxxxxx Group has
filed a consent pursuant to the collapsible corporation
provisions of Section 341(f) of the Code (or any
corresponding provision of state, local or foreign income
law) or agreed to have Section 341(f)(2) of the Code (or
any corresponding provision of state, local or foreign
income law) apply to any disposition of any asset owned by
it.
(xiii)except as set forth on Schedule
4.20(a)(xiii), none of the assets of any member of the
Xxxxxxxx Group is property that such company is required
to treat as being owned by any other person pursuant to
the so-called "safe harbor lease" provisions of former
Section 168(f)(8) of the Code.
(xiv)none of the assets of any member of
the Xxxxxxxx Group directly or indirectly secures any
debt, the interest on which is tax exempt under Section
103(a) of the Code.
(xv)none of the assets of any member of
the Xxxxxxxx Group is "tax-exempt use property" within the
meaning of Section 168(h) of the Code.
(xvi)no member of the Xxxxxxxx Group has
made a deemed dividend election under Section 1.1502-
32(f)(2) of the Treasury Regulations or a consent dividend
election under Section 565 of the Code.
(xvii) no member of the Xxxxxxxx Group
has ever been a member of an affiliated group filing for
purposes of filing United States consolidated returns
other than a group of which Xxxxxxxx is the parent
corporation.
(xviii) no member of the Xxxxxxxx Group
is (or has ever been) a party to any tax sharing agreement
nor has any such member assumed the tax liability of any
other person under contract.
(b) Xxxxxxxx has received an opinion of Price
Waterhouse LLP to the effect that the Merger will be
treated for federal income tax purposes as a
reorganization within the meaning of Section 368(a) of the
Code, and that Xxxxxxxx and Tidewater will each be a party
to such reorganization within the meaning of Section
368(b) of the Code.
Section 4.21 Litigation. Except as disclosed on
Schedule 4.21, there are no actions, suits, proceedings,
arbitrations or investigations pending or, to the
Knowledge of Xxxxxxxx, threatened before any court, any
governmental agency or instrumentality or any arbitration
panel, against or affecting any member of the Xxxxxxxx
Consolidated Group or, to the Knowledge of Xxxxxxxx, any
member of the North Sea Group, or any of the directors,
officers, or employees of the foregoing. To the Knowledge
of Xxxxxxxx, no facts or circumstances exist that would be
likely to result in the filing of any such action that
would have a Material Adverse Effect on Xxxxxxxx. Except
as disclosed on Schedule 4.21, no member of the Xxxxxxxx
Group is subject to any currently pending judgment, order
or decree entered in any lawsuit or proceeding.
Section 4.22 Insurance. Schedule 4.22 contains a list
of the insurance policies that each member of the Xxxxxxxx
Consolidated Group currently maintains with respect to its
24
business, vessels, properties and employees as well as a
list of all hull and machinery, protection and indemnity,
pollution, and comprehensive contractual liability
insurance policies that each member of the North Sea Group
maintains with respect to its vessels, as of the date
hereof, each of which is in full force and effect and a
complete and correct copy of each has been delivered to
Tidewater. All insurance premiums currently due with
respect to such policies have been paid and no member of
the Xxxxxxxx Group is otherwise in default with respect to
any such policy, nor has any member of the Xxxxxxxx Group
failed to give any notice or to present any claim under
any such policy in a due and timely manner. There are no
outstanding unpaid claims under any such policy other than
any pending claims under any of Xxxxxxxx'x marine
insurance policies, the amount of which claims have been
recorded as a receivable and all of which are fully
collectible. No member of the Xxxxxxxx Group has received
notice of cancellation or non-renewal of any such policy.
In the opinion of management of Xxxxxxxx, such policies
are sufficient for compliance with all requirements of law
and all agreements to which any member of the Xxxxxxxx
Group is a party.
Section 4.23 Environmental Compliance. (a) Each
member of the Xxxxxxxx Group possesses all necessary
licenses, permits and other approvals and authorizations
that are required under, and are, and to the Knowledge of
Xxxxxxxx at all times in the past have been, in compliance
with, all federal, state, local and foreign laws, common
law duties, ordinances, codes and regulations relating to
pollution or the protection of the environment
(collectively, "Environmental Laws"), including without
limitation all Environmental Laws governing the
generation, use, collection, treatment, storage,
transportation, recovery, removal, discharge or disposal
of hazardous substances or wastes, and all Environmental
Laws imposing record-keeping, maintenance, testing,
inspection, notification and reporting requirements with
respect to hazardous substances or wastes. For purposes
of this Agreement, "hazardous substances" and "hazardous
wastes" are materials defined as "hazardous substances,"
"hazardous wastes," or "hazardous constituents" in (i) the
Comprehensive Environmental Response, Compensation and
Liability Act of 1980, 42 U.S.C. Sections 9601-9675, as
amended by the Superfund Amendments and Reauthorization
Act of 1986, and any amendments thereto and regulations
thereunder; (ii) the Resource Conservation and Recovery
Act of 1976, 42 U.S.C. Sections 6901-6992, as amended by
the Hazardous and Solid Waste Amendments of 1984, and any
amendments thereto and regulations thereunder; (iii) the
Oil Pollution Act of 1990, 33 U.S.C. Sections 2701-2761,
and any amendments thereto and regulations thereunder; or
(iv) any other federal, state, local or foreign
environmental law or regulation.
(b) Except as set forth on Schedule 4.23(b) or
as otherwise disclosed to those executive officers of
Tidewater listed on Schedule 4.23(b), no member of the
Xxxxxxxx Group is, nor has it been, subject to any
administrative or judicial proceeding pursuant to, or has
received any notice of any violation of, or claim alleging
liability under, any Environmental Laws, and, to the
Knowledge of Xxxxxxxx, no facts or circumstances exist
that would be likely to result in a claim, citation or
allegation against any member of the Xxxxxxxx Group for a
violation of, or alleging liability under, any
Environmental Laws that would have a Material Adverse
Effect on Xxxxxxxx.
(c) There are no underground tanks of any type
(including tanks storing gasoline, diesel fuel, oil or
other petroleum products) or disposal sites for hazardous
substances, hazardous wastes or any other waste, located
on or under the real estate currently owned, leased or
25
used by any member of the Xxxxxxxx Group and to the
Knowledge of Xxxxxxxx there were no such disposal sites
located on or under the real estate previously owned,
leased or used by any member of the Xxxxxxxx Group on the
date of the sale thereof by any member of the Xxxxxxxx
Group or during the period of lease for use by any member
of the Xxxxxxxx Group.
(d) Except in the ordinary course of business,
and in all cases in compliance with Environmental Laws,
and except as listed on Schedule 4.23(d), no member of the
Xxxxxxxx Group has engaged any third party to handle,
transport or dispose of hazardous substances or wastes
(including for this purpose, gasoline, diesel fuel, oil or
other petroleum products, or bilge waste) on its behalf.
The disposal by each member of the Xxxxxxxx Group of its
hazardous substances and wastes has been in compliance
with all Environmental Laws.
Tidewater shall not be entitled to assert as a
failure by Xxxxxxxx to satisfy the condition set forth in
Section 7.2(a) a breach of the representations set forth
in this Section 4.23 resulting from any action related to
the disclosure in the first paragraph of Schedule 4.23(b).
Section 4.24 Compliance With Law; Permits. Other than
compliance with Environmental Laws which is covered in
Section 4.23: (a) the operations and activities of each
member of the Xxxxxxxx Consolidated Group, and, to the
Knowledge of Xxxxxxxx, each member of the North Sea Group,
comply with all applicable laws, regulations, ordinances,
rules or orders of any federal, state or local court or
any governmental authority except for any violation or
failure to comply that could not reasonably be expected to
result in a Material Adverse Effect on Xxxxxxxx, and
(b) each member of the Xxxxxxxx Consolidated
Group and, to the Knowledge of Xxxxxxxx, each member of
the North Sea Group, possesses all governmental licenses,
permits and other governmental authorizations that are (i)
required under all federal, state and local laws and
regulations for the ownership, use and operation of its
assets or (ii) otherwise necessary to permit the conduct
of its business without interruption, and such licenses,
permits and authorizations are in full force and effect
and have been and are being fully complied with by it
except for any violation or failure to comply that could
not reasonably be expected to result in a Material Adverse
Effect on Xxxxxxxx. No member of the Xxxxxxxx
Consolidated Group, and to the Knowledge of Xxxxxxxx, no
member of the North Sea Group, has received any notice of
any violation of any of the terms or conditions of any
such license, permit or authorization and, to the
Knowledge of Xxxxxxxx, no facts or circumstances exist
that could form the basis of a revocation, claim, citation
or allegation against it for a violation of any such
license, permit or authorization. No such license, permit
or authorization or any renewal thereof will be
terminated, revoked, suspended, modified or limited in any
respect as a result of the transactions contemplated by
this Agreement except for any violation or failure to
comply that could not reasonably be expected to result in
a Material Adverse Effect on Xxxxxxxx.
Section 4.25 Interests in Clients, Suppliers, Etc.
Except as set forth on Schedule 4.25, no officer or
director of any member of the Xxxxxxxx Group possesses,
directly or indirectly, any financial interest in, or is a
director, officer or employee of, any corporation or
business organization that is a supplier, customer,
lessor, lessee, or competitor or potential competitor of
the Xxxxxxxx Group or that has entered into any contract
with any member of the Xxxxxxxx Group. Ownership of less
than 1% of any class of securities of a company whose
26
securities are registered under the Exchange Act will not
be deemed to be a financial interest for purposes of this
Section 4.25.
Section 4.26 Transactions With Related Parties. (a)
Schedule 4.26(a) lists all transactions between January 1,
1993 (except with respect to the North Sea Group: for
Ravensworth and its subsidiaries, since July 23, 1993, and
for HOL and Seaboard and their subsidiaries, since
November 30, 1994) and the date of this Agreement
involving or for the benefit of any member of the Xxxxxxxx
Group, on the one hand, and any director or officer of any
member of the Xxxxxxxx Group or Affiliate of such director
or officer, on the other hand, including (i) any debtor or
creditor relationship, (ii) any transfer or lease of real
or personal property, (iii) wages, salaries, commissions,
bonuses and agreements relating to employment (except that
with respect to the North Sea Group only such wages,
salaries, commissions, bonuses and agreements as are
currently in effect) and (iv) purchases or sales of
products or services.
(b) Schedule 4.26(b) lists (i) all agreements
and claims of any nature that any officer or director of
any member of the Xxxxxxxx Group or any Affiliate (other
than another member of the Xxxxxxxx Group) of such officer
or director has with or against any member of the Xxxxxxxx
Group as of the date of this Agreement that are not
identified on the Xxxxxxxx Latest Balance Sheet or the
North Sea Group Latest Balance Sheet and (ii) all
agreements and claims of any nature that any member of the
Xxxxxxxx Group has with or against any officer or director
of any member of the Xxxxxxxx Group or any Affiliate
(other than another member of the Xxxxxxxx Group) of such
officer or director as of the date of this Agreement that
are not identified on the Xxxxxxxx Latest Balance Sheet or
the North Sea Group Latest Balance Sheet.
Section 4.27 Statements are True and Correct. None of
the information included in (i) the Registration Statement
to be filed by Tidewater with the SEC in connection with
the Tidewater Common Stock to be issued in the Merger,
(ii) the Proxy Statement to be mailed to the stockholders
of Xxxxxxxx in connection with its stockholders meeting,
and (iii) any other documents to be filed with the SEC or
any other regulatory authority in connection with the
transactions contemplated hereby that has been or will be
supplied by the Xxxxxxxx Group, will, at the respective
times such documents are filed, and, in the case of the
Registration Statement, when it becomes effective and,
with respect to the Proxy Statement, when first mailed to
the stockholders of Xxxxxxxx, be false or misleading with
respect to any material fact, or omit to state any
material fact necessary in order to make the statements
therein not misleading, or, in the case of the Proxy
Statement or any amendment thereof or supplement thereto,
at the time of the Xxxxxxxx stockholders' meeting, be
false or misleading with respect to any material fact, or
omit to state any material fact necessary to make the
statements therein in light of the circumstances under
which they were made not misleading. All documents that
Xxxxxxxx is responsible for filing with the SEC or any
other regulatory authority in connection with the
transactions contemplated hereby, will comply in all
material respects with the provisions of applicable law.
Section 4.28 Citizenship. Xxxxxxxx is a U.S. citizen
and is authorized to conduct business in the United States
coastwise trade within the meaning of the Federal Maritime
Laws.
Section 4.29 Broker's and Finder's Fee. No agent,
broker, Person or firm acting on behalf of Xxxxxxxx is or
will be entitled to any commission or broker's or finder's
27
fee from any of the parties hereto, or from any Affiliate
of the parties hereto, in connection with any of the
transactions contemplated herein, except fees to Xxxxxxx &
Company International to be paid by Xxxxxxxx that are
disclosed in Schedule 4.29.
Section 4.30 Disclosure. (a) No representations or
warranties by Xxxxxxxx in this Agreement and no statement
contained in the schedules or exhibits or in any
certificate to be delivered pursuant to this Agreement,
contains or will contain any untrue statement of material
fact or omits or will omit to state any material fact
necessary, in light of the circumstances under which it
was made, in order to make the statements herein or
therein not misleading.
(b) Tidewater has been furnished with complete
and correct copies of all agreements, instruments and
documents, together with any amendments or supplements
thereto, set forth on, or underlying a disclosure set
forth on, a Schedule provided by Xxxxxxxx. Each of the
Schedules provided by Xxxxxxxx is complete and correct.
ARTICLE 5. REPRESENTATIONS AND WARRANTIES OF TIDEWATER
AND SUB
Tidewater and Sub represent and warrant to Xxxxxxxx,
as of the date hereof that, except as set forth in the
Schedules numbered to correspond to the applicable
representation or warranty:
Section 5.1 Organization. Tidewater and Sub are
corporations duly organized, validly existing and in good
standing under the laws of the State of Delaware and have
all corporate power and authority to carry on their
business as now being conducted and to own their
properties. Each other member of the Tidewater Affiliated
Group is duly organized under the laws of the state or
foreign nation of its organization and has all the
requisite power and authority under the laws of such
jurisdiction to carry on its business as now being
conducted and to own its properties. Each member of the
Tidewater Affiliated Group is duly qualified to do
business and is in good standing in each state and foreign
jurisdiction in which the character or location of the
properties owned or leased by it or the nature of the
business conducted by it makes such qualification
necessary, except where the failure to be so qualified or
in good standing would not have a Material Adverse Effect
on Tidewater.
Section 5.2 Affiliated Entities. All shares of the
outstanding capital stock or equity interests in each such
member of the Tidewater Affiliated Group have been duly
authorized and validly issued and are fully paid and
nonassessable and are not subject to preemptive rights
and, are owned by Tidewater, by another member of the
Tidewater Affiliated Group or by Tidewater and another
member of the Tidewater Affiliated Group, free and clear
of all Liens.
Section 5.3 Capitalization. (a) The authorized
capital stock of Tidewater consists exclusively of
125,000,000 shares of common stock, $.10 par value per
share (together with associated Rights under the Tidewater
Stockholder Rights Plan), of which 53,336,082 shares were
issued and outstanding and no shares were held in its
treasury as of November 19, 1995, and 3,000,000 shares of
preferred stock, no par value, of which none are currently
outstanding, and no additional shares of Tidewater's
capital stock have been issued from such date to the date
of this Agreement (except for any shares issued upon
exercise of any options referred to in the second
following sentence). All of such issued and outstanding
shares have been validly issued, are fully paid and
nonassessable and were issued free of preemptive rights,
28
in compliance with any rights of first refusal, and in
compliance with all legal requirements. No share of
capital stock of Tidewater has been, or may be required to
be, reacquired by Tidewater for any reason or is, or may
be required to be, issued by Tidewater for any reason,
including, without limitation, by reason of any option,
warrant, security or right convertible into or
exchangeable for such shares, or any agreement to issue
any of the foregoing, except (i) for options granted
under, and the 1,497,892 shares of Tidewater Common Stock
issuable as of November 19, 1995 upon the exercise of
stock options granted under, the Tidewater 1992 Stock
Option and Restricted Stock Plan and the Tidewater Inc.
1975 Incentive Program and Stock Option Plan (the
"Tidewater Disclosed Plans") and (ii) upon exercise of the
Rights associated with Tidewater Common Stock under the
circumstances provided in the Tidewater Stockholder Rights
Plan.
(b) The authorized capital stock of Sub
consists of 100 shares of Common Stock, $.10 par value per
share, of which 100 shares are issued and outstanding and
owned by Tidewater and no shares are held in its treasury.
All of such issued and outstanding shares have been
validly issued, are fully paid and nonassessable and were
issued free of pre-emptive rights, in compliance with any
rights of first refusal, and in compliance with all legal
requirements. No share of capital stock of Sub has been,
or may be required to be, reacquired by Sub for any reason
or is, or may be required to be, issued by Sub for any
reason, including by reason of any option, warrant,
security or right convertible into or exchangeable for
such shares or any agreement to issue any of the
foregoing.
Section 5.4 Authority; Enforceable Agreements. (a)
Tidewater and Sub each has the requisite corporate power
and authority to enter into this Agreement and to
consummate the transactions described herein. The
execution and delivery of this Agreement by Tidewater and
Sub and the consummation by Tidewater and Sub of the
transactions described herein have been duly authorized by
all necessary corporate action on the part of Tidewater
and Sub.
(b) This Agreement has been duly executed and
delivered by Tidewater and Sub, and (assuming due
execution and delivery by the other parties thereto)
constitutes a valid and binding obligation of Tidewater
and Sub, enforceable in accordance with its terms, except
as such enforceability may be limited by bankruptcy,
insolvency, reorganization or similar laws affecting
creditors' rights generally. The other agreements
entered, or to be entered, into by Tidewater and Sub in
connection with this Agreement have been, or will be, duly
executed and delivered by Tidewater and Sub, and (assuming
due execution and delivery by the other parties thereto)
constitute, or will constitute, valid and binding
obligations of Tidewater and Sub, enforceable in
accordance with their terms, except as such enforceability
may be limited by bankruptcy, insolvency, reorganization
or similar laws affecting creditors' rights generally.
Section 5.5 No Conflicts or Consents. (a) Neither
the execution, delivery or performance of this Agreement
by Tidewater or Sub nor the consummation of the
transactions contemplated hereby will (i) violate,
conflict with, or result in a breach of any provision of,
constitute a default (or an event that, with notice or
lapse of time or both, would constitute a default) under,
result in the termination of, or accelerate the
performance required by, or result in the creation of any
adverse claim against any of the properties or assets of
any member of the Tidewater Affiliated Group under, (A)
the certificates of incorporation, by-laws or other
organizational documents of any member of the Tidewater
Affiliated Group or (B) any note, bond, mortgage,
indenture, deed of trust, lease, license, agreement or
29
other instrument or obligation to which any member of the
Tidewater Affiliated Group is a party, or by which any
member of the Tidewater Affiliated Group or any of its
assets are bound, or (ii) subject to obtaining clearance
under the HSR Act and effectiveness of the Registration
Statement, violate any order, writ, injunction, decree,
judgment, statute, rule or regulation of any governmental
body to which any member of the Tidewater Affiliated Group
is subject or by which any member of the Tidewater
Affiliated Group or any of the assets of the foregoing are
bound.
(b) No consent, approval, order, permit or
authorization of, or registration, declaration or filing
with, any Person or of any government or any agency or
political subdivision thereof is required for the
execution, delivery and performance by Tidewater or Sub of
this Agreement and the covenants and transactions
contemplated hereby or for the execution, delivery and
performance by Tidewater or Sub of any other agreements
entered, or to be entered, into by Tidewater or Sub in
connection with this Agreement, except for (i) the filing
of the HSR Report by Tidewater under the HSR Act and the
early termination or expiration of applicable waiting
periods thereunder, (ii) the filing of the Registration
Statement on Form S-4 described in Section 6.2 hereof with
the SEC and the declaration of effectiveness thereof by
the SEC and (iii) the filing of the Certificate of Merger
as provided in Section 2.1(b) hereof.
Section 5.6 Corporate Documents, Stockholder
Agreements and Board of Directors. Tidewater has
delivered to Xxxxxxxx true and complete copies of its
certificate of incorporation and by-laws, as amended or
restated through the date of this Agreement, and the
organizational documents governing each member of the
Tidewater Affiliated Group. The minute books of each
member of the Tidewater Affiliated Group contain
reasonably complete and accurate records of all corporate
actions of the equity owners of the various entities and
of the boards of directors or other governing bodies,
including committees of such boards or governing bodies.
The stock transfer records of Tidewater are maintained by
its transfer agent and registrar, and to the Knowledge of
Tidewater, contain complete and accurate records of all
issuances and redemptions of stock by Tidewater. Neither
Tidewater nor any of its Affiliates, is a party to any
agreement with respect to the capital stock of Tidewater
other than this Agreement, the Tidewater Stockholder
Rights Plan and Stock Option Agreements entered into
pursuant to the Tidewater Disclosed Plans.
Section 5.7 SEC Documents; Financial Statements;
Liabilities. (a) Tidewater has filed all required
reports, schedules, forms, statements and other documents
with the SEC since January 1, 1992 (the "Tidewater SEC
Documents"). As of their respective dates, the Tidewater
Documents, and any such reports, forms and documents filed
by Tidewater with the SEC after the date hereof, complied,
or will comply, as to form in all material respects with
the requirements of the Securities Act or the Exchange
Act, as the case may be, and the rules and regulations of
the SEC promulgated thereunder applicable to such
Tidewater SEC Documents, and none of the Tidewater SEC
Documents contained, or will contain, any untrue statement
of a material fact or omitted to state a material fact
required to be stated therein or necessary in order to
make the statements therein, in light of the circumstances
under which they were made, not misleading. Except to the
extent that information contained in any Tidewater SEC
Document has been revised or superseded by a later filed
Tidewater SEC Document, none of the Tidewater SEC
Documents contains any untrue statement of a material fact
or omits to state any material fact required to be stated
therein or necessary in order to make the statements
therein, in light of the circumstances under which they
were made, not misleading.
30
(b) The Tidewater Financial Statements
included in the Tidewater SEC Documents have been audited
by KPMG Peat Marwick, L.L.P., certified public accountants
(in the case of the Tidewater Audited Financial
Statements) in accordance with generally accepted auditing
standards, have been prepared in accordance with United
States generally accepted accounting principles and,
except as disclosed therein, applied on a basis consistent
with prior periods, and present fairly the financial
position of Tidewater and its consolidated subsidiaries at
such dates and the results of operations and cash flows
for the periods then ended, except, in the case of the
Tidewater Interim Financial Statements, as permitted by
Rule 10-01 of Regulation S-X of the SEC. The Tidewater
Interim Financial Statements reflect all adjustments
(consisting only of normal recurring adjustments) that are
necessary for a fair statement of the results for the
interim periods presented therein. No member of the
Tidewater Affiliated Group has, nor are any of their
respective assets subject to, any liability, commitment,
debt or obligation (of any kind whatsoever whether
absolute or contingent, accrued, fixed, known, unknown,
matured or unmatured), except (i) as and to the extent
reflected on the Tidewater Latest Balance Sheet, or (ii)
as may have been incurred or may have arisen since the
date of the Tidewater Latest Balance Sheet in the ordinary
course of business and that are not material individually
or in the aggregate or are permitted by this Agreement.
(c) The Tidewater Latest Balance Sheet
includes appropriate reserves for all Taxes and other
liabilities incurred as of such date but not yet payable.
(d) Since the date of the Tidewater Latest
Balance Sheet, there has been no change that has had or is
likely to have a Material Adverse Effect on Tidewater.
(e) Except as set forth in Schedule 5.7(e),
the statements of earnings included in the Tidewater
Financial Statements do not contain any income or revenue
realized from services that the Surviving Corporation
would be prohibited or restricted from offering after the
Effective Time pursuant to any covenant or provision in
any material contract to which any member of the Tidewater
Affiliated Group is a party.
Section 5.8 Absence of Certain Changes or Events.
Since the date of the Tidewater Latest Balance Sheet, each
member of the Tidewater Affiliated Group has conducted its
business only in the ordinary course, and has not:
(a) amended its certificate of incorporation,
by-laws or similar organizational documents;
(b) merged or consolidated with another entity
(other than a subsidiary) or acquired or agreed to acquire
any business or any corporation, partnership or other
business organization, or sold, leased, transferred or
otherwise disposed of any material portion of its assets
except for fair value in the ordinary course of business;
(c) suffered any damage, destruction or loss
(whether or not covered by insurance) which has had or
could have a Material Adverse Effect on Tidewater; or
31
(d) suffered the termination, suspension or
revocation of any license or permit necessary for the
operation of its business;
(e) entered into any transaction other than on
an arm's-length basis;
(f) declared or paid any dividend or made any
distribution with respect to any of its equity interests,
or redeemed, purchased or otherwise acquired any of its
equity interests, or issued, sold or granted any equity
interests or any option, warrant or other right to
purchase or acquire any such interest other than (i) the
declaration and payment by Tidewater of its normal
quarterly cash dividend of $.125 per share of Tidewater
Common Stock, (ii) grants of, and issuances of shares of
Tidewater Common Stock upon the exercise of, stock options
issued under a Tidewater Disclosed Plan, provided that any
new options granted by Tidewater shall not have covered
more than 500,000 shares, (iii) the acceptance by
Tidewater of any shares in consideration of the exercise
of such Tidewater stock options or in satisfaction of any
tax or tax withholding obligations of the holders of such
options, and (iv) payments within the Tidewater Affiliated
Group by entities other than Tidewater as part of its cash
management program that may be characterized as dividends
or distributions; or
(g) agreed, whether or not in writing, to do
any of the foregoing.
Section 5.9 Contracts. Each material agreement,
contract or commitment to which any member of the
Tidewater Affiliated Group is a party that would be
required to be filed as an exhibit to a report, schedule,
form, statement or other document filed by Tidewater with
the SEC (each a "Material Contract") has been so filed,
and between the date of the filing of its most recent
Quarterly Report on Form 10-Q and the date of this
Agreement, Tidewater has not entered into any Material
Contract other than this Agreement. Tidewater will file
with the SEC any Material Contract required to be filed
that it enters into between the date of this Agreement and
the Closing Date and will furnish Xxxxxxxx with a copy of
any such Material Contract. No member of the Tidewater
Affiliated Group has breached, nor is there any pending
or, to the Knowledge of Tidewater, threatened, claim that
it has breached, any of the terms or conditions of any of
its Material Contracts, and to the Knowledge of Tidewater,
no other parties to any such Material Contract have
breached any of its terms or conditions. Xxxxxxxx has
been provided with a complete and accurate copy of each
Material Contract entered into prior to the date of this
Agreement.
Section 5.10 Vessels. With respect to each vessel
owned, leased or chartered by any member of the Tidewater
Affiliated Group (the "Tidewater Vessels"): (a) except as
listed on Schedule 5.10, such Tidewater Vessel is lawfully
documented under the flag of the nation or state for such
Tidewater Vessel, (b) such Tidewater Vessel is afloat and
in satisfactory operating condition for charter hire, (c)
such Tidewater Vessel holds in full force and effect all
certificates, licenses, permits and rights required for
operation in the manner vessels of its kind are being
operated in the geographical area in which such Tidewater
Vessel is presently being operated and (d) no event has
occurred and no condition exists that would endanger the
maintenance of the classification of such Tidewater
Vessel, except in each such case as to those Tidewater
Vessels that may be undergoing major repairs,
modifications, and/or document renewals, or are cold-
stacked or held for sale by Tidewater as of the date
hereof or between the date hereof and the Closing Date.
32
Section 5.11 Environmental Compliance. (a) Each
member of the Tidewater Affiliated Group possesses all
necessary licenses, permits and other approvals and
authorizations that are required under, and are, and to
the Knowledge of Tidewater at all times in the past have
been, in compliance with, all Environmental Laws,
including without limitation all Environmental Laws
governing the generation, use, collection, treatment,
storage, transportation, recovery, removal, discharge or
disposal of hazardous substances or wastes, and all
Environmental Laws imposing record-keeping, maintenance,
testing, inspection, notification and reporting
requirements with respect to hazardous substances or
wastes.
(b) Except as set forth on Schedule 5.11(b) or
as otherwise disclosed in a Tidewater SEC Document, no
member of the Tidewater Affiliated Group is, nor has it
been, subject to any administrative or judicial proceeding
pursuant to, or has received any notice of any violation
of, or claim alleging liability under, any Environmental
Laws, and, to the Knowledge of Tidewater, no facts or
circumstances exist that would be likely to result in a
claim, citation or allegation against any member of the
Tidewater Affiliated Group for a violation of, or alleging
liability under, any Environmental Laws that would have a
Material Adverse Effect on Tidewater.
(c) Except as listed on Schedule 5.11(c),
there are no underground tanks of any type (including
tanks storing gasoline, diesel fuel, oil or other
petroleum products) or disposal sites for hazardous
substances, hazardous wastes or any other waste, located
on or under the real estate currently owned, leased or
used by any member of the Tidewater Affiliated Group and
to the Knowledge of Tidewater there were no such disposal
sites located on or under the real estate previously
owned, leased or used by any member of the Tidewater
Affiliated Group on the date of the sale thereof by any
member of the Tidewater Affiliated Group or during the
period of lease for use by any member of the Tidewater
Affiliated Group.
(d) Except in the ordinary course of business,
and in all cases in compliance with Environmental Laws, no
member of the Tidewater Affiliated Group has engaged any
third party to handle, transport or dispose of hazardous
substances or wastes (including for this purpose,
gasoline, diesel fuel, oil or other petroleum products, or
bilge waste) on its behalf, and except as set forth on
Schedule 5.11(b), the disposal by each member of the
Tidewater Affiliated Group of its hazardous substances and
wastes has been in compliance with all Environmental Laws.
Section 5.12 State Takeover Statutes. Assuming
approval by the Xxxxxxxx Board of Directors of this
Agreement referred to in Section 4.15, no state takeover
statute or similar statute or regulation applies or
purports to apply to Tidewater in connection with the
Merger, this Agreement or any of the transactions
described in this Agreement.
Section 5.13 Accounting Matters. No member of the
Tidewater Affiliated Group nor any of its Affiliates has
taken or agreed to take any action that (without giving
effect to any action taken or agreed to be taken by
Xxxxxxxx or any of its Affiliates) would prevent Tidewater
from accounting for the business combination to be
effected by the Merger as a pooling-of-interests. Within
three business days of the execution of this Agreement,
Tidewater will have received letters from its independent
public accountants and the Xxxxxxxx independent public
accountants to the effects that if the Merger were to be
consummated on the date of this Agreement, it would
33
qualify for pooling-of-interests treatment under the
generally accepted accounting principles of the United
States.
Section 5.14 Litigation. Except (i) as disclosed in
a Tidewater SEC Document, (ii) that are not material
individually or in the aggregate, or (iii) as listed on
Schedule 5.14, there are no actions, suits, proceedings,
arbitrations or investigations pending or, to the
Knowledge of Tidewater, threatened, before any court, any
governmental agency or instrumentality or any arbitration
panel, against or affecting any member of the Tidewater
Affiliated Group or any of the directors, officers, or
employees of the foregoing, and to the Knowledge of
Tidewater no facts or circumstances exist that would be
likely to result in the filing of any such action that
would have a Material Adverse Effect on Tidewater. No
member of the Tidewater Affiliated Group is subject to any
currently pending judgment, order or decree entered in any
lawsuit or proceeding.
Section 5.15 Legality of Tidewater Common Stock. The
Tidewater Common Stock to be issued in connection with the
Merger, when issued and delivered in accordance with the
terms hereof, will be duly authorized, validly issued,
fully paid and non-assessable, and free of pre-emptive
rights.
Section 5.16 Statements are True and Correct. None of
the information included in (i) the Registration Statement
to be filed by Tidewater with the SEC in connection with
the Tidewater Common Stock to be issued in the Merger,
(ii) the Proxy Statement to be mailed to the stockholders
of Xxxxxxxx in connection with its stockholders meeting,
and (iii) any other documents to be filed with the SEC or
any other regulatory authority in connection with the
transactions contemplated hereby that has been or will be
supplied by the Tidewater Affiliated Group, will, at the
respective times such documents are filed, and, in the
case of the Registration Statement, when it becomes
effective and, with respect to the Proxy Statement, when
first mailed to the stockholders of Xxxxxxxx, be false or
misleading with respect to any material fact, or omit to
state any material fact necessary in order to make the
statements therein not misleading, or, in the case of the
Proxy Statement or any amendment thereof or supplement
thereto, at the time of the Xxxxxxxx stockholders'
meeting, be false or misleading with respect to any
material fact or omit to state any material fact necessary
to make the statements therein in light of the
circumstances under which they were made not misleading.
All documents that Tidewater is responsible for filing
with the SEC or any other regulatory authority in
connection with the transactions contemplated hereby, will
comply in all material respects with the provisions of
applicable law.
Section 5.17 No Stockholder Vote. No vote of any
class of stockholders of Tidewater is required to approve
this Agreement or the transactions contemplated hereby in
order to comply with the DGCL, Tidewater's Certificate of
Incorporation or By-laws, or the rules and regulations of
the New York Stock Exchange or Pacific Stock Exchange.
Section 5.18 Citizenship. Tidewater is a U.S.
citizen and is authorized to conduct business in the
United States coastwise trade within the meaning of the
Federal Maritime Laws.
Section 5.19 Broker's and Finder's Fee. No agent,
broker, Person or firm acting on behalf of Tidewater is or
will be entitled to any commission or broker's or finder's
34
fee from any of the parties hereto, or from any Affiliate
of the parties hereto, in connection with any of the
transactions contemplated herein.
Section 5.20 Disclosure. (a) No representations or
warranties by Tidewater or Sub in this Agreement and no
statement contained in the schedules or exhibits or in any
certificates to be delivered pursuant to this Agreement,
contains or will contain any untrue statement of material
fact or omits or will omit to state any material fact
necessary, in light of the circumstances under which it
was made, in order to make the statements herein or
therein not misleading.
(b) Xxxxxxxx has been furnished with complete
and correct copies of all agreements, instruments and
documents, together with any amendments or supplements
thereto, set forth on, or underlying a disclosure set
forth on, a Schedule provided by Tidewater. Each of the
Schedules provided by Tidewater is complete and correct.
ARTICLE 6. PRE-CLOSING COVENANTS
Section 6.1 Xxxx-Xxxxx-Xxxxxx; Cooperation and Best
Efforts. (a) Xxxxxxxx and Tidewater shall cooperate in
good faith and take all actions reasonably necessary or
appropriate to file, and expeditiously and diligently
prosecute to a favorable conclusion, the HSR Reports
required to be filed by each of them in connection
herewith with the Federal Trade Commission (the "FTC") and
the Department of Justice (the "DOJ") pursuant to the HSR
Act; provided that Tidewater shall not be required to
accept any conditions that may be imposed by the FTC or
the DOJ in connection with such filings that would require
the divestiture of any Tidewater or Xxxxxxxx assets or
otherwise have a Material Adverse Effect on such party.
(b) Xxxxxxxx and Tidewater agree that from the
date of this Agreement through the Effective Time, neither
party shall enter into any transaction with a third party
or recapitalization that would have the effect of impeding
the ability to obtain HSR Act clearance; provided that (i)
the exercise by Tidewater of options to acquire seven
vessels currently under lease and (ii) the exercise by
Xxxxxxxx of either or both of the Ravensworth Options in
accordance with Section 6.11 shall not be considered a
breach of this covenant.
(c) Each party shall cooperate with the other
and use its reasonable best efforts to (i) receive all
necessary and appropriate consents of third parties to the
transactions contemplated hereunder, (ii) satisfy all
requirements prescribed by law for, and all conditions set
forth in this Agreement to, the consummation of the
Merger, and (iii) effect the Merger in accordance with
this Agreement at the earliest practicable date.
Section 6.2 Registration Statement and Proxy
Statement; Xxxxxxxx Special Meeting. (a) Tidewater will
prepare and file the Registration Statement under the
Securities Act which will include the Proxy Statement
complying with all the requirements of the Securities Act
applicable thereto, for the purpose, among other things,
of registering the Tidewater Common Stock which will be
issued to the holders of Xxxxxxxx Common Stock pursuant to
the Merger. Tidewater shall use its best efforts to cause
the Registration Statement to become effective as soon as
practicable, to qualify the Tidewater Common Stock under
the securities or blue sky laws of such jurisdictions as
may be required and to keep the Registration Statement and
such qualifications current and in effect for so long as
necessary to consummate the transactions contemplated
35
hereby. In addition, Tidewater shall use its best efforts
to cause the Tidewater Common Stock to be issued pursuant
to the Merger to be listed on the New York Stock Exchange
and Pacific Stock Exchange and be fully tradeable except
to the extent any shares of Tidewater Common Stock
received by stockholders of Xxxxxxxx are subject to the
provisions of Rule 145 of the SEC or are restricted under
applicable rules related to tax-free reorganizations and
pooling-of-interest accounting rules.
(b) Each of the parties will cooperate in the
preparation of the Registration Statement and the Proxy
Statement. Each of the parties will as promptly as
practicable after the date hereof furnish all such data
and information relating to it as the other may reasonably
request for the purpose of including such data and
information in the Registration Statement and Proxy
Statement.
(c) Xxxxxxxx shall, as soon as practicable
following effectiveness of the Registration Statement,
take all action necessary under the DGCL and its
Certificate of Incorporation and By-laws to convene a
special meeting of its stockholders (the "Special
Meeting") for the purpose of approving this Agreement.
Xxxxxxxx will, through its Board of Directors, recommend
to its stockholders approval of this Agreement and the
transactions described herein, subject to the terms set
forth in Section 6.5 hereof.
Section 6.3 Conduct of Business By Both Parties Prior
to the Closing Date. During the period from the date of
this Agreement to the Effective Time, Xxxxxxxx and
Tidewater shall each use its reasonable best efforts to
preserve the goodwill of suppliers, customers and others
having business relations with it and to do nothing
knowingly to impair its ability to keep and preserve its
business as it exists on the date of this Agreement.
Without limiting the generality of the foregoing, during
the period from the date of this Agreement to the
Effective Time of the Merger each of Xxxxxxxx and
Tidewater shall not, without the prior written consent of
the other:
(a) declare, set aside, increase or pay any
dividend (including any stock dividends), or declare or
make any distribution on, or directly or indirectly
combine, redeem, reclassify, purchase, or otherwise
acquire, any shares of its capital stock or authorize the
creation or issuance of, or issue, deliver or sell any
additional shares of its capital stock or any securities
or obligations convertible into or exchangeable for its
capital stock or effect any stock split or reverse stock
split or other recapitalization, except (i) for the
declaration and payment by Tidewater of its normal
quarterly cash dividend of $.125 per share of Tidewater
Common Stock, (ii) the issuance of any shares of Tidewater
Common Stock or preferred stock upon the exercise of the
Rights in accordance with the terms of the Tidewater
Stockholder Rights Plan, (iii) the grant of, and the
issuance of any shares upon the exercise of, any stock
options issued pursuant to a Tidewater Disclosed Plan,
provided that any new options granted by Tidewater
pursuant to any such Plan shall not cover more than
500,000 shares; (iv) the acceptance by Tidewater of any
shares in consideration of the exercise of such Tidewater
stock options or in satisfaction of any tax or tax
withholding obligations of the holders of such options,
(v) the issuance of shares of Xxxxxxxx Common Stock
pursuant to the exercise of the Ravensworth Options in
accordance with Section 6.11, (vi) the issuance of any
shares of Xxxxxxxx Common Stock or preferred stock upon
exercise of the rights in accordance with the terms of the
Xxxxxxxx Stockholder Rights Plan, (vii) the issuance of
any shares upon the exercise of the Xxxxxxxx Disclosed
Employee Stock Options, (viii) the issuance of shares of
restricted Xxxxxxxx Common Stock pursuant to Section
36
6.4(j) or (ix) the acceptance by Xxxxxxxx of any shares of
Xxxxxxxx Common Stock in consideration of the exercise of
the Xxxxxxxx Disclosed Employee Stock Options or in
satisfaction of any tax or tax withholding obligations of
the holders of such Xxxxxxxx Disclosed Employee Stock
Options or restricted stock awards of Xxxxxxxx Common
Stock.
(b) amend its certificate of incorporation or
by-laws, or adopt or amend any resolution or agreement
concerning indemnification of its directors, officers,
employees or agents;
(c) pledge or otherwise encumber any shares of
its capital stock, any other voting securities or any
securities convertible into, or any rights, warrants or
options to acquire, any such shares, or any other voting
securities or convertible securities;
(d) commit or omit to do any act which act or
omission would cause a breach of any covenant contained in
this Agreement or would cause any representation or
warranty contained in this Agreement to become untrue, as
if each such representation and warranty were continuously
made from and after the date hereof;
(e) violate any applicable law, statute, rule,
governmental regulation or order that would have a
Material Adverse Effect on such party;
(f) fail to maintain its books, accounts and
records in the usual manner on a basis consistent with
that heretofore employed;
(g) fail to pay, or to make adequate provision
in all material respects for the payment of, all Taxes,
interest payments and penalties due and payable (for all
periods up to the Effective Date, including that portion
of its fiscal year to and including the Effective Date) to
any city, parish, state, the United States, foreign or any
other taxing authority, except those being contested in
good faith by appropriate proceedings and for which
sufficient reserves have been established, or make any
elections with respect to Taxes;
(h) make any material tax election that is
inconsistent with any corresponding election made on a
prior return or settle or compromise any income tax
liability for an amount materially in excess of the
liability therefor that is reflected on the Xxxxxxxx
Financial Statements or Tidewater Financial Statements, as
the case may be;
(i) take any action that would prevent the
accounting for the business combination to be effected by
the Merger as a pooling-of-interests; or
(j) authorize any of, or agree or commit to do
any of, the foregoing actions.
Section 6.4 Conduct of Business By Xxxxxxxx Prior to
the Closing Date. During the period from the date of this
Agreement to the Effective Time, in addition to its
covenants set forth in Section 6.3, each member of the
Xxxxxxxx Consolidated Group shall use its best efforts to
preserve the possession and control of all of its assets
other than those permitted to be disposed of pursuant to
the terms of this Agreement, shall conduct its business
only in the ordinary course consistent with past practice,
and, except as otherwise provided herein, shall not,
without the prior written consent of Tidewater:
37
(a) except as contemplated by Section 4.19(m),
enter into or modify any employment, severance or similar
agreement or arrangement with any director or employee, or
grant any increase in the rate of wages, salaries, bonuses
or other compensation or benefits of any executive officer
or other employee, other than any such increase that is
both in the ordinary course of business consistent with
past practice and in an amount such that, after giving
effect thereto, aggregate employee compensation expense
(considered on an annualized basis) does not exceed 105%
of the aggregate employee compensation expense for
Xxxxxxxx'x fiscal year ending December 31 1995;
(b) enter into any new line of business;
(c) acquire or agree to acquire (i) by merging
or consolidating with, or by purchasing a substantial
portion of the assets of, or by any other manner, any
business or any corporation, partnership, joint venture,
association or other business organization or division
thereof or (ii) any assets that are material, individually
or in the aggregate, to such party and its subsidiaries
taken as a whole, except purchases of inventory in the
ordinary course of business consistent with past practice;
provided that the foregoing language of this Section
6.4(c) shall not be deemed to restrict the ability of
Xxxxxxxx to exercise either or both of the Ravensworth
Options in accordance with Section 6.11;
(d) except as disclosed on Schedule 6.4(d),
sell or otherwise dispose of any Xxxxxxxx Vessel, or,
except for dispositions made in the ordinary course of
business and consistent with past practices, sell, lease,
license, mortgage or otherwise encumber or subject to any
Lien or otherwise dispose of any of its other properties
or assets;
(e) (i) except as disclosed on Schedule
6.4(e), incur any indebtedness for borrowed money,
excluding the obtaining of letters of credit or surety
bonds in the ordinary course of business consistent with
past practices, but including any borrowings under the
existing Xxxxxxxx credit facility with First Interstate
Bank of Texas N.A. (provided that, to the extent Xxxxxxxx
applies cash to reduce any outstanding debt under the term
loan portion of such facility, it shall be permitted to
re-borrow such amount under the revolving line of credit
portion of such facility); or guarantee any such
indebtedness of another Person, issue or sell any debt
securities or warrants or other rights to acquire any debt
securities of such party or any of its subsidiaries,
guarantee any debt securities of another Person, enter
into any "keep well" or other agreement to maintain any
financial condition of another Person or enter into any
arrangement having the economic effect of any of the
foregoing, or (ii) make any loans, advances or capital
contributions to, or investments in, any other Person,
except for the exercise of either or both of the
Ravensworth Options in accordance with Section 6.11;
(f) except as disclosed on Schedule 6.4(f),
make or agree to make any new capital expenditures other
than those made in the ordinary course of business and
consistent with past practices out of available cash,
(excluding the proceeds of borrowings);
(g) approve the declaration or payment of any
dividend or distribution by Ravensworth or Seaboard;
38
(h) except in the ordinary course of business,
place or suffer to exist on any of its assets or
properties any Lien, other than Liens listed on Schedules
4.11(a) or 4.13 and Permitted Liens, or forgive any
material indebtedness owing to it or any claims which it
may have possessed, or waive any right of substantial
value or discharge or satisfy any material noncurrent
liability;
(i) acquire another business or entity, or
sell or otherwise dispose of a material part of its
assets, except in the ordinary course of business
consistent with past practices;
(j) permit any employee or former employee,
officer or director of any member of the Xxxxxxxx
Consolidated Group to become entitled to receive any award
under Xxxxxxxx'x discretionary or other bonus plans except
for (i) cash payments up to $350,000 in the aggregate to
directors, officers and employees as semi-annual director
fees and incentive payments for 1995 performance
consistent with past practice (the "1995 Incentive Cash
Payments"), and (ii) the issuance of an aggregate of
19,310 shares of restricted Xxxxxxxx Common Stock for 1995
performance, provided that, any cash payments or awards of
restricted stock under (i) or (ii) shall not be made prior
to January 2, 1996, and provided further that, if the
Closing Date has not occurred by April 30, 1996, cash
payments may be made to officers and employees as
incentive payments for 1996 performance for the period
from January 1, 1996 through the Closing Date, such
amounts to be prorated and based on the total 1995
Incentive Cash Payments and to otherwise be consistent
with past practice; or
(k) authorize any of, or agree or commit to do
any of, the foregoing actions.
In addition, Xxxxxxxx shall consult with Tidewater with
respect to any action of the type described above proposed
to be taken by a member of the North Sea Group.
Section 6.5 No Solicitations. (a) No member of the
Xxxxxxxx Group shall directly or indirectly, through any
officer, director, employee, representative or agent of
any member of the Xxxxxxxx Group, solicit or encourage the
initiation or submission of any inquiries, proposals or
offers regarding any acquisition, merger, take-over bid,
sale of all or substantially all of the assets of, or
sales of shares of capital stock of Xxxxxxxx, whether or
not in writing and whether or not delivered to the
stockholders of Xxxxxxxx generally (including without
limitation by way of a tender offer), or similar
transactions involving Xxxxxxxx (any of the foregoing
inquiries or proposals being referred to herein as an
"Acquisition Proposal"); provided, however, that nothing
contained in this Agreement shall prevent the Board of
Directors of Xxxxxxxx from referring any third party to
this Section 6.5. Nothing contained in this Section 6.5
or any other provision of this Agreement shall prevent the
Board of Directors of Xxxxxxxx from considering or
negotiating an unsolicited bona fide written Acquisition
Proposal. If the Board of Directors of Xxxxxxxx, after
duly considering advice, written or otherwise, of outside
counsel and financial advisors to Xxxxxxxx, determines in
good faith that it would be consistent with its fiduciary
responsibilities to approve or recommend (and in
connection therewith withdraw or modify its approval or
recommendation of this Agreement, and the transactions
contemplated hereby or thereby) a Superior Proposal (as
defined below), then, notwithstanding any such approval or
recommendation (x) Xxxxxxxx shall not enter into any
agreement with respect to the Superior Proposal and (y)
any other obligation of Xxxxxxxx under this Agreement
shall not be affected, unless this Agreement is terminated
pursuant to Section 9.1(f) hereof prior to or
39
simultaneously with the grant of such approval or the
making of such recommendation and Xxxxxxxx, within three
Business Days following such termination resulting from
such Superior Proposal, pays Tidewater the Termination Fee
(as defined in Section 9.1(f)). As used herein the term
"Superior Proposal" means a bona fide proposal made by a
third party to acquire Xxxxxxxx pursuant to a tender or
exchange offer, a merger, a sale of all or substantially
all of its assets or otherwise that the Board of Directors
determines in its good faith judgment to be more favorable
to Xxxxxxxx'x stockholders than the transactions
contemplated by this Agreement (after considering the
advice, written or otherwise, of Xxxxxxxx'x professional
advisors). In making a determination of whether a
Superior Proposal is more favorable, the Xxxxxxxx Board of
Directors shall consider not only the price offered by the
third party as compared to the total consideration set
forth in this Agreement, but shall also compare the market
liquidity of the Tidewater Common Stock to the liquidity
of the consideration offered by the third party, compare
the tax consequences of the Merger to the tax consequences
of the transaction proposed by the third party, determine
whether the transaction proposed by the third party has
any financing or other conditions or contingencies, and
make any other meaningful comparison of the relative
benefits offered to the Xxxxxxxx stockholders by the
Merger as compared to the transaction proposed by the
third party.
(b) Xxxxxxxx shall immediately notify
Tidewater after receipt of any Acquisition Proposal or any
request for nonpublic information relating to any member
of the Xxxxxxxx Group in connection with an Acquisition
Proposal or for access to the properties, books or records
of any member of the Xxxxxxxx Group that informs the Board
of Directors of any member of the Xxxxxxxx Group that it
is considering making, or has made, an Acquisition
Proposal. To the extent not prohibited by confidentiality
provisions imposed by the offering party, such notice to
Tidewater shall be made orally and in writing and shall
indicate in reasonable detail the identity of the offeror
and the terms and conditions of such proposal, inquiry or
contact.
(c) If the Board of Directors of Xxxxxxxx
receives a request for material nonpublic information by a
Person who makes, or who states in writing that it
intends, subject to satisfactory review of such nonpublic
information, to make, a bona fide Acquisition Proposal,
Xxxxxxxx may, subject to the execution of a
confidentiality agreement substantially similar to that
then in effect between Xxxxxxxx and Tidewater, provide
such Person with access to information regarding Xxxxxxxx.
(d) Nothing contained in this Section 6.5
shall prevent Xxxxxxxx from complying with Rule 14e-2(a)
or Rule 14d-9 promulgated under the Exchange Act, if
applicable, with regard to an Acquisition Proposal made in
the form of a tender offer by a third party.
Section 6.6 Press Releases. Xxxxxxxx and Tidewater
will consult with each other before issuing, and provide
each other the opportunity to review and comment upon, any
press releases or other public statements with respect to
any transactions described in this Agreement, including
the Merger, and shall not issue any such press releases or
make any such public statement prior to such consultation,
except as may be required by applicable law, court process
or by obligations pursuant to a listing agreement with the
Nasdaq National Market or the New York Stock Exchange.
40
Section 6.7 Access to Information and Confidentiality.
(a) Prior to the Closing Date, each of Xxxxxxxx and
Tidewater shall afford to the other party and to the
officers, employees, accountants, counsel, financial
advisors and other representatives of such other party,
reasonable access during normal business hours to their
respective premises, books and records and will furnish to
the other party (i) a copy of each report, schedule,
registration statement and other documents filed by it
during such period pursuant to the requirements of federal
or state securities laws, and (ii) such other information
with respect to its business and properties as such other
party reasonably requests.
(b) Each of Xxxxxxxx and Tidewater will, and
will cause its officers, directors, employees, agents and
representatives to, (i) hold in confidence, unless
compelled to disclose by judicial or administrative
process, or, in the opinion of its counsel, by other
requirements of law, all nonpublic information concerning
the other party furnished in connection with the
transactions contemplated by this Agreement until such
time as such information becomes publicly available
(otherwise than through the wrongful act of such person),
(ii) not release or disclose such information to any other
person, except in connection with this Agreement to its
auditors, attorneys, financial advisors, other consultants
and advisors, and (iii) not use such information for any
competitive or other purpose other than with respect to
its consideration and evaluation of the transactions
contemplated by this Agreement. In the event of
termination of this Agreement for any reason, Xxxxxxxx and
Tidewater will promptly return or destroy all documents
containing nonpublic information so obtained from the
other party and any copies made of such documents and any
summaries, analyses or compilations made therefrom.
Section 6.8 Consultation and Reporting. During the
period from the date of this Agreement to the Closing
Date, each of Xxxxxxxx and Tidewater will, subject to any
applicable legal or contractual restrictions confer on a
regular and frequent basis with the other to report
material operational matters and to report on the general
status of ongoing operations. Each of Xxxxxxxx and
Tidewater will notify the other of any unexpected
emergency or other change in the normal course of its
business or in the operation of its properties and of any
governmental complaints, investigations, adjudicatory
proceedings, or hearings (or communications indicating
that the same may be contemplated) and will keep the other
fully informed of such events and permit its
representatives prompt access to all materials prepared by
or on behalf of such party or served on them, in
connection therewith.
Section 6.9 Update Schedules. Each party hereto will
promptly disclose to the other any information contained
in its representations and warranties and on the related
schedules that, because of an event occurring after the
date hereof, is incomplete or no longer correct; provided,
however, that none of such disclosures will be deemed to
modify, amend or supplement the representations and
warranties of such party, unless the other party consents
to such modification, amendment or supplement in writing.
Section 6.10 Xxxxxxxx Stock Options. The parties
acknowledge and agree that, pursuant to Article XIII of
the Xxxxxxxx 1989 Employee Incentive Plan and Article XIII
of the Xxxxxxxx 1993 Employee Incentive Plan, any of the
Xxxxxxxx Disclosed Employee Stock Options issued under
such plans that remain unexercised as of the Closing Date
shall, in accordance with their terms, become options to
acquire such number of shares of Tidewater Common Stock
that the holder of such unexercised Xxxxxxxx Disclosed
41
Employee Stock Options would have been entitled to receive
upon consummation of the Merger if such holder had
exercised such option immediately prior to, or coincident
with, the Merger. Tidewater agrees to honor the
obligations of Xxxxxxxx under such plans effective as of
the Effective Time.
Section 6.11 Exercise of North Sea Options. The
parties agree and acknowledge that Xxxxxxxx, as an equity
owner of Ravensworth, Seaboard and HOL, owns options to
acquire additional equity interests in Ravensworth,
Seaboard and HOL that expire on various dates. The
parties agree that Xxxxxxxx shall not exercise, modify or
cancel such options without the prior written consent of
Tidewater, provided that Xxxxxxxx shall have the right, on
or after February 29, 1996, to exercise, modify or cancel
either or both of the Ravensworth Options after consulting
with Tidewater, and provided further that from February
29, 1996 until the Closing Date, Xxxxxxxx will not issue
Xxxxxxxx Common Stock as consideration for the exercise of
such options without Tidewater's prior written consent.
In the event the Ravensworth Option that expires on March
31, 1996 is not exercised by such date, thereby triggering
mutual rights on behalf of Xxxxxxxx and the 50.1% owner of
Ravensworth to initiate a sale of Ravensworth, the parties
agree that Xxxxxxxx will not initiate such a sale without
the consent of Tidewater, or take any act with respect to
an offer for Ravensworth upon the initiation of a sale by
the other owner of Ravensworth without consulting with
Tidewater; provided that the failure by Xxxxxxxx to
exercise such Ravensworth Option will not alone be
construed to be an initiation by Xxxxxxxx of such a sale.
Section 6.12 Xxxxxxxx 1995 Form 10-K. (a) Xxxxxxxx
agrees to use its best efforts to prepare and file with
the SEC its annual report on Form 10-K for the fiscal year
ending December 31, 1995 before the Closing Date.
(b) Tidewater agrees to cooperate in such
filing of Xxxxxxxx'x Annual Report on Form 10-K.
Section 6.13 Severance Policy. Xxxxxxxx agrees to
comply with, and Tidewater agrees to honor, the terms of
the severance policy for Xxxxxxxx'x employees that was
adopted by Xxxxxxxx'x Board of Directors on December 14,
1995, substantially in the form set forth on Schedule
6.13.
Section 6.14 Sub Stockholder Approval. Tidewater, as
the sole stockholder of Sub, shall take all action
necessary to effect the necessary stockholder approval by
Sub of this Agreement.
Section 6.15 Employee Indemnification. Xxxxxxxx
shall, at its next Board of Directors meeting but not
later than January 31, 1996, amend that certain resolution
adopted by the Xxxxxxxx Board of Directors on November 19,
1995 to limit its application to the matter disclosed in
the first paragraph of Schedule 4.23(b).
Section 6.16 Change in Control Agreements. Xxxxxxxx
agrees that the four officers of Xxxxxxxx entitled to
payments under those certain Change in Control Agreements
entered into on June 20, 1995, shall not be entitled to
payments under Section 9(b)(iii) of such agreements in
excess of the amounts listed opposite each such officer's
name on Schedule 6.16 provided however that the foregoing
does not limit in any way the obligations of Xxxxxxxx
42
pursuant to the other provisions of the Change in Control
Agreements. Tidewater agrees to cause Surviving
Corporation to honor such agreements in accordance with
their terms.
ARTICLE 7. CLOSING CONDITIONS
Section 7.1 Conditions Applicable to All Parties. The
obligations of each of the parties hereto to effect the
Merger and the other transactions contemplated by this
Agreement are subject to the satisfaction or waiver of the
following conditions at or prior to the Closing:
(a) Registration and Listing Effectiveness;
Stockholder Approval. The Registration Statement shall
have become effective with the SEC (and no stop order
suspending the effectiveness of the Registration Statement
shall have been issued and no proceedings for that purpose
shall have been instituted by the SEC) and the Proxy
Statement included therein shall have been mailed to the
Xxxxxxxx stockholders, the shares of Tidewater Common
Stock to be issued pursuant to the Merger shall have been
approved for listing on the New York Stock Exchange and
the Pacific Stock Exchange, subject to official notice of
issuance, and the required approval of the stockholders of
Xxxxxxxx of this Agreement shall have been obtained at the
Special Meeting.
(b) No Restraining Action. No action, suit,
or proceeding before any court or governmental or
regulatory authority will be pending, no investigation by
any governmental or regulatory authority will have been
commenced, and no action, suit or proceeding by any
governmental or regulatory authority will have been
threatened, against Xxxxxxxx, Tidewater or any of the
principals, officers or directors of any of them, seeking
to restrain, prevent or change the transactions
contemplated hereby or questioning the legality or
validity of any such transactions or seeking damages in
connection with any such transactions.
Section 7.2 Conditions to Tidewater's Obligations.
The obligations of Tidewater to effect the Merger and the
other transactions contemplated by this Agreement are also
subject to the satisfaction or waiver of the following
conditions at or prior to the Closing:
(a) Representations, Warranties and Covenants.
(i) The representations and warranties of Xxxxxxxx in
this Agreement or in any certificate delivered to
Tidewater pursuant hereto as of the date hereof will be
deemed to have been made again at and as of the Closing
Date (without regard to any Schedule updates furnished by
Xxxxxxxx after the date hereof unless consented to by
Tidewater) and will then be true and correct in all
material respects, except to the extent any such
representation or warranty is qualified by materiality or
by reference to the term "Material Adverse Effect" in
which case such representation or warranty shall be true
and correct, and (ii) Xxxxxxxx will have performed and
complied in all material respects with all agreements and
conditions required by this Agreement to be performed or
complied with by Xxxxxxxx prior to or on the Closing Date.
(b) No Material Adverse Change. There shall
not have occurred any event or circumstance resulting in a
Material Adverse Effect with respect to Xxxxxxxx from the
date of the Xxxxxxxx Latest Balance Sheet to the Closing
Date.
43
(c) HSR Act. The waiting periods (and any
extensions thereof) applicable to the Merger under the HSR
Act shall have been terminated or shall have expired and
no condition shall have been imposed on Xxxxxxxx or
Tidewater to obtain such termination that would require
the divestiture of any of either of such party's assets or
otherwise have a Material Adverse Effect on such party.
(d) Consents and Approvals. All governmental
and other third-party consents and approvals, if any,
necessary to permit the consummation of the transactions
contemplated by this Agreement, or to permit the continued
operation of the business of Xxxxxxxx in substantially the
same manner after the Closing Date as before, will have
been received.
(e) Closing Certificate. The receipt by
Tidewater of a certificate executed by the Chief Executive
Officer and Chief Financial Officer of Xxxxxxxx dated the
Closing Date, certifying that the conditions specified in
Section 7.2(a) and (b) hereof have been fulfilled.
(f) Good Standing and Tax Certificates.
Xxxxxxxx will have delivered to Tidewater, each dated as
of a date not earlier than five days prior to the Closing
Date, (i) copies of the certificates of incorporation or
other organizational documents, including all amendments
thereto, certified by the appropriate government official
of each member of the Xxxxxxxx Group, (ii) to the extent
issued by such jurisdiction, certificates from the
appropriate governmental official to the effect that each
member of the Xxxxxxxx Group is in good standing in such
jurisdiction and listing all organizational documents of
the members of the Xxxxxxxx Group on file, (iii) to the
extent issued by such jurisdiction, a certificate from the
appropriate governmental official in each jurisdiction in
which each member of the Xxxxxxxx Group is qualified to do
business to the effect that such member is in good
standing in such jurisdiction and (iv) to the extent
issued by such jurisdiction, certificates as to the tax
status of each member of the Xxxxxxxx Group in its
jurisdiction of organization and each jurisdiction in
which such member is qualified to do business.
(g) Confirmation of Pooling-of-Interests
Availability. The receipt by Tidewater of an opinion or
confirmation thereof of its independent public accountants
and the Xxxxxxxx independent public accountants that the
transactions contemplated hereby will qualify for
pooling-of-interests treatment under the generally
accepted accounting principles of the United States.
(h) Fairness Opinion. Tidewater shall have
received a letter from Xxxxxxx, Xxxxx & Co. dated within
five days prior to the date the Agreement is executed by
Tidewater, in form and substance satisfactory to
Tidewater, to the effect that the aggregate of the Merger
Consideration and Fractional Payments to be paid by
Tidewater is fair to Tidewater and to Tidewater's
stockholders from a financial point of view.
(i) Tax Opinion. Tidewater shall have
received from Jones, Walker, Waechter, Poitevent, Carrere
& Xxxxxxx, L.L.P. an opinion to the effect that the Merger
and the transactions contemplated hereby will constitute a
reorganization under Section 368 of the Code.
(j) Opinion of Counsel. Tidewater shall have
received from Xxxx, Xxxxx & Cate, counsel to Xxxxxxxx, an
opinion, dated as of the Closing Date, to the effect set
44
forth in Exhibit C-1, and from Morris, Nichols, Arsht &
Xxxxxxx, special Delaware counsel to Xxxxxxxx, an opinion,
dated as of the Closing Date, to the effect set forth in
Exhibit C-2.
(k) Xxxxxxxx 1995 Form 10-X. Xxxxxxxx shall
have filed with the SEC its annual report on Form 10-K for
the fiscal year ending December 31, 1995.
Section 7.3 Conditions to Xxxxxxxx'x Obligations. The
obligations of Xxxxxxxx to effect the Merger and the other
transactions contemplated by this Agreement are also
subject to the satisfaction or waiver of the following
conditions at or prior to the Closing:
(a) Representations, Warranties and Covenants.
(i) The representations and warranties of Tidewater in
this Agreement or in any certificate delivered to Xxxxxxxx
pursuant hereto as of the date hereof will be deemed to
have been made again at and as of the Closing Date
(without regard to any Schedule updates furnished by
Tidewater after the date hereof unless consented to by
Xxxxxxxx) and will then be true and correct in all
material respects, except to the extent any such
representation or warranty is qualified by materiality or
by reference to the term "Material Adverse Effect" in
which case such representation or warranty shall be true
and correct, and (ii) Tidewater will have performed and
complied in all material respects with all agreements and
conditions required by this Agreement to be performed or
complied with by Tidewater prior to or on the Closing
Date.
(b) No Material Adverse Change. There shall
not have occurred any event or circumstance resulting in a
Material Adverse Effect with respect to Tidewater from the
date of the Tidewater Latest Balance Sheet to the Closing
Date.
(c) HSR Act. The waiting periods (and any
extensions thereof) applicable to the Merger under the HSR
Act shall have been terminated or shall have expired.
(d) Consents and Approvals. All governmental
and other third-party consents and approvals, if any,
necessary to permit the consummation of the transactions
contemplated by this Agreement will have been received.
(e) Closing Certificate. The receipt by
Xxxxxxxx of a certificate executed by the Chief Executive
Officer and Chief Financial Officer of Tidewater dated the
Closing Date, certifying that the conditions specified in
Section 7.3(a) and (b) hereof have been fulfilled.
(f) Good Standing and Tax Certificates.
Tidewater will have delivered to Xxxxxxxx, each dated as
of a date not earlier than five days prior to the Closing
Date, (i) copies of the certificates of incorporation,
including all amendments thereto, certified by the
appropriate government official, of each member of the
Tidewater Affiliated Group, (ii) certificates from the
appropriate governmental official to the effect that each
member of the Tidewater Affiliated Group is in good
standing in such jurisdiction and listing all charter
documents of such members on file, (iii) a certificate
from the appropriate governmental official in each
jurisdiction in which each member of the Tidewater
Affiliated Group is qualified to do business to the effect
that such member is in good standing in such jurisdiction
and (iv) certificates as to the tax status of each member
of the Tidewater Affiliated Group in its jurisdiction of
organization and each jurisdiction in which such member is
qualified to do business.
45
(g) Confirmation of Pooling-of-Interests
Availability. The receipt by Xxxxxxxx of an opinion or
confirmation thereof of its independent accountants and
the Tidewater independent accountants that the
transactions contemplated hereby will qualify for
pooling-of-interests treatment under the generally
accepted accounting principles of the United States.
(h) Fairness Opinion. Xxxxxxxx shall have
received a letter from Xxxxxxx & Company International
dated within five days prior to the date this Agreement is
executed by Xxxxxxxx and confirmed within five days prior
to the date the Proxy Statement is mailed to the Xxxxxxxx
stockholders, in form and substance satisfactory to
Xxxxxxxx, to the effect that the aggregate of the Merger
Consideration and Fractional Payments to be paid by
Tidewater is fair to Xxxxxxxx'x stockholders from a
financial point of view.
(i) Tax Opinion. The receipt by Xxxxxxxx of
an opinion from Price Waterhouse LLP to the effect that
the Merger and the transactions contemplated hereby will
constitute a reorganization under Section 368 of the Code.
(j) Opinion of Counsel. The receipt by
Xxxxxxxx of opinions from Cliffe X. Xxxxxxx, general
counsel to the Company, Jones, Walker, Waechter,
Poitevent, Carrere & Xxxxxxx, L.L.P., special counsel for
Tidewater, and Xxxxx & Geddes, special Delaware counsel
for Tidewater, dated as of the Closing Date, to the
effects set forth in Exhibits X-0, X-0 and D-3 hereto,
respectively.
(k) Consulting Agreement. Tidewater shall
have executed and delivered a Consulting Agreement in the
form attached hereto as Exhibit E, providing for certain
consulting services to be performed by Xxxxx X. Xxxxxxxx.
(l) Board Representation. Tidewater's Board
of Directors shall have taken such action as is necessary
to appoint Xxxxx X. Xxxxxxxx to that class of the
Tidewater Board of Directors with a term expiring at the
annual meeting of Tidewater's stockholders that next
follows the Closing Date, such appointment to be effective
within two days following the Closing Date.
Section 7.4 Waiver of Conditions. Any condition to a
party's obligation to effect the Merger hereunder may be
waived by that party in writing, other than the conditions
specified in Sections 7.1(a) or (b), the first two lines
of 7.2(c) or 7.3(c).
ARTICLE 8. POST-CLOSING COVENANTS
Section 8.1 Use of Xxxxxxxx Name. Tidewater shall use
its reasonable best efforts (a) to remove the Xxxxxxxx
name and any abbreviation thereof and any associated trade
or service marks from all vessels, real property, owned or
leased, and equipment upon consummation of the Merger
(provided that, to the extent any such vessels or
equipment are owned or operated by the North Sea Group,
Tidewater shall not be deemed to have breached this
covenant if it is prevented from effecting such removal)
and (b) to take all other steps reasonably necessary to
avoid any public use of the Xxxxxxxx name in connection
with the operation of its business following the Closing,
including the removal of the Xxxxxxxx name from the
corporate or other organizational name of the members of
the Xxxxxxxx Group (provided that, with respect to members
of the North Sea Group, Tidewater shall not be deemed to
46
have breached this covenant if it is prevented from
effecting such removal), in each case as soon as
practicable but in no event later than 60 days after the
Closing Date.
Section 8.2 Indemnification of Directors and Officers
of Xxxxxxxx.
(a) From and after the Effective Time of the
Merger, Tidewater agrees to indemnify and hold harmless,
and to cause Surviving Corporation to honor its separate
indemnification obligations to, each person who is an
officer or director of Xxxxxxxx (or a member of the
Xxxxxxxx Group serving at the request of Xxxxxxxx) on the
date of this Agreement or has served as such an officer or
director at any time since January 1, 1993 (together with
those persons discussed in the last sentence of this
subsection, an "Indemnified Person") from and against all
damages, liabilities, judgments and claims (and related
expenses including, but not limited to, attorney's fees
and amounts paid in settlement) based upon or arising from
his or her capacity as an officer or director of Xxxxxxxx
(or a member of the Xxxxxxxx Group serving at the request
of Xxxxxxxx), to the same extent he or she would have been
indemnified under the Certificate of Incorporation or By-
laws of Xxxxxxxx as such documents were in effect on the
date of this Agreement. Tidewater further agrees to honor
the resolution regarding Xxxxxxxx employee indemnification
that is referred to in Section 6.15 (but only to the
extent such resolution has been modified as required by
Section 6.15), to the extent the matter referred to in the
first paragraph of Schedule 4.23(b) has not been resolved
by the Closing Date.
(b) Tidewater shall pay for the insurance
premiums required for any extension of Xxxxxxxx'x D&O
insurance policy following the Closing Date for a
"discovery" period elected under such insurance policy
covering the officers and directors of Xxxxxxxx (or a
member of the Xxxxxxxx Group, serving at the request of
Xxxxxxxx), for a period of six years or shall provide
comparable coverage for the same period under Tidewater's
D&O insurance policy for all directors and officers of
Xxxxxxxx (or a member of the Xxxxxxxx Group, serving at
the request of Xxxxxxxx), covered by Xxxxxxxx'x policy.
(c) The rights granted to the Indemnified
Persons hereby shall be contractual rights inuring to the
benefit of all Indemnified Persons and shall survive this
Agreement and any merger, consolidation or reorganization
of Tidewater.
(d) The rights to indemnification granted by
this Section 8.2 are subject to the following limitations:
(i) the total aggregate indemnification to be provided by
Tidewater and/or Surviving Corporation pursuant to this
Section 8.2 will not exceed, as to all of the Indemnified
Persons described herein as a group, the sum of $50
million, and Tidewater shall have no responsibility to any
Indemnified Person for the manner in which such sum is
allocated among that group (but the Indemnified Persons
may seek reallocation among themselves); (ii) amounts
otherwise required to be paid by Tidewater to an
Indemnified Person pursuant to this Section 8.2 shall be
reduced by any amounts that such Indemnified Person has
recovered by virtue of the claim for which indemnification
is sought and Tidewater shall be reimbursed for any
amounts paid by Tidewater that such Indemnified Person
subsequently recovers by virtue of such claim; (iii) no
Indemnified Person shall be entitled to indemnification
for any claim made or threatened prior to the Closing Date
of which such Indemnified Person or Xxxxxxxx was aware but
did not promptly disclose to Tidewater prior to the
execution of this Agreement, if the claim or threatened
47
claim was known on or before such time, or prior to the
Closing Date, if such claim became known after execution
of this Agreement, provided that all matters disclosed in
the Schedules to this Agreement shall be deemed to have
been disclosed to Tidewater by all of such Indemnified
Persons for purposes of this Section 8.2(d); (iv) any
claim for indemnification pursuant to this Section 8.2
must be submitted in writing to the Chief Executive
Officer of Tidewater promptly upon such Indemnified Person
becoming aware of such claim and, in no event, more than
ten years from the Effective Date, provided that any such
failure to advise promptly has a prejudicial effect on
Tidewater; and (v) an Indemnified Person shall not settle
any claim for which indemnification is provided herein
without the prior written consent of Tidewater.
(e) Tidewater agrees that the indemnification
limit set forth in subparagraph (d)(i) above shall not
apply to any damages, liabilities, judgments and claims
(and related expenses, including but not limited to
attorney's fees and amounts paid in settlement) insofar as
they arise out of or are based upon any misstatement by
Tidewater of a material fact in the Registration Statement
or are based upon an omission by Tidewater of a material
fact required to be stated therein, or necessary in order
to make a statement therein not misleading unless such
statement or omission was based upon information supplied
by Xxxxxxxx for inclusion therein.
Section 8.3 Publication of Post-Merger Results.
Tidewater shall use its reasonable best efforts to cause
financial results covering at least thirty days of post-
Merger combined operations to be published as soon as
practicable after the passage of such thirty day period.
Section 8.4 Employee Benefits. Following the
consummation of the Merger, Tidewater shall arrange to
make generally available to the employees of Xxxxxxxx the
benefits listed on Schedule 8.4 in accordance with the
terms of such benefit plans, policies or arrangements,
provided that this covenant shall not prohibit Tidewater
from modifying or rescinding such benefits thereafter to
the extent such modification or rescission is generally
applicable to Tidewater employees.
Section 8.5 Registration Rights. Tidewater shall use
its reasonable best efforts to cause a Registration
Statement on Form S-8 to be filed with the SEC covering
the shares of Tidewater Common Stock to be issued upon
exercise of the Xxxxxxxx Disclosed Employee Stock Options
(provided that no representation is made by Tidewater that
any such Form S-8 Registration Statement will in all cases
be available to permit resales of Tidewater Common Stock),
or shall provide the holder of such options with piggyback
registration rights for such shares.
ARTICLE 9. TERMINATION
Section 9.1 Termination. This Agreement may be
terminated and the Merger contemplated herein abandoned at
any time before the Effective Time, whether before or
after approval by the stockholders of Xxxxxxxx as follows:
(a) Mutual Consent. By the mutual consent of
the Boards of Directors of Xxxxxxxx and Tidewater.
48
(b) Material Breach. By the Board of
Directors of either Xxxxxxxx or Tidewater if there has
been a material breach by the other of any representation
or warranty contained in this Agreement or of any covenant
contained in this Agreement, which in either case cannot
be, or has not been, cured within 15 days after written
notice of such breach is given to the party committing
such breach, provided that the right to effect such cure
shall not extend beyond the date set forth in subparagraph
(c) below.
(c) Abandonment. By the Board of Directors of
either Xxxxxxxx or Tidewater if (i) all conditions to
Closing required by Article 7 hereof have not been met by
or waived by November 20, 1996 (the "Termination Date"),
(ii) any such condition cannot be met by such date and has
not been waived by each party in whose favor such
condition inures, or (iii) the Merger has not occurred by
such date; provided, however, that neither Xxxxxxxx nor
Tidewater shall be entitled to terminate this Agreement
pursuant to this subparagraph (c) if such party is in
willful and material violation of any of its
representations, warranties or covenants in this
Agreement.
(d) Lack of Approval. By the Board of
Directors of either Xxxxxxxx or Tidewater, if any required
approval of the stockholders of Xxxxxxxx shall not have
been obtained by reason of the failure to obtain the
required vote at the Special Meeting of Xxxxxxxx
stockholders or at any adjournment thereof.
(e) Government Action. If any governmental
authority shall have issued an order, decree or ruling or
taken any other action permanently enjoining, restraining
or otherwise prohibiting the Merger and such order,
decree, ruling or other action shall have become final and
nonappealable.
(f) Termination Fee. Xxxxxxxx'x Board of
Directors may terminate this Agreement in accordance with
Section 6.5 hereof, provided that as a condition to
exercising its right to terminate this Agreement under
this Section 9.1(f), Xxxxxxxx shall give prior written
confirmation to Tidewater of its obligation to pay cash in
the amount of $6 million (the "Termination Fee"), no later
than the third business day following termination, and
shall thereafter pay such amount within such period.
(g) Tidewater Stock Price. By the Board of
Directors of either Xxxxxxxx or Tidewater if the Exchange
Ratio, as adjusted, would be less than .60 or greater than
.74.
Section 9.2 Effect of Termination. Upon termination
of this Agreement pursuant to this Article 9, this
Agreement shall be void and of no effect, other than the
obligation to pay the Termination Fee referred to in
Section 9.1(f), if applicable, and shall result in no
obligation of or liability to any party or their
respective directors, officers, employees, agents or
shareholders, unless such termination was the result of an
intentional breach of any representation, warranty or
covenant in this Agreement in which case the party who
breached the representation, warranty or covenant shall be
liable to the other party for damages, and all costs and
expenses incurred in connection with the preparation,
negotiation, execution and performance of this Agreement.
49
ARTICLE 10. MISCELLANEOUS
Section 10.1 Notices. All notices hereunder must be
in writing and will be deemed to have been duly given upon
receipt of hand delivery; certified or registered mail,
return receipt requested; or telecopy transmission with
confirmation of receipt:
(a) If to Tidewater:
Tidewater Inc.
Tidewater Place
0000 Xxxxx Xxxxxx, Xxxxx 0000
Xxx Xxxxxxx, Xxxxxxxxx 00000-0000
Attention: Xxxxxxx X. X'Xxxxxx
with a copy to: Cliffe X. Xxxxxxx
and to:
Jones, Walker, Waechter, Poitevent,
Carrere & Xxxxxxx, L.L.P.
000 Xx. Xxxxxxx Xxxxxx
Xxxxx 0000
Xxx Xxxxxxx, XX 00000
Attention: Xxxxxx X. Xxxxx
(b) If to Xxxxxxxx:
Xxxxxxxx Offshore Services, Inc.
0000 Xxxxxxxxxx Xxxxx
Xxxxxxxxx, Xxxxx 00000
Attention: Xxxxx X. Xxxxxxxx
with a copy to:
Xxxx, Xxxxx & Xxxx
First City Tower
0000 Xxxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxx 00000-0000
Attention: R. Xxxxx Xxxxxx, Xx.
Such names and addresses may be changed by written notice
to each person listed above.
Section 10.2 Governing Law. This Agreement shall be
governed by, construed and interpreted in accordance with
the laws of the State of Delaware, regardless of the laws
that might otherwise govern under applicable principles of
conflicts of laws thereof.
50
Section 10.3 Counterparts. This Agreement may be
executed in counterparts, each of which will be deemed an
original but all of which together will constitute one and
the same instrument.
Section 10.4 Interpretation; Schedules. (a) When a
reference is made in this Agreement to a Section, Exhibit
or Schedule, such reference shall be to a Section of, or
an Exhibit or Schedule to, this Agreement unless otherwise
indicated. The table of contents and headings contained
in this Agreement are for reference purposes only and
shall not affect in any way the meaning or interpretation
of this Agreement. Whenever the words "include,"
"includes" or "including" are used in this Agreement, they
shall be deemed to be followed by the words "without
limitation."
(b) The information set forth in the Schedules
to this Agreement is qualified in its entirety by
reference to the specific provisions of this Agreement,
and is not intended to constitute, and shall not be
construed as constituting, separate representations or
warranties of the party to which such Schedules relate
except as and to the extent provided in this Agreement.
Inclusion of information in the Schedules shall not be
construed as an admission that such information is
material for purposes of the specific provisions of this
Agreement to which such information relates. Information
included in the Schedules that is not required to be so
included under the specific provisions of this Agreement
shall be deemed to be included for informational purposes
only and information of a similar nature need not be
included, at the discretion of the party providing such
information. Any information disclosed by a party in any
Schedule shall be deemed to be disclosed in all the
Schedules of such party and for all purposes under this
Agreement to the extent the specific provisions of this
Agreement require such disclosure.
Section 10.5 Entire Agreement; Severability. (a)
This Agreement, including the Exhibits and Schedules
hereto, embodies the entire agreement and understanding of
the parties hereto in respect of the subject matter
contained herein. This Agreement supersedes all prior
agreements and understandings (whether written or oral)
between the parties with respect to such subject matter.
(b) If any provision of this Agreement is
determined to be invalid or unenforceable, in whole or in
part, it is the parties' intention that such determination
will not be held to affect the validity or enforceability
of any other provision of this Agreement, which provisions
will otherwise remain in full force and effect.
Section 10.6 Amendment and Modification. This
Agreement may be amended or modified only by written
agreement of the parties hereto. This Agreement may be
amended by the parties at any time before or after any
required approval of matters presented in connection with
the Merger by the stockholders of Xxxxxxxx; provided,
however, that after any such approval, there shall be made
no amendment that by law requires further approval by such
stockholders without the further approval of such
stockholders.
Section 10.7 Extension; Waiver. At any time prior to
the Effective Time of the Merger, the parties may (a)
extend the time for the performance of any of the
obligations or other acts of the other parties, (b) waive
any inaccuracies in the representations and warranties
contained in this Agreement or in any document delivered
pursuant to this Agreement or (c) waive compliance with
51
any of the agreements or conditions contained in this
Agreement except for Sections 7.1(a) or (b), the first two
lines of 7.2(c) and 7.3(c). The failure of a party to
insist upon strict adherence to any term of this Agreement
on any occasion shall not be considered a waiver or
deprive that party of the right thereafter to insist upon
strict adherence to that term or any other term of this
Agreement. No waiver of any breach of this Agreement
shall be held to constitute a waiver of any other or
subsequent breach. Any waiver must be in writing.
Section 10.8 Binding Effect; Benefits. This Agreement
will inure to the benefit of and be binding upon the
parties hereto and their respective successors and
assigns. Nothing in this Agreement, express or implied,
is intended to confer on any Person other than the parties
hereto and their respective successors and assigns (and,
to the extent provided in Section 8.2, the Indemnified
Persons and their successors and assigns) any rights,
remedies, obligations or liabilities under or by reason of
this Agreement.
Section 10.9 Assignability. This Agreement is not
assignable by any party hereto without the prior written
consent of the other parties.
Section 10.10 Expenses. Each of the parties hereto
shall pay all of its own expenses relating to the
transactions contemplated by this Agreement, including
without limitation the fees and expenses of its own
financial, legal and tax advisors.
Section 10.11 Gender and Certain Definitions. All
words used herein, regardless of the number and gender
specifically used, shall be deemed and construed to
include any other number, singular or plural, and any
other gender, masculine, feminine or neuter, as the
context requires.
Section 10.12 Non-Survival of Representations and
Warranties; Remedies. None of the representations and
warranties in this Agreement or in any instrument
delivered pursuant hereto shall survive the consummation
of the Merger. Each party hereby agrees that its sole
right and remedy with respect to any breach of a
representation or a warranty by the other party shall be
to not consummate the transactions described herein if
such breach results in the nonsatisfaction of a condition
set forth in Section 7.2(a) or 7.3(a) hereof; provided,
however, that the foregoing shall not be deemed to be a
waiver of any claim for intentional breach of a
representation, warranty or covenant of this Agreement or
for fraud.
52
IN WITNESS WHEREOF, the parties hereto have duly
executed this Agreement as of the date first written
above.
TIDEWATER INC.
By: /s/ Xxxxxxx X. X'Xxxxxx
________________________
Xxxxxxx X. X'Xxxxxx
Chairman, President and
Chief Executive Officer
TIDEWATER EXPANSION, INC.
By: /s/ Xxxxxxx X. X'Xxxxxx
_______________________
President
XXXXXXXX OFFSHORE SERVICES, INC.
By: /s/ Xxxxx X. Xxxxxxxx
_______________________
Xxxxx X. Xxxxxxxx
Chairman, President and
Chief Executive Officer
