EXHIBIT 2.9
AMENDMENT NO. 6 TO PURCHASE AGREEMENT
THIS AMENDMENT NO. 6 TO PURCHASE AGREEMENT (this "Amendment") is made and
entered into as of February 4, 2005 by and between XXXXXXX MARINE SERVICES,
INC., a Delaware corporation ("Purchaser"), and NORTHLAND FUEL LLC, a Delaware
limited liability company ("Northland Fuel"), YUKON FUEL COMPANY, an Alaska
corporation ("YFC"), and NORTHLAND VESSEL LEASING COMPANY LLC, a Delaware
limited liability company ("NVLC"; collectively with Northland Fuel and YFC,
"Sellers"). Purchaser and Sellers are sometimes referred to herein collectively
as the "Parties" and individually as a "Party."
RECITALS
WHEREAS, Purchaser and Sellers are parties to a Purchase Agreement, dated
as of July 9, 2004, as amended by Amendment No. 1 to Purchase Agreement, dated
as of October 13, 2004, Amendment No. 2 to Purchase Agreement, dated as of
November 22, 2004, Amendment No. 3 to Purchase Agreement, dated as of January
14, 2005, Amendment No. 4 to Purchase Agreement, dated as of January 21, 2005,
and Amendment No. 5 to Purchase Agreement, dated as of January 28, 2005 (the
"Purchase Agreement"; terms defined in the Purchase Agreement and not otherwise
defined herein are being used herein as therein defined), pursuant to which
Purchaser will purchase from Sellers the fuel distribution business of Northland
Fuel and its subsidiaries; and
WHEREAS, Purchaser and Sellers have agreed, pursuant to Section 13.9 of
the Purchase Agreement, to amend the Purchase Agreement on the terms provided
herein.
NOW, THEREFORE, in consideration of the foregoing and other good and
valuable consideration, the receipt of which is hereby acknowledged, the Parties
agree as follows:
Section 1. Amendment. The Purchase Agreement is hereby amended as follows:
(a) Section 5.1(a)(iv)(A) is hereby amended in its entirety to read as
follows: "make or offer to make any acquisition of any interest in any assets or
securities of any Person or Persons (whether by merger, stock purchase, asset
purchase, lease, license or otherwise) for consideration in excess of $250,000
in the aggregate".
(b) Section 5.1(a)(viii) is hereby amended by adding the words "or Persons
in an amount greater than $250,000 in the aggregate" at the end of such Section
after the word "Person".
(c) Section 5.4 is hereby amended by amending and restating such Section
in its entirety as follows:
"5.4 Exclusivity. Notwithstanding this Agreement, Sellers and their
respective Affiliates, directors, officers, employees, agents and
advisors may engage in discussions and negotiations and enter into
confidentiality and other similar agreements with any Person
contemplating or providing for any merger, acquisition, purchase or
sale of all or any material part of YFC's or SOG's assets or the
NVLC Vessels or any of the capital stock of YFC or SOG or other
business combination or change in control of either YFC or SOG (an
"Alternative Transaction"); provided, that unless this Agreement has
been terminated in accordance with Article XII, Sellers shall not,
and shall not permit any of their Affiliates to, consummate an
Alternative Transaction; and, provided further that Sellers shall,
and shall permit their Affiliates, directors, officers, employees,
agents and advisors to, furnish only limited due diligence to any
Person for purposes of an Alternative Transaction.
(d) Section 12.1(a)(viii) is hereby amended by amending and restating such
Section in its entirety as follows:
"(viii) by Purchaser or Sellers if the Closing shall not have
occurred on or before September 30, 2005;"
(e) Section 12.1(a) is hereby amended by adding new subsections (ix)
through (xi) at the end of such Section as follows:
"(ix) by Purchaser or Sellers, upon notice to the other within five
(5) Business Days of the issuance of such schedule, if the Alaska
Supreme Court schedules any requested oral argument in the appeal
related to the Consent Decree proceedings for a date later than
April 29, 2005;
(x) by Purchaser or Sellers, upon notice to the other within five
(5) Business Days of such date, if the Alaska Supreme Court fails to
issue a ruling in the appeal related to the Consent Decree
proceedings by July 31, 2005; or
(xi) by Sellers if any court (or Person appointed or designated by a
court) requires any Seller or SOG or the Alaska AG to produce to any
Person documents or information that Sellers believe is confidential
or competitively sensitive, other than pursuant to a protective
order or other agreement(s) in form and substance satisfactory to
Sellers."
Section 2. Effective Date; No Implied Amendments. Each of the Parties
agrees that the amendment to the Purchase Agreement contained herein shall be
effective upon execution of this Amendment by each Party. Except as specifically
amended by this Amendment, the Purchase Agreement shall remain in full force and
effect in accordance with its respective terms and is hereby ratified and
confirmed. This Amendment shall not be deemed to constitute a waiver of, or
consent to, or a modification or amendment of, any other provision of the
Purchase Agreement except as expressly provided herein or to prejudice any other
right or rights which
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any Party may now have or may have in the future under or in connection with the
Purchase Agreement. This Amendment shall not constitute an agreement or
obligation of any Party to consent to, waive, modify or amend any other term,
condition, subsection or section of the Purchase Agreement.
Section 3. Benefit of the Agreement. This Amendment shall be binding upon
and inure to the benefit of the Parties and their respective successors and
permitted assigns. This Amendment shall not be construed so as to confer any
right, remedy or benefit upon any Person, other than the Parties and their
respective successors and permitted assigns.
Section 4. Headings. The headings used in this Amendment are for
convenience of reference only and shall not be deemed to limit, characterize or
in any way affect the interpretation of any provision of this Amendment.
Section 5. GOVERNING LAW. THIS AMENDMENT SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE INTERNAL LAWS OF THE STATE OF NEW YORK WITHOUT
REGARD TO ITS CONFLICT OF LAW PRINCIPLES.
Section 6. Counterparts. This Amendment may be executed in counterparts,
each of which shall be deemed an original, but all of which together shall
constitute one and the same instrument.
Section 7. References to Agreement. On and after the date hereof, each
reference in the Purchase Agreement to "this Agreement," "hereunder," "hereof"
or words of like import referring to the Purchase Agreement shall mean the
Purchase Agreement as amended by this Amendment.
[signature page follows]
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IN WITNESS WHEREOF, the Parties have executed this Amendment No. 6 to
Purchase Agreement as of the date first written above.
XXXXXXX MARINE SERVICES, INC.
By: /s/ Xxxxxxx X. Xxxxxx
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Name: Xxxxxxx X. Xxxxxx
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Title: Sr VP and General Counsel
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NORTHLAND FUEL LLC
By: /s/ Xxxx Xxxxx
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Name: Xxxx Xxxxx
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Title: V.P. - Assist. Sec.
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YUKON FUEL COMPANY
By: /s/ Xxxx Xxxxx
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Name: Xxxx Xxxxx
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Title: President
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NORTHLAND VESSEL LEASING COMPANY LLC
By: /s/ Xxxx Xxxxx
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Name: Xxxx Xxxxx
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Title: Senior V.P. - Assist. Sec.
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