This Agreement is made the
BETWEEN:
(1) HVIDE MARINE INCORPORATED of Fort Lauderdale, Florida, United States of
America (hereinafter called "the Buyers") and
(2) CARE OFFSHORE INC. of 00 Xxxxx Xxxxxx, Xxxxxxxx, Xxxxxxx (hereinafter
called "COI") for itself as Bareboat Charterer with purchase option on the
Vessels numbered 16 to 29 in Schedule A and as purchaser of the Vessels
numbered 32 and 33 in Schedule A and as agents for the Owners numbered 1 -
15 in Schedule A (hereinafter called "the Owners") and as agent for Care
Inc. as the Bareboat Charterers of the Vessels numbered 30 and 31 in
Schedule A (hereinafter called "Care Inc."). COI, Care Inc. and the Owners
are hereinafter together called "the Sellers".
WHEREAS:
(1) The Owners are the owners of the St Xxxxxxx and the Grenadines, or
Cypriot flag vessel listed against their name in Schedule A ("the Owned
Vessels").
(2) COI is the Bareboat Charterer of each of the Vessels listed against its
name in Schedule A (the "Bareboat Chartered Vessels") and currently has
the legal right to acquire title to each such Vessel subject to the
terms of the Bareboat Charterer's purchase options and are presently
negotiating the purchase of MV "DEA SUPPLIER" Bahamian flag DNV 09985
to be renamed MV "RED XXXXX" and THE "REM CONTEST" BV No 922Y74 to be
renamed MV "RED CORMORANT" ("the New Vessels").
(3) Care Inc. is the Bareboat Charterer of each of the Vessels listed
against its name in Schedule A and currently has the legal right to
acquire title to each such Vessel subject to the terms of the Bareboat
Charter purchase option.
(4) The Owned Vessels, the Bareboat Chartered Vessels and the New Vessels
are hereinafter called "the Vessels".
(5) COI and Care Inc. wish to exercise its purchase options and COI, Care
Inc. and the Owners wish to sell the Vessels owned by the Owners and
bareboat chartered by COI or to be owned by COI and Care Inc.
(hereinafter called "the Vessels") to the Buyers and the Buyers wish to
purchase the Vessels upon the terms and conditions as hereinafter
appear.
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(6) Sosema S.A. is at the date hereof the manager of the Vessels on behalf
of the Owners COI and Care Inc.
IT IS HEREBY AGREED:
1. SUBJECT
This Agreement is subject to the Buyers carrying out a reasonable
investigation of the chartering, crewing, management agency arrangements
class records and outstanding tenders affecting the Vessels and such
other enquiries in relation to the Vessels as the Buyers consider
appropriate.
In the event of the Buyers not being satisfied with any aspect of their
enquiries and investigation they shall give full details to the Sellers.
The Buyers shall confirm in writing or by fax their satisfaction of this
condition by 28 November 1997. Such confirmation shall be deemed to have
been given upon the expiration of 28 November 1997 if no matter of
concern substantially affecting the value of the transaction has been
specified to the Sellers.
2. MEMORANDA OF AGREEMENT
Concurrently with the signing of this Agreement, the Buyers shall sign
Memoranda of Agreement with COI, Care Inc. and each of the Owners with
respect to each of the Vessels. The Memorandum of Agreement for the New
Vessels shall be subject to acquisition by COI or their nominee.
The Buyers shall acquire no other assets or property, including any
goodwill, tangibles or contractual rights of the Sellers, land base
facilities, employees, distribution systems, customers, operating rights
or production techniques of the Sellers save as set out herein and in
each Memorandum of Agreement save that on delivery of each Vessel the
Sellers shall deliver to the Buyers the Vessel's technical manuals.
3. PURCHASE PRICE
In consideration for the transfer of title to and delivery of the
Vessels, the Buyers shall pay to the Sellers in aggregate the sum of
US$240,000,000 in cash and a number of shares of the common stock of the
Buyers fully paid and non-assessable, class 'A' Common Stock par value
US$0.001 per share ("the Common Stock") having a market value of
US$25,000,000. The cash and Common Stock will be apportioned between the
Sellers as set out in Schedule A. For the purpose of this Agreement, the
market value of the Common Stock shall mean the closing price of the
Common Stock on the NASDAQ
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National Market on the trading day immediately preceding the
announcement of the execution of this Agreement.
4. DEFINITE SALE
Upon signing this Agreement each Memorandum of Agreement for the sale of
each Vessel will be final and binding in accordance with the terms set
out in each Memorandum of Agreement with the exception of those for the
New Vessels.
5. PROVISION OF INFORMATION
Prior to and after delivery of each Vessel, the Sellers will furnish the
Buyers on a timely basis such information concerning each Vessel and its
operation as the Buyers may reasonably request, with the exception of
the beneficial ownership of the Sellers' shares. Prior to and after the
delivery of each Vessel the Sellers will furnish the Buyers on a timely
basis all financial information for the current year as Buyers may
reasonably request including the right to conduct at the expense of
Buyers any independent audit of the operating results for the current
year. The Buyers agree that they will hold in complete confidence all
information and any documents obtained as a result of this investigation
and information supplied by the Sellers and in the event of this
Agreement being terminated, the Buyers agree that all documents received
by the Buyers shall be promptly returned to the Sellers. All documents
and information provided by the Sellers shall remain the property of the
Sellers and shall not be copied distributed or shown to any third party
or used by the Buyers other than in connection with their investigation
as provided in this clause. The Sellers will not unreasonably withhold
consent to the disclosure of any information to any governmental
authority or in connection with its financing of the transaction
contemplated by this Agreement. The completion or non completion of any
audit shall not affect this Agreement or the Memoranda of Agreement in
any way. Prior to the Closing Date, the information shall be supplied by
the Sellers to the Buyers without charge. After the Closing Date, the
Buyers will reimburse the Sellers for all costs and expenses incurred in
supplying historical financial information requested.
6. CARE WARRANTIES
COI warrants that:
6.1 the details and facts described in Recitals (1), (2) and (3) of this
Agreement are true, complete and accurate;
6.2 the Sellers are corporations duly incorporated, validly existing and in
good standing under the laws of their respective jurisdictions of
incorporation and the Sellers have all requisite power and authority to
execute and deliver this Agreement and the other agreements,
certificates and instruments contemplated hereby.
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6.3 The execution, delivery and performance of this Agreement and the other
agreements, certificates and instruments contemplated hereby and the
consummation of the transactions contemplated hereby have been duly
authorised and approved by all requisite corporate action on the part of
the Sellers. This Agreement and, when executed and delivered, each other
agreement, certificate and instrument required to be executed has been or
will be duly executed and delivered by the Sellers constitutes or will
constitute the legal, valid and binding obligations of the Sellers
enforceable against them in accordance with the respective terms.
6.4 Neither the execution, delivery or performance by the Sellers of this
Agreement nor the consummation of the transaction contemplated hereby will
violate or contravene the Sellers' Incorporation documents or any
judgement, decree, order or award of any court or other governmental agency
or any law, rule or regulation applicable to the Sellers or any of their
properties or asset or conflict with, result in a breach of or constitute a
default under, any agreement, instrument or contractual obligation (other
than the Charters entered into by the Sellers) to which the Sellers are a
party or by which they or their properties are bound.
6.5
(i) Schedule B Part I lists the employment contracts, copies of
which have been given to the Buyers;
(ii) Schedule B part II lists the bareboat charter contracts,
copies of which have been given to the Buyers.
6.6 Schedule C contains, the weekly summaries of contract bids with respect
to each of the Vessels prepared by the Vessel's managers from 2 July
1997.
6.7 Neither the execution, delivery or performance of this Agreement nor
the consummation of the transactions contemplated hereby will result in
any liability to Buyers or their affiliates under any pension,
retirement or other employee benefit plan relating to any person
employed as a member of the crew of any of the Vessels or otherwise
arising out of the employment of any such person prior to the delivery
of the Vessel on which such person is employed.
6.8 The Sellers have disclosed to the Buyers details of all litigation in
which they are engaged relevant to the transaction Contemplated by this
Agreement and have disclosed all commercial arrangements with sponsors,
brokers and agents.
6.9 There is no pending litigation or claim known to the Sellers, the
outcome of which could have a materially adverse effect upon the
current employment of the Vessels or their continued operation in the
service in which they are currently being operated.
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6.10 No kickbacks or bribes have been paid to customers suppliers or
government officials, in order to obtain the current charters for any
of the Vessels, and, to the best of the Sellers' knowledge, no such
payment is required for the renewal of any such charter.
6.11 COI shall indemnify Buyers against any direct but not indirect loss,
damages or liability resulting from the breach of any of the warranties
contained in Clause 6.
7. BUYERS' WARRANTIES
The Buyers warrant that:
7.1 The execution, delivery and performance of this Agreement and the other
agreements, certificates and instruments contemplated hereby and
thereby and the consummation of the transactions contemplated hereby
and thereby have been duly authorised and approved by all requisite
corporate action of the Buyers. This Agreement constitutes the legal,
valid and binding obligation of the Buyers enforceable against them in
accordance with its terms.
7.2 On the Closing Date (as defined in the Memoranda of Agreement) the
issuance, sale and delivery of the Common Stock of the Buyers to the
Sellers or their nominee shall then have been duly and unconditionally
authorised by all necessary corporate action on the part of the Buyer,
and such Common Stock when so issued, sold and delivered in accordance
with the provisions of this Agreement, will be duly authorised, validly
issued, fully paid and non-assessable shares of Buyers' Common Stock.
7.3 Neither the execution, delivery or performance by Buyers of this
Agreement nor the consummation of the transactions contemplated hereby
will violate any judgement, decree, order or award of any court or
other governmental agency or any law, rule or regulation applicable to
Buyers or their property or assets or conflict with, result in a breach
of or constitute a default under, any contractual obligation of Buyers.
7.4. The Buyers are a corporation duly incorporated, validly existing and in
good standing under the laws of the State of Florida and have all
requisite corporate power to execute, deliver and perform their
obligations under this Agreement and the other agreements, certificates
and other instruments contemplated hereby and thereby.
7.5 The Buyers have and will have on the dates of delivery of each of the
Vessels the financial resources to enable them to meet their
obligations under this Agreement and each of the Memoranda of
Agreement.
7.6 The Buyers will provide the Sellers with a copy of their executed loan
agreement entered into with the Bank of Boston.
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7.7 The Buyers shall indemnify the Sellers against any direct but not
indirect loss, damages or liability resulting from the breach of any of
the warranties contained in Clause 7.
8. REGISTRATION RIGHTS AGREEMENT
On or before the Closing Date, the Buyers shall execute and deliver to
COI a Registration Rights Agreement substantially in the form of the
draft annexed hereto as Schedule D in favour of each person or
corporation receiving any of the shares of the Buyers' Common Stock
referred to in Clause 3.
9. MANAGEMENT/NON-COMPETITION
On or before the Closing Date, the Buyers shall enter into a Management
Agreement with Sosema S.A. for a duration of 6 months in respect of all
of the Vessels. Thereafter for all or some of the Vessels the Buyers
may extend the management for 6 monthly periods up to a total of 3
years upon giving 90 days prior written notice to Sosema S.A. Sosema
S.A. shall not be required at any time to manage less than 80% of the
acquired Vessels on behalf of the Buyers and COI and the Buyers shall
enter into a Non-Competition Agreement. On or before the Closing Date
Xx Xxxxxxxx Xxx will sign a Non-Competition Agreement. The
Non-Competition Agreement between COI and the Buyer shall not apply:
(i) to any Vessel during such time as the Sellers are the Owners
or Bareboat Charterers of such Vessel;
(ii) in relation to any charter being completed by Sellers pursuant
to Clause 23 of the Memorandum of Agreement.
10. FEES AND EXPENSES
Buyers and COI shall each pay their own out-of-pocket fees and
expenses, including, without limitation, all legal, accounting,
advisory and other fees and expenses, arising in connection with any
transactions contemplated by this Agreement. The Buyers shall be liable
for and pay any auditors' fees incurred in relation to the transaction
contemplated by this Agreement.
11. ENTIRE AGREEMENT
This Agreement together with the Memoranda of Agreement, Registration
Rights Agreement and Non-Competition Agreement contemplated hereby and
two side letters constitutes the entire agreements and understanding of
the Buyers and Sellers with respect to the subject matter hereof and
hereby supersedes any other prior agreements with respect to the
matters set forth herein whether written or oral. Any modification,
waiver or amendment shall be in writing and executed by the Buyers and
Sellers.
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12. NOTICES
Except as may otherwise be expressly provided herein, any notice herein
required or permitted to be given shall be in writing or facsimile
transmission with subsequent written confirmation, any notice may be
personally served, sent by registered mail or by overnight delivery
service providing for evidence of receipt and shall be deemed to have
been given upon receipt by the party notified. For the purposes hereof,
the addresses of the parties hereto (until notice of a change thereof
is delivered as provided in this Section 12) shall be as set forth
opposite each party's name on the signature page hereof.
13. SEVERABILITY: COUNTERPARTS
In case any provision of or obligation under this Agreement shall be
invalid, illegal or unenforceable in any jurisdiction, the validity,
legality and enforceability of the remaining provisions or obligations,
or of such provision or obligation in any other jurisdiction, shall not
in any way be affected or impaired thereby. This Agreement may be
executed by the parties hereto in separate counterparts, each of which
when so executed and delivered shall be an original, but all of such
counterparts shall together constitute one and the same instrument.
14. GOVERNING LAW
This Agreement shall by governed by and construed in accordance with
the laws of England and the Buyers and the Sellers hereby irrevocably
submit to the exclusive jurisdiction of the Courts of England.
15. SUCCESORS AND ASSIGNS
This Agreement shall be binding upon and shall inure to the benefit of
the parties hereto and their respective successors and assigns;
provided, however, that neither Buyers nor Sellers shall be permitted
to assign its rights under this Agreement without the prior written
consent of the other parties (other than the Buyers' and Sellers'
assignment of its rights to one or more of its affiliates).
Notwithstanding any assignment the Buyers and Sellers shall both remain
liable and responsible for the performance of this Agreement.
16. PUBLICITY
Any press release or public announcement or disclosure by the Buyers or
Sellers or any of their respective affiliates regarding this Agreement
or the transactions contemplated hereby must first be submitted to and
be given the prior written approval of the otber, who shall be entitled
to require reasonable modifications to be made. The Buyers shall make
no public or other announcement concerning this transaction until such
time as their loan documentation has been executed and this Agreement
and all Memoranda of Agreement shall become unconditional save for
inspection of the Vessels.
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ARBITRATION
17. The arbitration clause contained in Clause 16 of the Memorandum of
Agreement shall apply mutatis mutandis as if set out in full herein.
18.
(a) Any default by the Buyers under the terms of any of the
Memoranda of Agreement shall be a default of the terms hereof
and any default by the Buyers under the terms of this
Agreement shall be an event of default under each of the
Memoranda of Agreement and the Sellers shall be entitled to
terminate this Agreement and each of the Memoranda of
Agreement without affecting the Sellers' rights to claim
damages or exercising any other rights and remedies they may
have.
(b) In the event of one of the Sellers refusing to deliver a
Vessel under its control to the Buyers the Sellers shall be in
default under the terms of this Agreement and the Buyers shall
be entitled to terminate this Agreement and the Memoranda of
Agreement without affecting the Buyers' rights to claim
damages or exercising any other right and remedies they may
have.
IN WITNESS WHEREOF, the duly authorised representatives of the parties have
caused this Agreement to be executed on the date first written above.
By:
HVIDE MARINE INCORPORATED
Address: 0000 Xxxxx Xxxxx
Xxxx Xxxxxxxxxx
Xxxxxxx 00000
XXX
Fax No: (000) 000 0000
By:
CARE OFFSHORE INC.
Address: C/o Constant & Constant
Sea Containers House
00 Xxxxx Xxxxxx
Xxxxxx XX0 0XX
Xxxxxxx
Fax No: (00 000) 000 0000
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