--------------------------------------------------------------------------------
STOCK EXCHANGE AGREEMENT
AMONG
XXXXX ENTERPRISES CORPORATION,
XXXXX TRANSPORTATION COMPANY,
THE XXXXX STOCKHOLDERS NAMED HEREIN,
THE TURECAMO ENTITIES NAMED HEREIN
AND
THE TURECAMO STOCKHOLDERS NAMED HEREIN
AUGUST 31, 1998
--------------------------------------------------------------------------------
TABLE OF CONTENTS
1. DEFINITIONS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .-2-
2. CONTRIBUTION TRANSACTIONS . . . . . . . . . . . . . . . . . . . . . . . . . .-2-
(a) TURECAMO STOCKHOLDERS. . . . . . . . . . . . . . . . . . . . . . . . . .-2-
(b) XXXXX STOCKHOLDERS . . . . . . . . . . . . . . . . . . . . . . . . . . .-3-
(c) THE CLOSING. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .-3-
(d) DELIVERIES AT THE CLOSING. . . . . . . . . . . . . . . . . . . . . . . .-3-
(e) ADJUSTMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .-4-
(f) CASH ESCROW. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .-4-
(g) STOCK ESCROW . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .-5-
3. REPRESENTATIONS AND WARRANTIES CONCERNING THE TRANSACTION . . . . . . . . . .-9-
(a) REPRESENTATIONS AND WARRANTIES OF THE TURECAMO STOCKHOLDERS. . . . . . .-9-
(b) REPRESENTATIONS AND WARRANTIES OF THE TURECAMO ENTITIES. . . . . . . . .-9-
(c) REPRESENTATIONS AND WARRANTIES OF THE XXXXX STOCKHOLDERS . . . . . . . -10-
(d) REPRESENTATIONS AND WARRANTIES OF XXXXX ENTERPRISES. . . . . . . . . . -10-
(e) REPRESENTATIONS AND WARRANTIES OF XXXXX. . . . . . . . . . . . . . . . -10-
4. PRE-CLOSING COVENANTS . . . . . . . . . . . . . . . . . . . . . . . . . . . -10-
(a) GENERAL. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -10-
(b) NOTICES AND CONSENTS . . . . . . . . . . . . . . . . . . . . . . . . . -10-
(c) OPERATION OF BUSINESS. . . . . . . . . . . . . . . . . . . . . . . . . -11-
(d) PRESERVATION OF BUSINESS . . . . . . . . . . . . . . . . . . . . . . . -11-
(e) FULL ACCESS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -11-
(f) NOTICE OF DEVELOPMENTS . . . . . . . . . . . . . . . . . . . . . . . . -12-
(g) EXCLUSIVITY. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -12-
5. POST-CLOSING COVENANTS. . . . . . . . . . . . . . . . . . . . . . . . . . . -13-
(a) GENERAL. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -13-
(b) LITIGATION SUPPORT . . . . . . . . . . . . . . . . . . . . . . . . . . -13-
(c) CONFIDENTIALITY. . . . . . . . . . . . . . . . . . . . . . . . . . . . -13-
(d) COVENANT NOT TO COMPETE. . . . . . . . . . . . . . . . . . . . . . . . -14-
(e) TURECAMO STOCKHOLDER TAX LIABILITY . . . . . . . . . . . . . . . . . . -15-
6. CONDITIONS TO OBLIGATION TO CLOSE . . . . . . . . . . . . . . . . . . . . . -15-
(a) CONDITIONS TO OBLIGATION OF XXXXX ENTERPRISES AND THE XXXXX
STOCKHOLDERS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -15-
(b) CONDITIONS TO OBLIGATION OF THE TURECAMO STOCKHOLDERS. . . . . . . . . -19-
7. REMEDIES FOR BREACHES OF THIS AGREEMENT . . . . . . . . . . . . . . . . . . -21-
(a) SURVIVAL OF REPRESENTATIONS AND WARRANTIES . . . . . . . . . . . . . . -21-
(b) INDEMNIFICATION BY THE TURECAMO STOCKHOLDERS . . . . . . . . . . . . . -22-
(c) INDEMNIFICATION AND ADJUSTMENT BY XXXXX ENTERPRISES. . . . . . . . . . -24-
(d) INDEMNIFICATION BY XXXXX STOCKHOLDERS. . . . . . . . . . . . . . . . . -26-
(e) MATTERS INVOLVING THIRD PARTIES. . . . . . . . . . . . . . . . . . . . -27-
(f) LIMITATION ON REMEDIES . . . . . . . . . . . . . . . . . . . . . . . . -29-
(g) INDEMNIFICATION OF DIRECTORS AND OFFICERS. . . . . . . . . . . . . . . -30-
(h) OTHER INDEMNIFICATION PROVISIONS . . . . . . . . . . . . . . . . . . . -30-
(i) EXCLUSIVITY. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -30-
(j) COVERED PERSONS. . . . . . . . . . . . . . . . . . . . . . . . . . . . -30-
8. TAX MATTERS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -30-
(a) TAX PERIODS ENDING ON OR BEFORE THE CLOSING DATE . . . . . . . . . . . -31-
(b) TAX PERIODS BEGINNING BEFORE AND ENDING AFTER THE CLOSING DATE . . . . -31-
(c) COOPERATION ON TAX MATTERS . . . . . . . . . . . . . . . . . . . . . . -31-
(d) TAX SHARING AGREEMENTS . . . . . . . . . . . . . . . . . . . . . . . . -32-
(e) CERTAIN TAXES. . . . . . . . . . . . . . . . . . . . . . . . . . . . . -32-
9. TERMINATION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -32-
(a) TERMINATION OF AGREEMENT . . . . . . . . . . . . . . . . . . . . . . . -32-
(b) EFFECT OF TERMINATION. . . . . . . . . . . . . . . . . . . . . . . . . -33-
10. MISCELLANEOUS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -33-
(a) PRESS RELEASES AND PUBLIC ANNOUNCEMENTS. . . . . . . . . . . . . . . . -33-
(b) NO THIRD-PARTY BENEFICIARIES . . . . . . . . . . . . . . . . . . . . . -34-
(c) ENTIRE AGREEMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . -34-
(d) SUCCESSION AND ASSIGNMENT. . . . . . . . . . . . . . . . . . . . . . . -34-
(e) COUNTERPARTS; FACSIMILE EXECUTION. . . . . . . . . . . . . . . . . . . -34-
(f) HEADINGS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -34-
(g) NOTICES. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -35-
(h) GOVERNING LAW. . . . . . . . . . . . . . . . . . . . . . . . . . . . . -35-
(i) AMENDMENTS AND WAIVERS . . . . . . . . . . . . . . . . . . . . . . . . -36-
(j) SEVERABILITY . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -36-
(k) EXPENSES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -36-
(l) CONSTRUCTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -36-
(m) INCORPORATION OF EXHIBITS, ANNEXES, AND SCHEDULES. . . . . . . . . . . -37-
(n) SPECIFIC PERFORMANCE . . . . . . . . . . . . . . . . . . . . . . . . . -37-
(o) ARBITRATION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -37-
(p) TURECAMO STOCKHOLDER REPRESENTATIVE. . . . . . . . . . . . . . . . . . -38-
Appendix A - Definitions
Schedule 1 - List of Turecamo Stockholders and Xxxxx Stockholders
Schedule l(b) - List of Automobiles
Schedule 2(g) - Procedures to be Used in Preparing Adjustment Schedule and in
calculating EBITDA
Schedule 2(g)(iii) - Sample Calculation
Schedule 5(d) - Certain Affiliates
Schedule 6(a)(xviii) - Commitment Letter
Schedule 6(b)(xvi) - Terms of Certain Put Arrangements
Exhibit A - Form of Stock Escrow Agreement
Exhibit B - Form of Cash Escrow Agreement
Exhibits C-1 to C-4 - Forms of Employment Agreement
Exhibit D - Form of Opinion of Xxxxxxxx & Xxxxxxxx
Exhibit E - Forms of Release
Exhibit F - [INTENTIONALLY OMITTED]
Exhibit G - [INTENTIONALLY OMITTED]
Exhibit H - Form of Opinion of Xxxx Xxxxx & Xxxxxxx LLP
Exhibit I - Form of Restated Certificate
Exhibit J - Form of Stockholders Agreement
Exhibit K - Turecamo Financial Statements
Annex I - Representations and Warranties of the Turecamo Stockholders
Annex II - Representations and Warranties of the Turecamo Entities
Annex III - Representations and Warranties of the Xxxxx Stockholders
Annex IV - Representations and Warranties of Xxxxx Enterprises
Annex V - Representations and Warranties of Xxxxx
Xxxxxxxx Stockholder Disclosure Schedule - Exceptions to Representations and
Warranties of the Turecamo Stockholders
Turecamo Disclosure Schedule - Exceptions to Representations and Warranties of
the Turecamo Entities
Xxxxx Stockholder Disclosure Schedule - Exceptions to Representations and
Warranties of the Xxxxx Stockholders
Xxxxx Enterprises Disclosure Schedule - Exceptions to Representations and
Warranties of Xxxxx Enterprises
Xxxxx Disclosure Schedule - Exceptions to Representations and Warranties of
Xxxxx
STOCK EXCHANGE AGREEMENT
STOCK EXCHANGE AGREEMENT, dated as of August 31, 1998 (this "AGREEMENT"),
among XXXXX ENTERPRISES CORPORATION, a Delaware corporation ("XXXXX
ENTERPRISES"), XXXXX TRANSPORTATION COMPANY, a Delaware corporation ("XXXXX"),
the Stockholders of Xxxxx listed on Schedule 1 attached hereto, constituting all
of the stockholders of Xxxxx (each a "XXXXX STOCKHOLDER" and, collectively, the
"XXXXX STOCKHOLDERS"), TURECAMO MARITIME, INC., a Delaware corporation
("MARITIME"), WHITE STACK MARITIME CORP., a Delaware corporation ("WHITE
STACK"), TURECAMO OF SAVANNAH, INC., a Georgia corporation ("TOS"), TURECAMO
ENVIRONMENTAL SERVICES, INC., a Delaware corporation ("TES" and, together with
Maritime, White Stack and TOS, each, a "TURECAMO ENTITY" and, collectively, the
"TURECAMO ENTITIES"), and the stockholders of the Turecamo Entities listed on
Schedule 1 attached hereto, constituting all of the stockholders of the Turecamo
Entities (each, a "TURECAMO STOCKHOLDER" and, collectively, the "TURECAMO
STOCKHOLDERS"). Xxxxx Enterprises, Xxxxx, the Xxxxx Stockholders, the Turecamo
Entities and the Turecamo Stockholders are referred to collectively herein as
the "PARTIES".
RECITALS
WHEREAS, the Turecamo Entities are engaged in the businesses of providing
tug services, including ship docking and undocking and barge towing services,
and marine and land clean-up services in connection with environmental spills
(the "TURECAMO BUSINESS");
WHEREAS, the Turecamo Stockholders own all of the issued and outstanding
capital stock of the Turecamo Entities (collectively, the "TURECAMO STOCK") in
the respective amounts set forth on Schedule 1;
WHEREAS, Xxxxx is engaged in the businesses of providing tug services,
including ship docking and undocking and barge towing services and of providing
transportation of bulk cargoes with Xxxxx'x fleet of barges (the "XXXXX
BUSINESS");
WHEREAS, the Xxxxx Stockholders own all of the issued and outstanding
capital stock of Xxxxx (the "XXXXX STOCK") in the respective amounts set forth
on Schedule 1;
WHEREAS, each Turecamo Stockholder wishes to contribute to Xxxxx
Enterprises the shares of Turecamo Stock held by him or her and Xxxxx
Enterprises wishes to accept such shares of Turecamo Stock, in consideration of
which Xxxxx Enterprises shall (a) issue to each Turecamo Stockholder shares of
Xxxxx Enterprises Common Stock, and (b) pay to each Turecamo Stockholder cash,
each in the amounts specified below;
WHEREAS, (a) the number of shares of Xxxxx Enterprises Common Stock
issuable to the Turecamo Stockholders will represent, in the aggregate, 29% of
the Xxxxx Enterprises Common Stock (on a fully-diluted basis as of the Closing,
assuming the exercise of employee stock options of Xxxxx that are converted into
employee stock options of Xxxxx Enterprises as of the Closing), of which the
Escrow Shares (as defined below) shall be delivered into escrow as described in
Section 2(g), and (b) the cash
amount payable to the Turecamo Stockholders (the "CASH PORTION") shall equal
$45,000,000 (subject to increase as provided in Section 2(e)), of which
$2,000,000 shall be delivered into escrow as described in Section 2(f);
WHEREAS, each of the Xxxxx Stockholders wishes to contribute to Xxxxx
Enterprises the shares of Xxxxx Stock held by him, her or it, and Xxxxx
Enterprises wishes to accept such shares of Xxxxx Stock, in consideration of
which Xxxxx Enterprises shall issue to each Xxxxx Stockholder (a) shares of
Xxxxx Enterprises Common Stock and (b) shares of Xxxxx Enterprises Preferred
Stock, each in the amounts specified below; and
WHEREAS, (a) the number of shares of Xxxxx Enterprises Common Stock
issuable to the Xxxxx Stockholders (and to holders of options to purchase Xxxxx
Common Stock, whose options will be converted into options to acquire Xxxxx
Enterprises Common Stock) will represent, in the aggregate, 71% of the Xxxxx
Enterprises Common Stock (on a fully-diluted basis as of the Closing, assuming
the exercise of employee stock options of Xxxxx that are converted into employee
stock options of Xxxxx Enterprises), and (b) the number of shares of Xxxxx
Enterprises Preferred Stock issuable to the Xxxxx Stockholders will represent,
in the aggregate, 100% of the Xxxxx Enterprises Preferred Stock outstanding as
of the Closing.
NOW, THEREFORE, in consideration of the premises and the mutual promises
herein made, and in consideration of the representations, warranties, and
covenants herein contained, the Parties, intending to be legally bound, hereby
agree as follows:
1. DEFINITIONS. Capitalized terms used, but not otherwise defined, herein
have the meanings ascribed to such terms in Appendix A hereto.
2. CONTRIBUTION TRANSACTIONS.
(a) TURECAMO STOCKHOLDERS. On and subject to the terms and
conditions of this Agreement, at the Closing each of the Turecamo Stockholders
shall contribute to Xxxxx Enterprises the shares of Turecamo Stock set forth
opposite his or her name on Schedule 1 attached hereto, and, in exchange
therefor, Xxxxx Enterprises shall:
(i) issue and deliver to each Turecamo Stockholder the number
of shares of Xxxxx Enterprises Common Stock set forth opposite his or her
name on Schedule 1 attached hereto, of which the number of Escrow Shares
set forth opposite such Turecamo Stockholder's name on Schedule 1 attached
hereto shall be deposited with the Escrow Agent to be held in escrow
pursuant to the Stock Escrow Agreement (as described in Section 2(g)
below); and
(ii) subject to increase or decrease pursuant to Section 2(e)
below, pay to each Turecamo Stockholder cash in the amount set forth
opposite his or her name on Schedule 1 attached hereto, of which:
(A) such Turecamo Stockholder's share of the Escrow Cash
Portion (allocated among the Turecamo Stockholders as set forth on
Schedule 1) shall be deposited with the Escrow Agent into the Cash
Escrow Account to be held pursuant to the Cash Escrow Agreement (as
described in Section 2(f) below), and
(B) the balance shall be paid by wire transfer or delivery
of immediately available funds to an account specified by such
Turecamo Stockholder in writing at least two (2) Business Days prior
to the Closing Date.
(b) XXXXX STOCKHOLDERS. On and subject to the terms and conditions
of this Agreement, at the Closing each of the Xxxxx Stockholders shall
contribute to Xxxxx Enterprises the shares of Xxxxx Stock set forth opposite
his, her or its name on Schedule 1 attached hereto, and, in exchange therefor,
Xxxxx Enterprises shall deliver to each such Xxxxx Stockholder:
(i) the number of shares of Xxxxx Enterprises Common Stock set
forth opposite his, her or its name on Schedule 1 attached hereto; and
(ii) the number of shares of Xxxxx Enterprises Preferred Stock
set forth opposite his, her or its name on Schedule 1 attached hereto.
(c) THE CLOSING. The closing of the transactions contemplated by
this Agreement (the "CLOSING") shall take place at the offices of Xxxx Xxxxx &
Xxxxxxx LLP, One Landmark Square, Stamford, Connecticut, commencing at 9:00 a.m.
local time on the second Business Day following the satisfaction or waiver of
all conditions to the obligations of the Parties to consummate the transactions
contemplated hereby (other than conditions with respect to actions the
respective Parties will take at the Closing itself) or such other date as the
Parties may mutually determine (the "CLOSING DATE").
(d) DELIVERIES AT THE CLOSING. At the Closing:
(i) the Turecamo Stockholders shall deliver to Xxxxx
Enterprises the various certificates, instruments, and documents referred
to in Section 6(a) below;
(ii) Xxxxx Enterprises, Xxxxx and/or the Xxxxx Stockholders, as
applicable, shall deliver to the Turecamo Stockholders the various
certificates, instruments and documents referred to in Section 6(b) below;
(iii) each of the Turecamo Stockholders shall deliver to
Xxxxx Enterprises stock certificates representing all of his or her shares
of Turecamo Stock, endorsed in blank or accompanied by duly executed
assignment documents, signatures guaranteed;
(iv) Xxxxx Enterprises shall issue and/or deliver to each of
the Turecamo Stockholders the consideration specified in Section 2(a)
above;
(v) The Turecamo Stockholders shall deposit into escrow with
the Escrow Agent the Escrow Shares and the Escrow Cash Portion specified in
Section 2(a) above;
(vi) each of the Xxxxx Stockholders shall deliver to Xxxxx
Enterprises the stock certificates representing all of his, her or its
shares of Xxxxx Stock, endorsed in blank or accompanied by duly executed
assignment documents, signatures guaranteed; and
(vii) Xxxxx Enterprises shall issue to each of the Xxxxx
Stockholders the shares of Xxxxx Enterprises Common Stock and Xxxxx
Enterprises Preferred Stock specified in
Section 2(b) above.
(e) ADJUSTMENT.
(i) In the event that the Closing does not occur on or prior
to September 1, 1998, the Cash Portion shall be increased by an amount of
interest equal to $10,000 per day for each day during the period from (and
including) September 2, 1998 through and including the actual Closing Date,
such additional cash to be paid to the Turecamo Stockholders pro rata based
upon their respective interests in the cash payments to be made by Xxxxx
Enterprises pursuant to Section 2(a)(ii).
(ii) In the event that since the Most Recent Fiscal Year End
and on or prior to the Closing Date, the Turecamo Entities make or declare,
set aside or pay, any dividend, or make any distribution with respect to
the capital stock (whether in cash or in kind) of the Turecamo Entities, or
redeem, purchase or otherwise acquire any of the capital stock of the
Turecamo Entities (collectively, "DISTRIBUTIONS"), and the aggregate
consideration paid or set aside by the Turecamo Entities with respect to
such Distributions exceeds the Aggregate Distributions, the Cash Portion
shall be decreased by such amount, or if such excess is not known until
after the Closing Date, the Turecamo Stockholders shall promptly upon
receipt of notice of such excess Distributions, each pay their pro rata
share of such excess Distributions to the applicable Turecamo Entity.
(f) CASH ESCROW. At Closing, as contemplated by Section 2(a)(ii),
Xxxxx Enterprises shall deposit, on behalf of the Turecamo Stockholders, an
aggregate of $2,000,000 in cash from the Cash Portion (allocated among the
Turecamo Stockholders as set forth on Schedule 1) (collectively, the "ESCROW
CASH PORTION") into an escrow account (the "CASH ESCROW ACCOUNT") maintained
with a mutually agreed upon independent escrow agent (the "ESCROW AGENT"). Such
Escrow Cash Portion will be held for the Turecamo Stockholders (or, if
applicable, Xxxxx Enterprises) as specified in an escrow agreement substantially
in the form of Exhibit B hereto (the "CASH ESCROW AGREEMENT") to be executed by
Xxxxx Enterprises, the Turecamo Stockholders and the Escrow Agent. Interest
earned on such Escrow Cash Portion shall be paid to the Turecamo Stockholders on
a quarterly basis and shall not constitute a part of the Escrow Cash Portion.
Xxxxx Enterprises and the Turecamo Stockholders agree that the Cash Escrow
Account shall be used solely to satisfy any obligations of the Turecamo
Stockholders set forth in Section 7(b) hereof, including, with respect to all
Third Party Claims for which the Turecamo Stockholders are the Indemnifying
Parties, reimbursement of the fees and expenses (including court costs and
attorneys' fees and expenses) of the Party conducting the defense of such Third
Party Claims in accordance with Section 7(e) hereof. With respect to each
Third Party Claim for which the Turecamo Stockholders are the Indemnifying
Parties, the Cash Escrow Account may be used for the reimbursement of the fees
and expenses of only one counsel for all of the Turecamo Stockholders. If and
to the extent that not all the Escrow Cash Portion is used to satisfy
obligations of the Turecamo Stockholders pursuant to this Section 2(f), then any
remaining funds in the Cash Escrow Account shall be released to the Turecamo
Stockholders by the Escrow Agent in accordance with the terms of the Cash Escrow
Agreement. The fees and expenses of the Escrow Agent shall be paid by Xxxxx
Enterprises.
(g) STOCK ESCROW.
(i) At Closing, as contemplated by Section 2(a)(i), the
Turecamo Stockholders shall deposit
an aggregate of 8,448 shares of Xxxxx Enterprises Common Stock
(allocated among the Turecamo Stockholders as set forth on Schedule 1)
(collectively, the "ESCROW SHARES") into an escrow account (the "STOCK
ESCROW ACCOUNT") maintained with the Escrow Agent. Such Escrow Shares
will be held for, and dividends distributed on such Escrow Shares will
be paid to the Escrow Agent for distribution to, the Turecamo
Stockholders (or, if applicable, Xxxxx Enterprises) as specified in a
stock escrow agreement substantially in the form of Exhibit A hereto
(the "STOCK ESCROW AGREEMENT") to be executed by Xxxxx Enterprises, the
Turecamo Stockholders and the Escrow Agent. The Turecamo Stockholders
as to whom Escrow Shares have been placed into escrow (the "EARNOUT
HOLDERS") shall be entitled to voting rights with respect to the Escrow
Shares while they are held in escrow.
(ii) The Earnout Holders will have the right to receive the
Escrow Shares out of escrow if, when and to the extent that the cumulative
consolidated "EBITDA" (consolidated earnings before interest, taxes,
depreciation and amortization of Xxxxx Enterprises and its Subsidiaries, as
set forth on the audited financial statements of Xxxxx Enterprises and its
Subsidiaries during the applicable period (which financial statements shall
be prepared in accordance with GAAP, consistently applied; provided that
EBITDA, for purposes of this Section 2(g)(ii), shall be calculated based
upon Xxxxx'x accounting practices as in effect on December 31, 1997),
excluding the impact of any extraordinary items as defined by GAAP) of
Xxxxx Enterprises and its Subsidiaries exceeds certain thresholds for the
five full fiscal years ending December 31, 2002 (including, for the period
beginning January 1, 1998 through the Closing Date, the combined EBITDA of
Xxxxx and its Subsidiaries and the Turecamo Entities (after excluding the
operations related to the Balance Sheet Distributions on a pro forma basis
for such period)) (the "EARNOUT PERIOD"). The cumulative EBITDA thresholds
set forth in Section 2(g)(iii) below shall be subject to further
adjustment, as set forth in Section 7(c)(ii).
In connection with the foregoing:
(A) As soon as available and in any event within 90 days
after the close of its fiscal year ending December 31, 1998, Xxxxx
Enterprises shall prepare and deliver to the Turecamo Stockholders
audited financial statements of Xxxxx Enterprises and its Subsidiaries
for such fiscal year. In addition, as soon as available and in any
event within 45 days after the delivery of such audited financial
statements, Xxxxx Enterprises shall prepare and deliver to the Earnout
Holders (x) a schedule (the "ADJUSTMENT SCHEDULE") setting forth the
pro forma adjustments to such financial statements made to exclude the
operations related to the Balance Sheet Distributions as contemplated
by this Section 2(g)(ii) above and such other agreed-upon pro forma
adjustments described in this Section 2(g)(ii) above and on Schedule
2(g) attached hereto, and (y) the amount of cumulative consolidated
EBITDA for such fiscal year (including the computation thereof), in
each case together with a certificate of the Chief Financial Officer
of Xxxxx Enterprises stating that such Adjustment Schedule and the
amount (and computation) of cumulative consolidated EBITDA were
prepared in accordance with this Section 2(g) and Schedule 2(g)
attached hereto.
(B) As soon as available and in any event within 90 days
after the close of each of the final four fiscal years during the
Earnout Period (the fiscal years ending on December 31 in the years
1999, 2000, 2001 and 2002), Xxxxx Enterprises shall prepare and
deliver to the Turecamo Stockholders (x) audited financial statements
of Xxxxx Enterprises
and its Subsidiaries for each such fiscal year, and (y) the amount
of cumulative consolidated EBITDA for each such fiscal year
(including the computation thereof), in each case together with a
certificate of the Chief Financial Officer of Xxxxx Enterprises
stating that the amount (and computation) of cumulative
consolidated EBITDA were prepared in accordance with this Section
2(g) and Schedule 2(g) attached hereto. In addition, the Turecamo
Stockholder Representative and its accounting advisor shall have
reasonable access to the books and records of Xxxxx Enterprises,
including the audit work papers, for purposes of reviewing the
foregoing.
(C) In the event that, with respect to each fiscal year,
the Turecamo Stockholders do not agree (x) with the Adjustment
Schedule or any adjustment reflected thereon and/or (y) with the
calculation of cumulative consolidated EBITDA for any such fiscal year
and/or (z) that the amount (and computation) of cumulative
consolidated EBITDA were prepared in accordance with this Section 2(g)
and Schedule 2(g) attached hereto, the Turecamo Stockholder
Representative shall so inform Xxxxx Enterprises in writing within 30
days after the Earnout Holders' receipt of all of the items specified
in Section 2(g)(ii)(A) or (B), as applicable, such writing to set
forth the objections of the Earnout Holders in reasonable detail and
the position of the Earnout Holders on the manner in which such
objections should be resolved and the cumulative consolidated EBITDA
which the Earnout Holders believe is appropriate (the "TURECAMO
STOCKHOLDER POSITION"). Within ten (10) days after receipt by Xxxxx
Enterprises of the Turecamo Stockholder Position, Xxxxx Enterprises
shall inform the Earnout Holders of its position on the manner in
which the objections of the Earnout Holders should be resolved (the
"XXXXX POSITION"). If the Turecamo Stockholder Representative and
Xxxxx Enterprises cannot reach agreement as to any disputed matter
within 15 days following the exchange of their respective positions,
then either or both of the Turecamo Stockholder Representative and
Xxxxx Enterprises may forthwith refer the dispute to a big five
accounting firm mutually agreeable to the Turecamo Stockholder
Representative and Xxxxx Enterprises (the "ARBITRATING ACCOUNTANT")
for resolution. The Turecamo Stockholder Representative and Xxxxx
Enterprises shall furnish such Arbitrating Accountant with a copy of
this Agreement, the audited financial statements of Xxxxx Enterprises
and its Subsidiaries for the applicable fiscal year (including all
work papers related thereto), the Adjustment Schedule, if applicable,
the amount and computation of cumulative consolidated EBITDA, the
Turecamo Stockholder Position and the Xxxxx Position and any other
relevant correspondence between the Turecamo Stockholder
Representative and Xxxxx Enterprises, and such other written
submittals upon which each party intends to rely (which shall also be
exchanged with the other party). Such Arbitrating Accountant will be
granted access to the books and records of Xxxxx Enterprises and its
Subsidiaries and such other documents or information as such
Arbitrating Accountant deems appropriate.
The Arbitrating Accountant's review shall be limited to the
purpose of determining, in respect of the dispute, the EBITDA amount,
as set forth in either the Xxxxx Position or the Turecamo Stockholder
Position, which is more nearly in accordance with the terms of this
Agreement. In arriving at its determination, such Arbitrating
Accountant must select either the EBITDA amount set forth in the Xxxxx
Position or the EBITDA amount set forth in the Turecamo Stockholder
Position. Such Arbitrating Accountant shall finally resolve all
disputed items and render a written report to the Turecamo
Stockholders and Xxxxx
Enterprises setting forth its determination in writing within 60 days
after such disputed matters are referred to it. The determination of
the Arbitrating Accountant with respect to all such disputed matters
shall be deemed final and conclusive and shall be binding upon Xxxxx
Enterprises and the Earnout Holders and may be entered and enforced in
any court of competent jurisdiction. In addition, if the Turecamo
Stockholder Representative does not object to the Adjustment Schedule
and/or the EBITDA calculation within the time periods specified in
this Section 2(g)(ii)(C), such matters not objected to shall be deemed
final and conclusive and binding upon Xxxxx Enterprises and the
Earnout Holders. The procedures specified in this Section 2(g)(ii)(C)
shall be the sole and exclusive procedure for resolution of disputes
concerning (x) the Adjustment Schedule and/or (y) the amount and
computation of cumulative consolidated EBITDA for each fiscal year
during the Earnout Period and/or (z) whether the amount (and
computation) of cumulative consolidated EBITDA were prepared in
accordance with this Section 2(g) and Schedule 2(g) attached hereto.
The costs of the dispute resolution procedure specified in this
Section 2(g)(ii)(C) with respect to each disputed matter, including
the fees and expenses of such Arbitrating Accountant and the
respective attorneys' and accountants' fees of each party, shall be
borne by the losing party. The losing party shall be deemed to be the
party whose suggested EBITDA amount was not selected in the final
decision of such Arbitrating Accountant. The procedures specified in
this Section 2(g)(ii)(C) shall be the sole and exclusive procedure for
resolution of disputes concerning the Adjustment Schedule and/or the
amount and computation of cumulative consolidated EBITDA for each
fiscal year during the Earnout Period.
(iii) The following chart lists the applicable cumulative
consolidated EBITDA thresholds (subject to adjustment, as set forth in
Schedule 2(g)(iii)) and the corresponding number of Escrow Shares (together
with all dividends and distributions thereon and proceeds thereof), subject
to adjustments for stock splits, combinations, stock dividends and similar
events, which will be deliverable out of escrow to the Earnout Holders in
the aggregate if, when and to the extent that the applicable threshold is
achieved for the Earnout Period:
Percentage of Fully-
Diluted Shares (computed
Aggregate Number of as of Closing, after giving effect
Escrow Shares Cumulative EBITDA to the delivery of such Escrow
Deliverable Threshold (in thousands) Shares)
------------------------------------------------------------------------------------
1,316 shares $263,462 1%
2,667 shares 266,441 2%
4,054 shares 269,426 3%
5,480 shares 272,400 4%
6,944 shares 275,390 5%
8,448 shares 278,372 (and above) 6%
In the event that cumulative consolidated EBITDA for the Earnout Period
exceeds $263,462,000, but is between any two thresholds set forth above (it
being understood that $278,372,000 is the highest threshold) then the
aggregate number of Escrow Shares that the Earnout Holders shall receive
out of escrow shall be computed as follows:
1. Identify the two cumulative EBITDA thresholds between which
the actual cumulative consolidated EBITDA falls, then
compute the difference between such two cumulative EBITDA
thresholds.
2. Compute the difference between the actual cumulative
consolidated EBITDA and the lower of the two thresholds.
3. Divide (2) by (1).
4. Divide (3) by 100.
5. Compute the sum of 0.23 PLUS (4) (expressed as a decimal)
PLUS the percentage (expressed as a decimal) applicable to
the lower cumulative threshold (as set forth in the third
column of the above table).
6. Solve the following equation:
X = ((P * A) - B)/(1-P)
Where:
X= Number of Escrow Shares Deliverable
P= The amount obtained in (5), above
A= The total number of shares of Xxxxx Enterprises
Common Stock outstanding at the Closing (including
shares issuable pursuant to options, warrants,
convertible securities, exchangeable securities
and the like which are outstanding at the Closing,
but excluding the Escrow Shares)
B= Number of shares of Xxxxx Enterprises Common Stock
held by Turecamo Stockholders at the Closing
(excluding the Escrow Shares)
A sample calculation is set forth on Schedule 2(g)(iii). No certificates
or scrip representing fractional shares shall be issued, and no cash in lieu of
fractional shares shall be paid. Instead, any fractional share amounts that
would be issued to an Earnout Holder shall be rounded (with 0.5 and above being
rounded upward to the next highest whole share, and all other fractions being
rounded down to the next lowest whole share).
(iv) Subject to the offset provisions described in Section
7(b)(i)(C) with respect to Escrow Shares that have been put or called and
the put and call provisions contemplated by the
Stockholders Agreement, that portion of the Escrow Shares (together with
all dividends and distributions thereon and all proceeds thereof) which
are deliverable out of escrow in accordance with Section 2(g)(iii) (the
"EARNED SHARES") will be distributed to the Earnout Holders to the extent
provided above (and to the extent not so deliverable to the Earnout
Holders as provided above, shall be forfeited to Xxxxx Enterprises for
cancellation) promptly following the delivery by Xxxxx Enterprises of (A)
Xxxxx Enterprises' audited financial statements for the fiscal year ending
December 31, 2002, (B) the amount and computation of cumulative
consolidated EBITDA for such fiscal year and (C) the aggregate amount and
computation of cumulative consolidated EBITDA for the five full fiscal
years ending December 31, 2002; PROVIDED, HOWEVER, that no such shares
shall be forfeited to Xxxxx Enterprises until after expiration of the 30
day period for notices from the Turecamo Stockholder Representative of
disputed matters set forth in Section 2(g)(ii)(C) above and until after
resolution of such disputed matters, if any. The Earned Shares shall be
delivered to the Earnout Holders in proportion to the number of shares of
Xxxxx Enterprises Common Stock distributed to each such Earnout Holder (as
compared to all Earnout Holders as a group) at the Closing, all as set
forth on Schedule 1.
(v) Xxxxx Enterprises shall not enter into any merger in which
Xxxxx Enterprises is not the surviving entity, consolidation, sale of all
or substantially all of its assets, or any similar transaction to which
Xxxxx Enterprises is a party, or of any liquidation or dissolution of Xxxxx
Enterprises or similar transaction, in any case, occurring on or prior to
December 31, 2002 (a "TRANSACTION"), unless either (A) in the case of a
merger, consolidation or similar transaction, the acquiror or other party
in such Transaction shall be obligated to assume the obligations of Xxxxx
Enterprises with respect to the provisions set forth in Section 2(g)
governing the Escrow Shares and the acquiror or other party shall have
agreed in writing for the benefit of the Turecamo Stockholders that
appropriate provisions will be made following the closing of the
Transaction to ensure that the computation of EBITDA following the
consummation of the Transaction shall, at a minimum, be computed based upon
the operations and activities of substantially all of the assets and
operations of the assets of Xxxxx Enterprises and its Subsidiaries, as
constituted immediately prior to such closing or (B) the escrow and
forfeiture provisions with respect to the Escrow Shares shall be deemed to
have been terminated immediately prior to the consummation of such
Transaction and all such Escrow Shares shall be deemed Earned Shares and
shall be distributed to the Earnout Holders (subject to the offset
provisions described in Section 7(b)(i)(C) with respect to Escrow Shares
that have been put or called and the put and call provisions contemplated
by the Stockholders Agreement).
3. REPRESENTATIONS AND WARRANTIES CONCERNING THE TRANSACTION.
(a) REPRESENTATIONS AND WARRANTIES OF THE TURECAMO STOCKHOLDERS.
Each of the Turecamo Stockholders, SEVERALLY AND NOT JOINTLY, represents and
warrants to Xxxxx Enterprises that the statements contained in Annex I attached
hereto are correct and complete as of the date of this Agreement with respect to
himself or herself, except as set forth in the disclosure schedule of the
Turecamo Stockholders attached hereto (the "TURECAMO STOCKHOLDER DISCLOSURE
SCHEDULE"). The Turecamo Stockholder Disclosure Schedule will be arranged in
paragraphs corresponding to the lettered and numbered paragraphs contained in
Annex I.
(b) REPRESENTATIONS AND WARRANTIES OF THE TURECAMO ENTITIES. The
Turecamo Entities, JOINTLY AND SEVERALLY, represent and warrant to Xxxxx
Enterprises that the statements contained in Annex II attached hereto are
correct and complete as of the date of this Agreement, except as set forth in
the disclosure schedule of the Turecamo Entities attached hereto (the "TURECAMO
DISCLOSURE SCHEDULE").
The Turecamo Disclosure Schedule will be arranged in paragraphs corresponding
to the lettered and numbered paragraphs contained in Annex II.
(c) REPRESENTATIONS AND WARRANTIES OF THE XXXXX STOCKHOLDERS. Each
of the Xxxxx Stockholders, SEVERALLY AND NOT JOINTLY, represents and warrants to
Xxxxx Enterprises that the statements contained in Annex III attached hereto are
correct and complete as of the date of this Agreement with respect to himself,
herself or itself, except as set forth in the disclosure schedule of the Xxxxx
Stockholders attached hereto (the "XXXXX STOCKHOLDER DISCLOSURE SCHEDULE"). The
Xxxxx Stockholder Disclosure Schedule will be arranged in paragraphs
corresponding to the lettered and numbered paragraphs contained in Annex III.
(d) REPRESENTATIONS AND WARRANTIES OF XXXXX ENTERPRISES. Xxxxx
Enterprises represents and warrants to the Turecamo Stockholders that the
statements contained in Annex IV attached hereto are correct and complete as of
the date of this Agreement, except as set forth in the disclosure schedule of
Xxxxx Enterprises attached hereto (the "XXXXX ENTERPRISES DISCLOSURE SCHEDULE").
The Xxxxx Enterprises Disclosure Schedule will be arranged in paragraphs
corresponding to the lettered and numbered paragraphs contained in Annex IV.
(e) REPRESENTATIONS AND WARRANTIES OF XXXXX. Xxxxx represents and
warrants to Xxxxx Enterprises and the Turecamo Stockholders that the statements
contained in Annex V attached hereto are correct and complete as of the date of
this Agreement, except as set forth in the disclosure schedule of Xxxxx attached
hereto (the "XXXXX DISCLOSURE SCHEDULE"). The Xxxxx Disclosure Schedule will be
arranged in paragraphs corresponding to the lettered and numbered paragraphs
contained in Annex V.
4. PRE-CLOSING COVENANTS. The Parties agree as follows with respect to
the period between the execution of this Agreement and the Closing.
(a) GENERAL. Each of the Parties will use his, her or its best
efforts to take all action and to do all things necessary, proper, or advisable
in order to consummate and make effective the transactions contemplated by this
Agreement (including satisfaction, but not waiver, of the closing conditions set
forth in Section 6 below); PROVIDED, HOWEVER, that with respect to the
conditions set forth in Section 6(a)(iii), (iv), (xix), (xxi) (with respect to
Columbia Coastal only), (xxiv) and (xxxi) and Section 6(b)(iv), (v) and (xvii),
this Section 4(a) shall not impose upon any Party any obligation to incur
unreasonable expenses or obligations under the circumstances.
(b) NOTICES AND CONSENTS.
(i) The Turecamo Entities will give any notices to third
parties, and will use best efforts to obtain any third party consents, that
Xxxxx Enterprises may reasonably request in connection with the matters
referred to in Section (c) of Annex II attached hereto.
(ii) Xxxxx Enterprises will give any notices to third parties,
and will use best efforts to obtain any third party consents, that are
listed in Section (c) of Annex IV attached hereto.
(iii) Xxxxx and its Subsidiaries will give any notices to
third parties and will use best efforts to obtain any third party consents,
that are listed in Section (c) of Annex V attached hereto.
(iv) The Turecamo Entities will give any notices to, make any
filings with, and use their respective best efforts to obtain any material
authorizations, consents, and approvals of
Governmental Authorities that Xxxxx Enterprises may reasonably request in
connection with the matters referred to in Section (c) of Annex II
attached hereto.
(v) Xxxxx Enterprises and Xxxxx will give any notices to, make
any filings with, and use their best efforts to obtain all material
authorizations, consents, and approvals of Governmental Authorities that
the Turecamo Stockholders may reasonably request in connection with the
matters referred to in Section (c) of Annex IV attached hereto and Section
(c) of Annex V attached hereto.
(vi) Each Turecamo Stockholder will give any notices to third
parties, and will use his or her best efforts to obtain any third party
consents, that Xxxxx Enterprises may reasonably request in connection with
the matters referred to in Section (c) of Annex I.
(vii) Each Xxxxx Stockholder will give any notices to third
parties, and will use his or her best efforts to obtain any third party
consents, that the Turecamo Stockholders may reasonably request in
connection with the matters referred to in Section (c) of Annex III.
(c) OPERATION OF BUSINESS.
(i) The Turecamo Entities shall not engage in any practice, take
any action, or enter into any transaction outside the Ordinary Course of
Business. Without limiting the generality of the foregoing, the Turecamo
Entities shall not, without the consent of Xxxxx, (x) declare, set aside,
or pay any dividend or make any distribution with respect to its capital
stock (other than the Balance Sheet Distributions and Tax Distributions) or
redeem, purchase, or otherwise acquire any of its capital stock or (y)
otherwise engage in any practice, take any action, or enter into any
transaction of the sort described in Section (g) of Annex II or (z) reverse
any accruals previously taken with respect to certain insurance reserves.
(ii) Xxxxx shall not be operated outside the Ordinary Course of
Business. Without limiting the generality of the foregoing, Xxxxx shall
not declare, set aside, or pay any dividend or make any distribution with
respect to its capital stock or redeem, purchase, or otherwise acquire any
of its capital stock. Xxxxx agrees that it shall not, directly or
indirectly, enter into, or agree to enter into, any merger, consolidation,
share exchange, stock or asset sale or acquisition or any similar
transaction, or any liquidation, dissolution or recapitalization
transaction, or any financing transaction, which adversely affects or
impairs the ability of Xxxxx or Xxxxx Enterprises to consummate the
transactions contemplated hereby or the ability of Xxxxx or Xxxxx
Enterprises to fully perform all of its obligations hereunder.
(d) PRESERVATION OF BUSINESS. Each of Xxxxx and the Turecamo
Entities shall keep its respective business and properties substantially intact,
including its respective present operations, physical facilities, working
conditions, and relationships with customers, suppliers, lessors, licensors and
employees. Notwithstanding anything to the contrary contained in this
Agreement, the Turecamo Entities may distribute both the Balance Sheet
Distributions pursuant to the Distribution Agreement and the Tax Distributions.
(e) FULL ACCESS. Each of the Parties will permit representatives of
the other Parties to have full access at all reasonable times, to all premises,
properties, personnel, accountants, customers (subject to the condition that any
Party may require that one of its officers or employees be present at any such
contact), suppliers (subject to the condition that any Party may require that
one of its officers
or employees be present at any such contact), third party lenders (subject to
the condition that any Party may require that one of its officers or employees
be present at any such contact), other third parties whose consent is required
in order to consummate the transactions contemplated hereby and by the
Ancillary Agreements, books, records (including Tax records), contracts, and
documents of or pertaining to each of the Turecamo Entities, Xxxxx Enterprises,
or Xxxxx and its Subsidiaries. The Parties agree that performance of this
covenant is necessary in order, among other things, to determine whether the
conditions to Closing have been satisfied. Without limiting the foregoing, the
Parties understand that the condition to Closing set forth in Section
6(a)(xiii) contains a time limitation and that TIME IS OF THE ESSENCE with
respect to this covenant.
(f) NOTICE OF DEVELOPMENTS. Each Party will give prompt written
notice to the others of any material adverse development causing a breach of any
of his, her or its representations and warranties in Annexes I-V hereto. No
disclosure by any Party pursuant to this Section 4(f), however, shall be deemed
to amend or supplement any disclosure schedule or to prevent or cure any
misrepresentation, breach of warranty, or breach of covenant.
(g) EXCLUSIVITY. During the period commencing upon full execution of
this Agreement and ending upon the termination of this Agreement (the
"EXCLUSIVITY PERIOD"), none of the Turecamo Stockholders or the Turecamo
Entities will (and the Turecamo Stockholders will not cause or permit any of the
Turecamo Entities to):
(i) solicit, encourage, or facilitate, including by way of
furnishing information, any inquiries concerning or proposals for a merger,
consolidation, share exchange or similar transaction involving any of the
Turecamo Entities, or for the liquidation, dissolution or recapitalization
of any of the Turecamo Entities, or for the acquisition of any equity
interest in any of the Turecamo Entities or of any portion of the assets of
any of the Turecamo Entities outside the Ordinary Course of Business, or
for any tender offer, sale of securities, acquisition of beneficial
ownership of or the right to vote securities (any of the foregoing being
referred to as a "TAKEOVER", and any inquiries or proposals with respect to
a takeover being referred to below as a "TAKEOVER PROPOSAL");
(ii) substantively discuss with or enter into conversations with
any Person concerning any such Takeover Proposal; or
(iii) except in the Ordinary Course of Business, disclose any
nonpublic information to any Person concerning the business and properties
of the Turecamo Entities, afford any Person access to the properties, books
and records of the Turecamo Entities or otherwise assist or encourage any
Person in connection with any of the foregoing. The Turecamo Entities
shall promptly notify Xxxxx orally (to be confirmed in writing as soon as
practicable thereafter) of any inquiries or proposals that any of them may
receive during the Exclusivity Period relating to any such matters and all
the relevant details (including proposed terms and conditions, if any)
relating thereto. Each of the Turecamo Entities and the Turecamo
Stockholders agrees that, during the Exclusivity Period, he, she or it
shall suspend any discussions with any prospective purchaser, investor or
financing source in respect of the assets or capital stock of the Turecamo
Entities (whether by Takeover, purchase, merger or otherwise). Nothing
contained in this proposal shall be deemed to prohibit the Turecamo
Entities or the Turecamo Stockholders from initiating discussions with
third parties (including attorneys, accountants, bankers, suppliers and
other persons) with respect to the separation of Columbia Coastal from the
Turecamo Entities.
In the event that, during the Exclusivity Period, any of the Turecamo Entities,
Turecamo Stockholders or any of their employees, agents or representatives
violates the provisions of this Section 4(g), then the Turecamo Entities shall,
on demand by Xxxxx Enterprises and/or Xxxxx or any of their respective
Subsidiaries or Affiliates, promptly assume and pay, or reimburse Xxxxx
Enterprises and/or Xxxxx or any of their respective Subsidiaries or Affiliates
for, all reasonable fees and expenses incurred by or on behalf of Xxxxx
Enterprises and/or Xxxxx or any of their respective Subsidiaries or Affiliates
in connection with the transactions contemplated by this Agreement and the
Ancillary Agreements, including all reasonable legal, investment banking,
accounting, financing commitment and other fees and expenses, and all fees and
expenses incurred by banks and other lending or financial institutions and
advanced, assumed or reimbursed by Xxxxx Enterprises and/or Xxxxx or any of
their respective Subsidiaries or Affiliates which assumption, payment or
reimbursement shall in no event exceed $750,000 in the aggregate.
Notwithstanding the foregoing, in the event that this Agreement is terminated
pursuant to Section 9(a)(i) or (iii), then the Turecamo Entities shall have no
obligation to effect reimbursement under this paragraph (so long as none of the
Turecamo Entities or any of their employees, agents or representatives shall
have previously violated this Section during the Exclusivity Period).
5. POST-CLOSING COVENANTS. The Parties agree as follows with respect to
the period following the Closing.
(a) GENERAL. In case at any time after the Closing any further
action is necessary or desirable to carry out the purposes of this Agreement,
each of the Parties will take such further action (including the execution and
delivery of such further instruments and documents) as any other Party may
reasonably request, all at the sole cost and expense of the requesting Party
(except to the extent the requesting Party is entitled to indemnification or
adjustment therefor under Section 7 below). The Turecamo Stockholders
acknowledge and agree that from and after the Closing Xxxxx Enterprises will be
entitled to possession of all documents, books, records, agreements, and
financial data of any sort relating to the Turecamo Entities (except books and
records with respect to Tax matters pertinent to the Turecamo Entities or
Turecamo Stockholders, which are addressed in Section 8).
(b) LITIGATION SUPPORT. In the event and for so long as any Party
actively is contesting or defending against any action, suit, proceeding,
hearing, investigation, charge, complaint, claim, or demand in connection with
(i) any transaction contemplated under this Agreement or any of the Ancillary
Agreements or (ii) any fact, situation, circumstance, status, condition,
activity, practice, plan, occurrence, event, incident, action, failure to act,
or transaction on or prior to the Closing Date involving any of the Turecamo
Entities, each of the other Parties will use reasonable efforts to cooperate
with him, her or it and his, her or its counsel in the contest or defense, make
available their personnel, and provide such testimony and access to their books
and records as shall be necessary in connection with the contest or defense, all
at the sole cost and expense of the contesting or defending Party (except to the
extent that the contesting or defending Party is entitled to indemnification or
adjustment therefor under Section 7 below).
(c) CONFIDENTIALITY. Each of the Turecamo Stockholders will treat
and hold as such all of the Confidential Information, refrain from using any of
the Confidential Information except in connection with this Agreement and the
Ancillary Agreements or in their capacity as employees of Xxxxx Enterprises and
its Subsidiaries following Closing, and deliver promptly to Xxxxx Enterprises or
destroy, at the request and option of Xxxxx Enterprises, all tangible
embodiments (and all copies) of the Confidential Information which are in his,
her or its possession. In the event that any of the Turecamo Stockholders is
requested or required (by oral question or request for information or documents
in any legal proceeding, interrogatory, subpoena, civil investigative demand, or
similar process) to disclose any Confidential Information, that Turecamo
Stockholder will notify Xxxxx Enterprises promptly of the
request or requirement so that Xxxxx Enterprises may seek an appropriate
protective order or waive compliance with the provisions of this Section 5(c).
If, in the absence of receipt of a protective order or a waiver hereunder, any
of the Turecamo Stockholders is, on the advice of counsel, compelled to
disclose any Confidential Information, that Turecamo Stockholder may disclose
the Confidential Information without liability hereunder. The foregoing
provisions shall not apply to any Confidential Information which (i) is
generally available to the public immediately prior to the time of disclosure,
(ii) is necessary to satisfy the Turecamo Stockholders' obligations under this
Agreement and the other agreements entered into in connection herewith, (iii)
in the reasonable determination of the Turecamo Stockholders, is or may be
necessary or appropriate to enforce their rights under, or defend any claim
under, this Agreement or any other agreements entered into in connection
herewith or (iv) subject to the preceding sentence, is necessary or appropriate
to disclose to any regulatory authority or Governmental Authority having
jurisdiction over the Turecamo Stockholders; PROVIDED, HOWEVER, that copies of
books and other records relating to tax matters, including Tax Returns, may be
retained in accordance with the provisions of Section 8 and may be disclosed to
any regulatory authority or Governmental Authority, if either the Turecamo
Stockholders are required to disclose such information or the Turecamo
Stockholders reasonably believe that such disclosure is necessary to accurately
determine a Tax Liability.
(d) COVENANT NOT TO COMPETE. Each Turecamo Stockholder agrees that,
for a period ending on the first anniversary of the date on which such Turecamo
Stockholder (directly or through Turecamo Permitted Transferees thereof) ceases
to hold shares of Xxxxx Enterprises Stock (the "NONCOMPETITION PERIOD") such
Turecamo Stockholder shall not engage directly or indirectly in any business
that competes in any way with any business then being conducted by Xxxxx
Enterprises or any Subsidiary or Affiliate thereof; PROVIDED, HOWEVER, that no
owner of less than 1% of the outstanding stock of any publicly-traded
corporation shall be deemed to engage solely by reason thereof in any of its
businesses and PROVIDED, FURTHER, HOWEVER, that this Section 5(d) shall have no
applicability to, and the Turecamo Stockholders may engage directly or
indirectly, but only through Columbia Coastal (whether as owner, officer or
director), in the business of transporting containerized cargo wherever located.
Subject to the provisions of Section 8(b) of the Stockholders Agreement with
respect to Columbia Coastal, during the Noncompetition Period applicable to him
or her, none of the Turecamo Stockholders shall induce or attempt to induce any
customer or supplier, or any potential customer or supplier, of Xxxxx
Enterprises or any of its Subsidiaries or Affiliates to terminate its
relationship with or refrain from establishing a relationship with Xxxxx
Enterprises or any of its Subsidiaries or Affiliates. Subject to the provisions
of Section 8(b) of the Stockholders Agreement with respect to Columbia Coastal,
during the Noncompetition Period applicable to him or her, none of the Turecamo
Stockholders shall directly or indirectly, on behalf of any entity other than
Xxxxx Enterprises or any of its Subsidiaries or Affiliates, hire or retain, or
attempt to hire or retain, in any capacity any person who is, or was at any time
during the preceding twelve (12) months, an employee or officer of Xxxxx
Enterprises or a Subsidiary or an Affiliate. Each of the Turecamo Stockholders
covenants that he or she will not use the names "Turecamo" or "White Stack" in
connection with any maritime business or any business associated with assets
owned or once owned by the Turecamo Entities. Each of the Turecamo Stockholders
acknowledges and agrees that the covenants contained in this Section 5(d) are
reasonable in duration and scope, will not pose an undue hardship on such
Turecamo Stockholder, and are material to Xxxxx Enterprises. If the final
judgment of a court of competent jurisdiction declares that any term or
provision of this Section 5(d) is invalid or unenforceable, the Parties agree
that the court making the determination of invalidity or unenforceability shall
have the power to reduce the scope, duration, or area of the term or provision,
to delete specific words or phrases, or to replace any invalid or unenforceable
term or provision with a term or provision that is valid and enforceable and
that comes closest to expressing the intention of the invalid or unenforceable
term or provision, and this Agreement shall be enforceable as so modified after
the expiration of the time within which the judgment may be
appealed. In order to permit the Turecamo Stockholders to accurately identify
the Affiliates of Xxxxx Enterprises, for purposes of this Section 5(d) only,
the "Affiliates" of Xxxxx Enterprises shall be deemed to be Lakes Shipping
Company, Inc. and its Subsidiaries, Interlake Holding Company, Inc. and its
Subsidiaries, and Mormac Marine Group, Inc. and its respective Subsidiaries, as
listed on Schedule 5(d) hereto, together with any other Affiliates identified
from time to time by Xxxxx Enterprises in a written notice to the Turecamo
Stockholders.
(e) TURECAMO STOCKHOLDER TAX LIABILITY. Each of the Turecamo
Stockholders hereby agrees to pay his or her pro rata share of any Turecamo
Stockholder Tax Liability and to indemnify Xxxxx Enterprises and each of the
Turecamo Entities from and against such Turecamo Stockholder's pro rata share of
such Turecamo Stockholder Tax Liability.
6. CONDITIONS TO OBLIGATION TO CLOSE.
(a) CONDITIONS TO OBLIGATION OF XXXXX ENTERPRISES AND THE XXXXX
STOCKHOLDERS. The obligation of Xxxxx Enterprises and the Xxxxx Stockholders to
consummate the transactions to be performed by him, her or it in connection with
the Closing is subject to satisfaction of the following conditions:
(i) the representations and warranties set forth in Sections
3(a) and (b) above shall be true and correct in all material respects at
and as of the Closing Date (other than representations and warranties which
speak as of another date, which shall be true and correct as of such date);
(ii) the Turecamo Stockholders and the Turecamo Entities shall
have performed and complied with all of their covenants hereunder through
the Closing;
(iii) the Turecamo Stockholders and the Turecamo Entities
shall have procured all of the material third party consents specified in
Section 4(b)(i) and (vi) to be procured by them;
(iv) the Parties shall have received all other material
authorizations, consents, and approvals of the Governmental Authorities
referred to in Section 4(b), and none of the terms or conditions of any
such authorization, consent or approval shall (A) prevent consummation of
any of the transactions contemplated by this Agreement or by the Ancillary
Agreements, (B) cause any of the transactions contemplated by this
Agreement or by the Ancillary Agreements to be rescinded following
consummation, (C) affect materially adversely the right of Xxxxx
Enterprises to own the Turecamo Stock, the Xxxxx Stock or the stock of any
of the Subsidiaries of Xxxxx and to control any of the Turecamo Entities,
Xxxxx, Xxxxx Enterprises or any Subsidiaries of Xxxxx (or any of their
respective assets), (D) affect materially adversely the right of any of the
Turecamo Entities, Xxxxx or any Subsidiaries of Xxxxx or Xxxxx Enterprises
to own its assets and to operate its businesses, or (E) be materially
burdensome to Xxxxx Enterprises or any of its Subsidiaries or any of the
Turecamo Entities;
(v) no action, suit, or proceeding shall be pending or, to the
Knowledge of the Parties, threatened before any Governmental Authority or
before any arbitrator wherein an unfavorable injunction, judgment, order,
decree, ruling, or charge would (A) prevent consummation of any of the
transactions contemplated by this Agreement or by the Ancillary Agreements,
(B) cause any of the transactions contemplated by this Agreement or by the
Ancillary Agreements to be rescinded following consummation, (C) affect
materially adversely the right of Xxxxx Enterprises to own the Turecamo
Stock, the Xxxxx Stock or the stock of any
of the Subsidiaries of Xxxxx and to control any of the Turecamo Entities,
Xxxxx, or any Subsidiaries of Xxxxx (or any of their respective assets),
(D) affect materially adversely the right of any of the Turecamo Entities,
Xxxxx or any Subsidiaries of Xxxxx or Xxxxx Enterprises to own its assets
and to operate its businesses, or (E) be materially burdensome to Xxxxx
Enterprises or any of its Subsidiaries or any of the Turecamo Entities
(and no such injunction, judgment, order, decree, ruling, or charge shall
be in effect);
(vi) the Turecamo Stockholders and the Turecamo Entities shall
have delivered to Xxxxx Enterprises certificates of each Turecamo
Stockholder (as to such Turecamo Stockholder) and an officers' certificate
of the Chairman, President and Chief Financial Officer (in such capacity
and not individually) of each Turecamo Entity to the effect that each of
the conditions specified above in Section 6(a)(i)-(v) is satisfied in all
respects;
(vii) no action shall have been instituted by the Department
of Justice or Federal Trade Commission or any state attorney general or
other state official having jurisdiction challenging or seeking to enjoin
the consummation of the transactions contemplated hereby, which action
shall not have been withdrawn or terminated;
(viii) each of Xxxxxxx X. XxXxxxx, Xxxxx Xxxxxx, Xxxxx Xxxxxx and
Xxxx Xxxxxxxx shall have executed an employment and non-competition
agreement in the form of Exhibits C-1 through C-4, respectively, hereto;
(ix) Xxxxx Enterprises shall have received from Xxxxxxxx &
Xxxxxxxx, counsel to the Turecamo Stockholders and the Turecamo Entities,
and from Georgia counsel and maritime counsel reasonably acceptable to
Xxxxx Enterprises, opinions in form and substance as set forth in Exhibit D
attached hereto, addressed to Xxxxx Enterprises, and dated as of the
Closing Date;
(x) Xxxxx Enterprises shall have received, at Xxxxx Enterprises'
expense, from environmental consultants, environmental assessments with
respect to the present and former businesses and real property (owned and
leased) of the Turecamo Entities located in Charleston, South Carolina and
Savannah, Georgia, in substance reasonably satisfactory to Xxxxx
Enterprises, provided that Xxxxx Enterprises shall not have any drilling or
testing performed at such locations without the prior consent of the
Turecamo Entities (it being understood that, upon request by the Turecamo
Entities, Xxxxx Enterprises shall, prior to Closing, provide updates of the
progress of any such assessments);
(xi) Xxxxx Enterprises shall have received, at Xxxxx Enterprises'
expense, from consultants, engineers or employees of Xxxxx Enterprises,
assessments with respect to the Turecamo Vessels in substance reasonably
satisfactory to Xxxxx Enterprises;
(xii) there shall not have been any occurrence, event,
incident, action, failure to act, or transaction since the Most Recent
Fiscal Year End which has had or is reasonably likely to cause a Turecamo
Material Adverse Effect;
(xiii) by September 21, 1998, Xxxxx Enterprises shall have
completed its business, accounting and legal due diligence review of the
Turecamo Entities and the Turecamo Business, including contacts with key
customers, and the results thereof shall be reasonably satisfactory to
Xxxxx Enterprises;
(xiv) the Turecamo Entities and the lessor of the Leased Real
Property located in Savannah, Georgia shall have entered into a new,
arms'-length lease reasonably satisfactory in form and substance to Xxxxx
Enterprises, and sufficient to evidence such lease of record;
(xv) Xxxxx Enterprises shall have received such pay-off letters,
termination statements, releases of ship mortgages and other releases to be
delivered against repayment by Xxxxx Enterprises of the Indebtedness of the
Turecamo Entities as it shall have reasonably requested, all in form and
substance satisfactory to the lender(s) to Xxxxx Enterprises (in their sole
discretion) and reasonably satisfactory to Xxxxx Enterprises (it being
understood that no such pay-off letters, termination statements and
releases shall be required to be delivered in the absence of repayment by
Xxxxx Enterprises of the relevant underlying Indebtedness of the Turecamo
Entities; PROVIDED, HOWEVER, that in no event shall this Section 6(a)(xv)
be construed to require repayment by the Turecamo Entities or Xxxxx
Enterprises of any guarantees by any of the Turecamo Entities of any
Indebtedness or other obligations of the Related Parties, as to which
Section 6(a)(xxv) shall apply);
(xvi) Xxxxx Enterprises shall have received UCC, judgment lien
and tax lien searches with respect to the Turecamo Stockholders and the
Turecamo Entities, the results of which indicate no liens on the Turecamo
Stock or on the assets of the Turecamo Entities (it being understood that
if the results of lien searches reveal liens with respect to Indebtedness
of the Turecamo Entities that will be paid off and terminated at Closing
(all such Indebtedness listed on Sections (m) and (n) of the Turecamo
Disclosure Schedule) or liens which are satisfactory to the lender(s) to
Xxxxx Enterprises in their sole discretion, the presence of such liens
shall not negate satisfaction of this condition 6(a)(xvi));
(xvii) each of the Turecamo Entities shall have delivered (i)
copies of the Certificate of Incorporation of each Turecamo Entity,
including all amendments thereto, certified by the Secretary of State of
the state of its jurisdiction of incorporation; (ii) certificates from the
Secretary of State of the state of its jurisdiction of incorporation to the
effect that each Turecamo Entity is in good standing and subsisting in such
jurisdiction and listing all charter documents of the Company on file in
such state; (iii) a certificate from the Secretary of State or other
appropriate official in each state in which each Turecamo Entity is
qualified to do business to the effect that each Turecamo Entity is in good
standing in such state; and (iv) a certificate as to the Tax status of each
Turecamo Entity from the appropriate official in the state of its
jurisdiction of incorporation and each state in which each Turecamo Entity
is qualified to do business, in each case, dated as of a date not more than
five days prior to the Closing Date.
(xviii) Xxxxx Enterprises shall have obtained on terms and
conditions reasonably satisfactory to Xxxxx Enterprises financing in the
amount set forth in the draft Commitment Letter, dated July 9, 1998,
attached hereto as Schedule 6(a)(xviii).
(xix) Columbia Coastal shall have executed and delivered a right
of first refusal agreement, in form and substance reasonably satisfactory
to Xxxxx Enterprises, pursuant to which Columbia Coastal shall agree that
Xxxxx Enterprises and its Subsidiaries shall have a first refusal right to
provide all of the tug services requirements of Columbia Coastal on market
terms (it being understood that neither Xxxxx Enterprises nor Xxxxx have
reviewed the Towage Agreement between Columbia Coastal Transport and
Maritime, as executed by Maritime on June 15, 1998 and countersigned by
Columbia Coastal Transport on July 27, 1998, and that they do not hereby
acknowledge whether such Towage Agreement is reasonably satisfactory and
that
it is possible that such right of first refusal agreement may amend,
supplement, replace or terminate such Towage Agreement);
(xx) the relevant parties shall have executed amendments, waivers
or terminations of any Contracts listed on Section (o) and Section (v) of
the Turecamo Disclosure Schedule in order to ensure that such Contracts are
on arms'-length terms or are terminated, as applicable;
(xxi) each Turecamo Stockholder and the Escrow Agent (as
applicable) shall have executed and delivered the Stockholders Agreement,
the Cash Escrow Agreement and the Stock Escrow Agreement and each Turecamo
Stockholder (and each spouse thereof who is an employee of a Turecamo
Entity), Columbia Coastal, Turecamo Properties, Ltd. and a newly formed
Turecamo entity (the "DISTRIBUTION ENTITY", and together with each Turecamo
Stockholder, Columbia Coastal, and Turecamo Properties, Ltd., the "RELATED
PARTIES") shall have executed a Release in the form of Exhibit E attached
hereto;
(xxii) the Restated Certificate shall have been accepted for
filing by the Secretary of State of the State of Delaware;
(xxiii) the Balance Sheet Distributions shall have been effected
in a manner and pursuant to the agreements (collectively, the "DISTRIBUTION
AGREEMENT") reasonably satisfactory to Xxxxx Enterprises, including that
the assets being distributed are accepted by the Distribution Entity,
subject to all Liabilities associated therewith;
(xxiv) Xxxxx Enterprises shall be reasonably satisfied that
neither Xxxxx Enterprises nor any of the Turecamo Entities will be subject
to or responsible for any Excluded Liabilities (it being understood that,
upon request by the Turecamo Entities, Xxxxx Enterprises shall, prior to
Closing, provide updates as to the progress of any analysis of the Excluded
Liabilities);
(xxv) the relevant Related Parties, the Turecamo Entities and the
relevant lending institutions or counterparties shall have executed and
delivered releases or terminations, at no cost to the Turecamo Entities or
to Xxxxx Enterprises, with respect to all guarantees of Indebtedness or
other obligations of the Related Parties by the Turecamo Entities;
(xxvi) all agreements between the Related Parties and the
Turecamo Entities or among the Related Parties, the Turecamo Entities and
any third party (other than agreements delivered at the Closing or
agreements for the provision of services at arms-length terms or pursuant
to the agreement referred to in clause (xix) above) shall have been
terminated;
(xxvii) Xxxxx Enterprises and the Turecamo Entities shall have
received written confirmation, in form and substance reasonably
satisfactory to Xxxxx Enterprises, from Columbia Coastal that the Turecamo
Entities do not owe any amounts to Columbia Coastal as of the Closing,
except for amounts that may be owed to Columbia Coastal in connection with
the claims or litigation disclosed on Exhibit A to the Release by Columbia
Coastal attached as Exhibit E hereto;
(xxviii) the White Stack Stockholders' Agreement, dated December,
1983, among the Turecamo Stockholders, shall have been terminated;
(xxix) any advance to Xxxx Xxxxxxxx, Xx. or any Related Party
shall have been paid in full, or arrangements for the payment in full of
such amount at the Closing shall have otherwise
been made;
(xxx) Xxxxx Enterprises shall have received acknowledgement from
the Turecamo Entities that the insurance policies listed in Section (q) of
the Turecamo Disclosure Schedule will continue in full force and effect
after giving effect to the transactions contemplated hereby (or, in the
case of Protection and Indemnity and Hull insurance, substantially
equivalent replacement coverage reasonably satisfactory to Xxxxx
Enterprises shall be in effect); and
(xxxi) all actions to be taken by the Turecamo Stockholders and
the Turecamo Entities in connection with consummation of the transactions
contemplated hereby and all certificates, opinions, instruments, and other
documents required to effect the transactions contemplated hereby will be
reasonably satisfactory in form and substance to Xxxxx Enterprises.
Xxxxx Enterprises and the Xxxxx Stockholders may waive any condition specified
in this Section 6(a) if they execute a written instrument so stating at or prior
to the Closing.
(b) CONDITIONS TO OBLIGATION OF THE TURECAMO STOCKHOLDERS. The
obligation of the Turecamo Stockholders to consummate the transactions to be
performed by them in connection with the Closing is subject to satisfaction of
the following conditions:
(i) the representations and warranties set forth in Sections
3(c), (d) and (e) above shall be true and correct in all material respects
at and as of the Closing Date (other than representations and warranties
which speak as of another date, which shall be true and correct as of such
date);
(ii) Xxxxx Enterprises, Xxxxx and the Xxxxx Stockholders shall
have performed and complied with all of their respective covenants
hereunder through the Closing;
(iii) no action, suit, or proceeding shall be pending or, to
the Knowledge of the Parties, threatened before any Governmental Authority
or before any arbitrator wherein an unfavorable injunction, judgment,
order, decree, ruling, or charge would (A) prevent consummation of any of
the transactions contemplated by this Agreement or by the Ancillary
Agreements or (B) cause any of the transactions contemplated by this
Agreement or by the Ancillary Agreements to be rescinded following
consummation, or (C) affect materially adversely the right of Xxxxx
Enterprises to own the Turecamo Stock, the Xxxxx Stock or the stock of any
of the Subsidiaries of Xxxxx and to control any of the Turecamo Entities,
Xxxxx or any Subsidiaries of Xxxxx (or any of their respective assets), or
(D) affect materially adversely the right of any of the Turecamo Entities,
Xxxxx or any Subsidiaries of Xxxxx or Xxxxx Enterprises to own its assets
and to operate its businesses, or (E) be materially burdensome to Xxxxx
Enterprises or any of its Subsidiaries or any of the Turecamo Entities (and
no such injunction, judgment, order, decree, ruling, or charge shall be in
effect);
(iv) Xxxxx Enterprises, Xxxxx and the Xxxxx Stockholders shall
have received all of the material third party consents specified in Section
4(b)(ii), Section 4(b)(iii), Section 4(b)(v), and Section 4(b)(vii) (only
as to authorizations, consents, and approvals to be given, made or obtained
by Xxxxx Enterprises, Xxxxx and its Subsidiaries or the Xxxxx
Stockholders);
(v) Xxxxx Enterprises, Xxxxx and Xxxxx'x Subsidiaries shall
have received all authorizations, consents, and approvals of the
Governmental Authorities referred to in Section 4(b)(v) to be procured
by them, and none of the terms or conditions of any such authorization,
consent
or approval shall (A) prevent consummation of any of the transactions
contemplated by this Agreement or by the Ancillary Agreements, (B) cause
any of the transactions contemplated by this Agreement or by the
Ancillary Agreements to be rescinded following consummation, (C) affect
materially adversely the right of Xxxxx Enterprises to own the Turecamo
Stock, the Xxxxx Stock or the stock of any of the Subsidiaries of Xxxxx
and to control any of the Turecamo Entities, Xxxxx or any Subsidiaries
of Xxxxx (or any of their respective assets), (D) affect materially
adversely the right of any of the Turecamo Entities, Xxxxx or any
Subsidiaries of Xxxxx or Xxxxx Enterprises to own its assets and to
operate its businesses, or (E) be materially burdensome to Xxxxx
Enterprises or any of its Subsidiaries or any of the Turecamo Entities;
(vi) (A) Xxxxx Enterprises and Xxxxx shall have delivered to the
Turecamo Stockholders officers' certificates of the Chairman, President and
Vice President-Finance and Administration of each of Xxxxx Enterprises and
Xxxxx to the effect that each of the conditions specified above in Section
6(b)(i)-(v) is satisfied in all respects and (B) each Xxxxx Stockholder
shall have delivered to the Turecamo Stockholders certificates to the
effect that each of the conditions specified in Section 6(b)(i)-(iv), as it
applies to him, her or it, is satisfied in all respects;
(vii) no action shall have been instituted by the Department
of Justice or Federal Trade Commission or any state attorney general or
other state official having jurisdiction challenging or seeking to enjoin
the consummation of such transactions, which action shall not have been
withdrawn or terminated;
(viii) the Turecamo Stockholders shall have received from Xxxx
Xxxxx & Xxxxxxx LLP, counsel to Xxxxx Enterprises, Xxxxx and the Xxxxx
Stockholders, an opinion in form and substance as set forth in Exhibit H
attached hereto, addressed to the Turecamo Stockholders, and dated as of
the Closing Date;
(ix) Xxxxx Enterprises shall have executed each of the employment
and non-competition agreements in the form of Exhibits C-1 through C-4
attached hereto;
(x) the Turecamo Stockholders shall have received from employees
of the Turecamo Entities assessments with respect to the Xxxxx Vessels in
substance reasonably satisfactory to the Turecamo Stockholders;
(xi) there shall not have been any occurrence, event, incident,
action, failure to act, or transaction since the Most Recent Fiscal Year
End which has had or is reasonably likely to cause a Xxxxx Material Adverse
Effect;
(xii) Xxxxx shall have delivered (i) copies of its and Xxxxx
Towing's Certificate of Incorporation, including all amendments thereto,
certified by the Secretary of State of the state of Delaware; (ii)
certificates from the Secretary of State of the state of Delaware to the
effect that each of Xxxxx and Xxxxx Towing is in good standing and
subsisting in such jurisdiction and listing all charter documents of Xxxxx
and Xxxxx Towing on file in such state; (iii) a certificate from the
Secretary of State or other appropriate official in each state in which
each of Xxxxx and Xxxxx Towing is qualified to do business to the effect
that each of Xxxxx and Xxxxx Towing is in good standing in such state; and
(iv) a certificate as to the Tax status of each of Xxxxx and Xxxxx Towing
from the appropriate official in the state of Delaware and each state in
which each of Xxxxx and Xxxxx Towing is qualified to do business, in each
case, dated
as of a date not more than five days prior to the Closing Date;
(xiii) Xxxxx Enterprises shall have obtained financing on terms
and conditions substantially similar to those set forth in Schedule
6(a)(xviii) hereto;
(xiv) Xxxxx Enterprises, the Xxxxx Stockholders, each holder of
options to purchase Xxxxx Enterprises Common Stock and the Escrow Agent, as
applicable, shall have executed and delivered the Stockholders Agreement,
the Cash Escrow Agreement and the Stock Escrow Agreement;
(xv) the Restated Certificate shall have been accepted for
filing by the Secretary of State of the State of Delaware;
(xvi) arrangements reasonably satisfactory to the Turecamo
Stockholder Representative shall have been made with Xxxx X. Xxxxxxxxxxx
and Xxxxxx X. Xxxxx, Xx., on terms and conditions consistent with those set
forth on Schedule 6(b)(xvi) hereto; and
(xvii) all actions to be taken by Xxxxx Enterprises, Xxxxx and
the Xxxxx Stockholders in connection with consummation of the
transactions contemplated hereby and all certificates, opinions,
instruments, and other documents required to effect the transactions
contemplated hereby will be reasonably satisfactory in form and
substance to the Turecamo Stockholders.
The Turecamo Stockholders may waive any condition specified in this Section 6(b)
if they execute a written instrument so stating at or prior to the Closing.
7. REMEDIES FOR BREACHES OF THIS AGREEMENT.
(a) SURVIVAL OF REPRESENTATIONS AND WARRANTIES.
(i) All of the representations and warranties of the Turecamo
Entities and the Turecamo Stockholders contained in Annexes I and II shall
survive the Closing hereunder (even if Xxxxx Enterprises or Xxxxx knew or
had reason to know of any misrepresentation or breach of warranty at the
time of Closing) and continue in full force and effect for a period of two
years thereafter; PROVIDED, HOWEVER, that the representations and
warranties of each Turecamo Stockholder contained in Section (a) of Annex I
shall survive the Closing (even if the damaged Party knew or had reason to
know of any misrepresentation or breach of warranty at the time of Closing)
and continue in full force and effect forever thereafter (subject to any
applicable statutes of limitations).
(ii) All of the representations and warranties of Xxxxx
Enterprises, Xxxxx and the Xxxxx Stockholders contained in Annexes III-V
shall survive the Closing hereunder (even if the Turecamo Stockholders knew
or had reason to know of any misrepresentation or breach of warranty at the
time of Closing) and continue in full force and effect for a period of two
years thereafter; PROVIDED, HOWEVER, that the representations and
warranties of each Xxxxx Stockholder contained in Section (a) of Annex III
shall survive the Closing (even if the damaged Party knew or had reason to
know of any misrepresentation or breach of warranty at the time of Closing)
and continue in full force and effect forever thereafter (subject to any
applicable statutes of limitations).
(b) INDEMNIFICATION BY THE TURECAMO STOCKHOLDERS.
(i) LIMITATIONS:
(A) DEDUCTIBLE. Notwithstanding the following provisions of
this Section 7(b), from and after the Closing, the Turecamo
Stockholders shall only be responsible for any Adverse Consequences
attributable to a breach or alleged breach described in this Section
7(b) or any Excluded Liabilities if and to the extent that the sum of
all Adverse Consequences attributable to breaches or alleged breaches
described in this Section 7(b) for which the Turecamo Stockholders or
any of them are responsible (other than breaches or alleged breaches
arising out of fraud or willful misrepresentation or breach and other
than breaches or alleged breaches of the representations and
warranties contained in Section (a) of Annex I, as to all of which the
$300,000 deductible described in this paragraph shall not apply) plus
Excluded Liabilities shall exceed $300,000 in the aggregate (it being
understood that if such Adverse Consequences exceed $300,000 in the
aggregate, the Turecamo Stockholders shall not be responsible for the
first $300,000 of Adverse Consequences), provided that such deductible
shall not apply to Adverse Consequences attributable to any Tax
Liability directly related to the payment or receipt of the Balance
Sheet Distributions (the "TURECAMO STOCKHOLDER TAX LIABILITY"), as to
which Turecamo Stockholder Tax Liability the Turecamo Stockholders
shall have sole responsibility.
(B) CAP. Notwithstanding the following provisions of this
Section 7(b) (other than the proviso at the end of this Section
7(b)(i)(B)), from and after the Closing, the Turecamo Stockholders
shall not be liable for Adverse Consequences attributable to breaches
or alleged breaches described in this Section 7(b) or Excluded
Liabilities to the extent that the sum of all such Adverse
Consequences for which the Turecamo Stockholders are responsible
(other than breaches or alleged breaches arising out of fraud or
willful misrepresentation or breach and other than breaches or alleged
breaches of the representations and warranties contained in Section
(a) of Annex I, as to all of which the cap in this Section 7(b)(i)(B)
shall not be applicable) plus such Excluded Liabilities exceeds
$5,000,000 in the aggregate (in excess of the deductible specified in
Section 7(b)(i)(A)), provided that any Adverse Consequences
attributable to any Turecamo Stockholder Tax Liability, as to which
Turecamo Stockholder Tax Liability the Turecamo Stockholders shall
have sole responsibility, shall not be included in the amounts against
which the cap shall be applicable.
(C) MEANS OF RECOVERY. Any recovery under this Section 7(b)
(other than (i) breaches or alleged breaches of the representations
and warranties contained in Section (a) of Annex I and (ii) any
recovery in respect of any Turecamo Stockholder Tax Liability, as to
all of which this subsection shall not apply) shall only be effected,
FIRST, by recourse against the remaining Escrow Cash Portion in the
Cash Escrow Account, and SECOND, in the event such Cash Escrow Account
is exhausted, by offset against up to an aggregate of $3,000,000 (the
"AGGREGATE OFFSET AMOUNT") otherwise payable to the Turecamo
Stockholders upon exercise of the put/calls, as set forth in Section
6(h) of the Stockholders Agreement, PROVIDED, HOWEVER, that such
offset with respect to each Turecamo Stockholder shall be limited to
such Turecamo Stockholder's PRO RATA share of such Adverse
Consequences (allocated among the Turecamo Stockholders as set forth
on Schedule 1), all in accordance with the terms and conditions of the
Cash Escrow Agreement and the Stockholders Agreement. It is
specifically understood that the Cash Escrow Account may be used, with
respect to all Third Party Claims for which the Turecamo
Stockholders are the Indemnifying Parties, for the reimbursement of
the fees and expenses (including court costs and reasonable
attorneys' fees and expenses) of the Party conducting the defense
of such Third Party Claims in accordance with Section 7(e) hereof.
With respect to each Third Party Claim for which the Turecamo
Stockholders are the Indemnifying Parties, the Cash Escrow Account
may be used for the reimbursement of the fees and expenses of only
one counsel for all of the Turecamo Stockholders.
(ii) In the event that any of the Turecamo Entities breaches (or
in the event that any third party alleges facts that, if true, would mean
that any of the Turecamo Entities has breached) any of their
representations or warranties contained herein (other than (A) a breach or
alleged breach of the representations and warranties contained in Sections
(f), (r), (s), (t), (u) and/or (y) of Annex II, as to which the Turecamo
Stockholders shall ONLY be obligated to indemnify the Xxxxx Enterprises
Indemnified Parties under this Section 7(b) if the Turecamo Entities had
Knowledge of such breach or alleged breach at or prior to the Closing and
(B) other than the representations and warranties in Annex I, as to which
Section 7(b)(iii) shall apply) and, if there is an applicable survival
period pursuant to Section 7(a) above, provided that a Xxxxx Enterprises
Indemnified Party makes a written claim for indemnification against the
Turecamo Stockholders pursuant to Section 10(g) below within such survival
period, then, subject to Section 7(b)(i), each of the Turecamo Stockholders
shall, from and after the Closing, (A) to the extent of the remaining
Escrow Cash Portion, jointly and severally, and (B) to the extent of such
Turecamo Stockholder's PRO RATA share (allocated among the Turecamo
Stockholders as set forth on Schedule 1) of such Adverse Consequences in
excess of the remaining Escrow Cash Portion, severally and not jointly,
indemnify the Xxxxx Enterprises Indemnified Parties from and against such
Adverse Consequences (including Adverse Consequences that the Xxxxx
Enterprises Indemnified Parties may suffer through and after the date of
the claim for indemnification and after the end of the two-year survival
period) attributable to such breach or alleged breach.
(iii) In the event that any of the Turecamo Stockholders
breaches (or in the event that any third party alleges facts that, if true,
would mean that any of the Turecamo Stockholders has breached) any of his
or her representations and warranties in Annex I, and, if there is an
applicable survival period pursuant to Section 7(a) above, provided that
the Xxxxx Enterprises Indemnified Parties make a written claim for
indemnification against such Turecamo Stockholder pursuant to Section 10(g)
below within such survival period, then, subject to Section 7(b)(i), such
Turecamo Stockholder shall, from and after the Closing, severally and not
jointly, indemnify the Xxxxx Enterprises Indemnified Parties from and
against the entirety of any Adverse Consequences that the Xxxxx Enterprises
Indemnified Parties may suffer through and after the date of the claim for
indemnification (including any Adverse Consequences that the Xxxxx
Enterprises Indemnified Parties may suffer after the end of any applicable
survival period) attributable to such breach or alleged breach.
(iv) Subject to Section 7(b)(i), each of the Turecamo
Stockholders shall, from and after the Closing, jointly and severally,
indemnify the Xxxxx Enterprises Indemnified Parties from and against any
Adverse Consequences attributable to any Excluded Liability it being hereby
understood that Xxxxx Enterprises shall only be entitled to indemnification
from the Turecamo Stockholders, subject to the cap, deductible and means of
recovery set forth in Section 7(b)(i).
(c) INDEMNIFICATION AND ADJUSTMENT BY XXXXX ENTERPRISES.
(i) LIMITATIONS.
(A) DEDUCTIBLE. Notwithstanding the following provisions of
this Section 7(c), from and after the Closing, Xxxxx Enterprises shall
only be responsible for any Adverse Consequences attributable to a
breach or alleged breach described in this Section 7(c) if and to the
extent that the sum of all Adverse Consequences attributable to
breaches or alleged breaches described in this Section 7(c) for which
Xxxxx Enterprises is responsible plus all Adverse Consequences
attributable to a breach or alleged breach described in Section 7(d)
for which a Xxxxx Stockholder is responsible (other than breaches or
alleged breaches arising out of fraud or willful misrepresentation or
breach and other than breaches or alleged breaches of the
representations and warranties contained in Section (a) of Annex III,
as to all of which the $300,000 deductible described in this paragraph
shall not apply) shall exceed $300,000 in the aggregate (it being
understood that if such aggregate Adverse Consequences exceed $300,000
in the aggregate, Xxxxx Enterprises shall not be responsible for the
first $300,000 of Adverse Consequences). For ease of administration,
in the event that Adverse Consequences attributable to breaches or
alleged breaches by both Xxxxx Enterprises and the Xxxxx Stockholders
are realized at approximately the same time, such Adverse Consequences
shall be totalled in the following order for purposes of determining
fulfillment of the deductible specified in this Section 7(c)(i)(A)
until such deductible is fulfilled: first, the Adverse Consequences
attributable to breaches or alleged breaches by the Xxxxx Stockholders
shall be taken into account and second, the Adverse Consequences
attributable to breaches or alleged breaches by Xxxxx Enterprises
shall be taken into account.
(B) CAP ON ADJUSTMENTS. Notwithstanding the following
provisions of this Section 7(c), from and after the Closing, Xxxxx
Enterprises shall not be responsible to make adjustments under Section
7(c)(ii)(A) for Adverse Consequences attributable to any breach or
alleged breach described in this Section 7(c) to the extent that the
sum of all Adverse Consequences for which Xxxxx Enterprises is
responsible to make adjustments (other than breaches or alleged
breaches arising out of fraud or willful misrepresentation or breach
and other than breaches or alleged breaches of the representations and
warranties contained in Section (a) of Annex I, as to all of which the
cap in this Section 7(c)(i)(B) shall not be applicable) exceed
$5,000,000 (in excess of the deductible specified in Section
7(c)(i)(A)).
(C) CAP ON INDEMNIFICATION. Notwithstanding the following
provisions of this Section 7(c), from and after the Closing, Xxxxx
Enterprises shall not be liable to indemnify under Section 7(c)(ii)(B)
for Adverse Consequences attributable to any breach or alleged breach
described in this Section 7(c) to the extent that the sum of all
Adverse Consequences for which Xxxxx Enterprises is responsible under
Section 7(c)(ii)(B), plus all Adverse Consequences for which the Xxxxx
Stockholders are responsible to indemnify Xxxxx Enterprises under
Section 7(d) (other than breaches or alleged breaches arising out of
fraud or willful misrepresentation or breach and other than breaches
or alleged breaches of the representations and warranties contained in
Section (a) of Annex III, as to all of which the cap in this Section
7(c)(i)(C) shall not be applicable) exceed $5,000,000 (in excess of
the deductible specified in Section 7(c)(i)(A)).
(ii) In the event that Xxxxx Enterprises or Xxxxx breaches (or in
the event any third party alleges facts that, if true, would mean that
Xxxxx Enterprises or Xxxxx has breached) any of its representations and
warranties contained herein (other than the representations and warranties
of Xxxxx contained in Sections (f), (r), (s), (t), (u) and/or (y) of Annex
V, as to which
Xxxxx Enterprises shall ONLY be obligated to make adjustments and/or
indemnify the Turecamo Stockholders pursuant to this Section 7(c) if
Xxxxx Enterprises or Xxxxx had Knowledge of such breach or alleged
breach at or prior to the Closing), and, if there is an applicable
survival period pursuant to Section 7(a) above, provided that the
Turecamo Stockholder Representative makes a written claim for
indemnification against Xxxxx Enterprises or Xxxxx pursuant to Section
10(g) below within such survival period, then Xxxxx Enterprises shall,
from and after the Closing, have the following obligations:
(A) First, subject to Section 7(c)(i), Xxxxx Enterprises
shall, from and after the Closing, negotiate in good faith with the
Turecamo Stockholder Representative appropriate pro forma reductions
in the Cumulative EBITDA Thresholds set forth in Section 2(g)(iii) in
amounts (subject to Section 7(c)(i)(B)) equal to any actual reductions
in the EBITDA of Xxxxx Enterprises and its Subsidiaries during the
Earnout Period which are directly attributable to such breach. If
Xxxxx Enterprises and the Turecamo Stockholder Representative are
unable to agree upon any such reductions, then they shall forthwith
refer the dispute to an Arbitrating Accountant for resolution,
pursuant to the procedures set forth in Section 2(g)(ii)(C).
(B) Second, subject to Section 7(c)(i) but in addition to
Section 7(c)(ii)(A), Xxxxx Enterprises shall, from and after the
Closing, indemnify the Turecamo Stockholders from and against 29% of
any Adverse Consequences that Xxxxx Enterprises may suffer through and
after the date of the claim for indemnification (including any Adverse
Consequences that the Turecamo Stockholders may suffer after the end
of any applicable survival period) resulting from, arising out of,
relating to, in the nature of, or caused by such breach (or such
alleged breach). Any such indemnity obligation of Xxxxx Enterprises
under this Section 7(c)(ii)(B) shall be satisfied solely by the
issuance to the Turecamo Stockholders of shares of Series A Preferred
Stock of Xxxxx Enterprises having identical terms as, and which are
PARI PASSU with, the shares of Series A Preferred Stock being issued
to the Xxxxx Stockholders at the Closing, in an amount equal to 29% of
such Adverse Consequences. When issued, such shares shall be duly
authorized, validly issued, fully paid, nonassessable and free from
preemptive or other rights of third parties. The aggregate "Original
Cost" (as defined in the Restated Certificate) of all such shares of
Preferred Stock issued to the Turecamo Stockholders shall not exceed
$1,450,000 and the maximum indemnification obligation of Xxxxx
Enterprises under this Section 7(c)(ii)(B) shall be to issue shares of
Series A Preferred Stock having an aggregate Original Cost equal to
$1,450,000 (representing 29% of the $5,000,000 cap set forth in
Section 7(c)(i)(C)).
(d) INDEMNIFICATION BY XXXXX STOCKHOLDERS.
(i) LIMITATIONS.
(A) DEDUCTIBLE. Notwithstanding the following provisions of
this Section 7(d), from and after the Closing, the Xxxxx Stockholders
shall only be responsible for any Adverse Consequences attributable to
a breach or alleged breach described in this Section 7(d) if and to
the extent that the sum of all Adverse Consequences attributable to a
breach or alleged breach described in this Section 7(d) for which the
Xxxxx Stockholders or any of them are responsible plus all Adverse
Consequences attributable to a breach or alleged breach described in
Section 7(c) for which Xxxxx Enterprises is responsible (other than
breaches or alleged breaches arising out of fraud or willful
misrepresentation or breach and other than breaches or alleged
breaches of the representations and warranties contained in Section
(a) of Annex III, as to all of
which the $300,000 deductible described in this paragraph shall
not apply) shall exceed $300,000 in the aggregate (it being
understood that if such aggregate Adverse Consequences exceed
$300,000, the Xxxxx Stockholders shall not be responsible to
indemnify Xxxxx Enterprises under Section 7(d)(ii) for the first
$300,000 of Adverse Consequences). For ease of administration, in
the event that Adverse Consequences attributable to breaches or
alleged breaches by both Xxxxx Enterprises and the Xxxxx
Stockholders are realized at approximately the same time, such
Adverse Consequences shall be totalled in the following order for
purposes of determining fulfillment of the deductible specified in
this Section 7(d)(i)(A) until such deductible is fulfilled: first,
the Adverse Consequences attributable to breaches or alleged
breaches by the Xxxxx Stockholders shall be taken into account and
second, the Adverse Consequences attributable to breaches or
alleged breaches by Xxxxx Enterprises shall be taken into account.
(B) CAP. From and after the Closing, the Xxxxx Stockholders
shall not be liable to indemnify Xxxxx Enterprises under Section
7(d)(ii) for Adverse Consequences attributable to any breach or
alleged breach described in this Section 7(d) to the extent that the
sum of the Adverse Consequences for which the Xxxxx Stockholders are
responsible to indemnify Xxxxx Enterprises under this Section 7(d)
plus the Adverse Consequences attributable to any breach or alleged
breach described in Section 7(c) for which Xxxxx Enterprises is
responsible to indemnify the Turecamo Stockholders under Section 7(c)
(other than breaches or alleged breaches arising out of fraud or
willful misrepresentation or breach and other than breaches or alleged
breaches of the representations and warranties contained in Section
(a) of Annex III, as to all of which the cap in this Section
7(d)(i)(B) shall not be applicable) exceed $5,000,000 (in excess of
the deductible specified in Section 7(d)(i)(A)). Except for breaches
or alleged breaches of the representations and warranties contained in
Section (a) of Annex III, as to which this sentence shall not be
applicable, in no event shall any Xxxxx Stockholder be liable under
this Section 7(d) for more than that percentage of the cap as
corresponds to his, her or its percentage stock ownership of Xxxxx, as
amongst the Xxxxx Stockholders.
(ii) In the event that one or more executive officers or
Directors of Xxxxx Enterprises becomes aware that a Xxxxx Stockholder has
breached (or in the event any third party alleges facts that, if true,
would mean that such Xxxxx Stockholder has breached) any of his, her or its
representations and warranties contained in Annex III, and, if there is an
applicable survival period pursuant to Section 7(a) above, the Board of
Directors of Xxxxx Enterprises shall provide prompt written notice of such
breach or alleged breach to the Turecamo Stockholder Representative, and
provided that the Turecamo Stockholder Representative makes a written
demand for indemnification to Xxxxx Enterprises pursuant to Section 10(g)
below within such survival period, such Xxxxx Stockholder shall, severally
and not jointly, subject to Section 7(d)(i), from and after the Closing,
indemnify Xxxxx Enterprises from and against the entirety of any Adverse
Consequences that Xxxxx Enterprises may suffer through and after the date
of the claim for indemnification (including any Adverse Consequences that
Xxxxx Enterprises may suffer after the end of any applicable survival
period) to the extent resulting from, arising out of, relating to, in the
nature of, or caused by such breach by such Xxxxx Stockholder (or the
alleged breach) and Xxxxx Enterprises shall diligently enforce such
indemnification obligation.
(e) MATTERS INVOLVING THIRD PARTIES.
(i) If any third party shall notify any party entitled to
indemnification or adjustment under this Section 7 (the "INDEMNIFIED
PARTY") of any matter (a "THIRD PARTY CLAIM") which may give
rise to a claim for indemnification or adjustment against any other
Party (the "INDEMNIFYING PARTY") under this Section 7, then the
Indemnified Party shall notify each Indemnifying Party thereof in
writing together with a statement of any available information regarding
such claim, within 20 days after learning of such claim (or such shorter
time as may be necessary to give the Indemnifying Party a reasonable
opportunity to respond to such claim); PROVIDED, HOWEVER, that no delay
on the part of the Indemnified Party in notifying any Indemnifying Party
shall relieve the Indemnifying Party from any obligation hereunder
unless (and then solely to the extent that) the Indemnifying Party
thereby is prejudiced.
(ii) Any Indemnifying Party will have the right to defend the
Indemnified Party against the Third Party Claim with counsel of its choice
reasonably satisfactory to the Indemnified Party so long as (A) the
Indemnifying Party notifies the Indemnified Party in writing within 20 days
after the Indemnified Party has given notice of the Third Party Claim that
the Indemnifying Party will, subject to the limitations (including
deductibles, caps and other provisions) set forth in this Section 7,
indemnify the Indemnified Party from and against the entirety of any
Adverse Consequences that the Indemnified Party may suffer resulting from,
arising out of, relating to, in the nature of, or caused by the Third Party
Claim, (B) if Xxxxx Enterprises is the Indemnified Party, the Third Party
Claim involves only money damages and/or does not seek an injunction or
other equitable relief that Xxxxx Enterprises reasonably believes will
substantially impair its business, assets or operations, taken as a whole,
(C) settlement of, or an adverse judgment with respect to, the Third Party
Claim is not, in the reasonable good faith judgment of Xxxxx Enterprises,
likely to establish a precedential custom or practice materially adverse to
the continuing business interests of Xxxxx Enterprises, taken as a whole,
(D) the Third Party Claim does not involve any suit, action, claim,
proceeding or investigation by any material customer of Xxxxx Enterprises
taken as a whole with respect to business conducted by the Turecamo
Entities prior to the Closing as to which Xxxxx Enterprises has reasonably
determined that it is necessary for Xxxxx Enterprises to conduct such
defense in order not to materially impair the relationship of Xxxxx
Enterprises and its Subsidiaries with such material customer and (E) the
Indemnifying Party conducts the defense of the Third Party Claim in a
reasonably active and diligent fashion.
(iii) Regardless of which party is conducting the defense of the
Third Party Claim in accordance with Section 7(e)(ii) above, (A) the other
Party may retain separate counsel of its own choosing at its sole cost and
expense and participate in the defense of the Third Party Claim (including
the right to consult with (but not to instruct) counsel to the defending
party regarding the defense, to be provided access to all appropriate
records and materials relating to such defense and to be provided prompt
notice of all material developments in connection with such defense), (B)
the Indemnified Party will not consent to the entry of any judgment or
enter into any settlement or compromise with respect to the Third Party
Claim without the prior written consent of the Indemnifying Party (not to
be withheld unreasonably), and (C) the Indemnifying Party will not consent
to the entry of any judgment or enter into any settlement or compromise
with respect to the Third Party Claim without the prior written consent of
the Indemnified Party (not to be withheld unreasonably) if such judgment,
settlement or compromise would lead to liability (civil or criminal) or
create any other financial or other obligation on the part of the
Indemnified Party for which the Indemnified Party is not entitled to
indemnification hereunder or if the effect of such judgment, settlement or
compromise would be to permit any injunctive relief against the Indemnified
Party. If an offer is made to settle a Third Party Claim, which offer the
Indemnifying Party desires to accept, the Indemnifying Party will give at
least five (5) days' prior written notice to the Indemnified Party to that
effect, setting forth in reasonable detail
the terms and conditions of any such settlement (the "SETTLEMENT
NOTICE"). If the Indemnified Party objects to such offer within ten
(10) calendar days after its receipt of such Settlement Notice, the
Indemnified Party may continue to contest or defend such Third Party
Claim and, in such event, the maximum liability of the Indemnifying
Party as to such Third Party Claim will not exceed the amount of such
settlement offer described in the Settlement Notice.
(iv) In the event any of the conditions in Section 7(e)(ii) above
is or becomes unsatisfied, however, (A) subject to Section 7(e)(iii), the
Indemnified Party may defend against the Third Party Claim in any manner it
reasonably may deem appropriate provided that if the Indemnified Party
undertakes to defend against such Third Party Claim, it shall do so in a
reasonably active and diligent manner, and may consent to the entry of any
judgment or enter into any settlement or compromise with respect to the
Third Party Claim with the prior written consent of the Indemnifying Party
(not to be withheld unreasonably), (B) subject to the monetary limitations
in this Section 7, the defending party may be reimbursed out of the Cash
Escrow Account promptly and periodically for the costs of defending against
the Third Party Claim (including attorneys' fees and expenses) in
accordance with the Cash Escrow Agreement, and (C) the Indemnifying Parties
will remain responsible for any Adverse Consequences the Indemnified Party
may suffer resulting from, arising out of, relating to, in the nature of,
or caused by the Third Party Claim to the fullest extent provided in (and
subject to the limitations set forth in) this Section 7. With respect to
each Third Party Claim for which the Turecamo Stockholders are the
Indemnifying Parties, the Cash Escrow Account may be used for the
reimbursement of the fees and expenses of only one counsel for all of the
Turecamo Stockholders.
(v) Any judgment entered or settlement or compromise agreed upon
in the manner provided herein shall be binding upon the Indemnifying Party,
and shall be conclusively deemed to be an obligation with respect to which
the Indemnified Party is entitled to prompt indemnification hereunder,
subject to the Indemnifying Party's right to appeal an appealable judgment
or order and subject to the limitations in this Section 7. To the extent
that the consent or approval of either the Indemnifying Party or the
Indemnified Party is required in this Section 7(e), any such consent or
approval shall not be unreasonably withheld and will be deemed given in the
absence of a written response within twenty (20) days of any written
request therefor.
(f) LIMITATION ON REMEDIES.
(i) The amount of any Adverse Consequences payable hereunder
shall be net of any Tax benefit derived (or reasonably expected to be
derived) by the Indemnified Party on account of such Adverse
Consequences after taking into account any income or other Tax that
the Indemnified Party may incur as a result of the receipt of any
indemnification payment.
(ii) The parties shall use reasonable efforts to collect the
proceeds of any insurance which would have the effect of reducing an
Adverse Consequence (in which case such proceeds shall reduce such
Adverse Consequences) and, if indemnification payments shall have been
received prior to the collection of such proceeds, shall remit to the
Escrow Agent or Indemnifying Party, as the case may be, the amount of
such proceeds (net of the cost of collection thereof) to the extent of
indemnification payments received in respect of such Adverse
Consequences. To the extent that any Adverse Consequences are reduced
by receipt of payment (i) under insurance policies, or (ii) from third
parties not affiliated with the Indemnified Party, such payments (net
of the expenses of the recovery thereof) shall be
credited against such Adverse Consequences.
(iii) The Indemnifying Party shall be subrogated to the
Indemnified Party's rights of recovery to the extent of any Adverse
Consequences actually satisfied by the Indemnifying Party; PROVIDED,
HOWEVER, that, if the Turecamo Stockholders are the Indemnifying
Parties, such right of subrogation shall be available unless Xxxxx
Enterprises shall have reasonably concluded that exercise of the right
of subrogation would materially and adversely affect a material
business relationship of Xxxxx Enterprises and its Subsidiaries and
Affiliates taken as a whole. Subject to the foregoing proviso, the
Indemnified Party shall execute and deliver such instruments and
papers as are necessary to assign such rights and assist in the
exercise thereof, including access at reasonable business hours upon
prior notice to relevant books and records of the Indemnified Party.
(iv) (A) Notwithstanding anything in this Agreement to the
contrary, no claim for indemnification may be made by a Xxxxx
Enterprises Indemnified Party and no indemnification shall be required
of the Turecamo Stockholders to the extent that the Adverse
Consequences sustained or incurred by such Xxxxx Enterprises
Indemnified Party for which indemnification is sought were
specifically accrued for as a liability on the Balance Sheet of the
Turecamo Entities as of December 31, 1997 (as evidenced by the records
and work papers supporting such Balance Sheet).
(B) Notwithstanding anything in this Agreement to the
contrary, no claim for indemnification may be made by a Turecamo
Stockholder and no indemnification shall be required of Xxxxx
Enterprises to the extent that the Adverse Consequences sustained or
incurred by such Turecamo Stockholder or Xxxxx Enterprises for which
indemnification is sought were specifically accrued for as a liability
on the balance sheets included within the Most Recent Xxxxx SEC
Reports (as evidenced by the records and work papers supporting such
balance sheets).
(v) No Party(ies) entitled to indemnification hereunder shall
recover more than once in respect of the same Adverse Consequences,
provided that the same Adverse Consequences may result in both
indemnification and adjustment of the EBITDA Threshold pursuant to Sections
7(c) and 7(d).
(g) INDEMNIFICATION OF DIRECTORS AND OFFICERS. To the extent that
each of the Turecamo Entities' articles or certificate of incorporation,
by-laws, resolutions of its board of directors or stockholders, or other
corporate acts, agreements or instruments, each as in effect on the date
hereof, confer rights to indemnification, contribution and/or advancement of
expenses of its directors, officers, agents and others, each of the Turecamo
Entities shall, and Xxxxx Enterprises shall cause each of the Turecamo
Entities to, continue in full force and effect, for a period of seven years
from and after the Closing, all such rights, which rights may not be
diminished by subsequent modification or amendment.
(h) OTHER INDEMNIFICATION PROVISIONS. Notwithstanding Section 7(g),
each of the Turecamo Stockholders hereby agrees that he or she will not make any
claim for indemnification against any of Xxxxx Enterprises or its Subsidiaries
by reason of the fact that he or she was a director, officer, employee, or agent
of any such entity or was serving at the request of any such entity as a
partner, trustee, director, officer, employee, or agent of another entity
(whether such claim is for judgments, damages, penalties, fines, costs, amounts
paid in settlement, losses, expenses, or otherwise and whether such claim is
pursuant to any statute, charter document, bylaw, agreement, or otherwise) with
respect to
any action, suit, proceeding, complaint, claim, or demand with respect to
which a Xxxxx Enterprises Indemnified Party is entitled to indemnification
hereunder (disregarding, for purposes of this Section 7(h), all deductibles
and caps in Section 7(b)(i)); provided, that pending the resolution of
whether a Xxxxx Enterprises Indemnified Party is so entitled to
indemnification, Xxxxx Enterprises shall undertake the defense of such
Turecamo Stockholder if requested to do so by such Turecamo Stockholder.
(i) EXCLUSIVITY. The foregoing provisions of this Section 7 are the
sole and exclusive means of recovery of a Party hereto or any other Person
entitled to indemnification under this Section 7, and shall preclude the
exercise of any other rights or remedies available to a Party hereto or any
other Person hereunder at law or in equity, except in the case of (i) fraud,
(ii) willful misrepresentation or breach or (iii) a breach or alleged breach of
the covenants of a Party contained herein, in which case the foregoing
provisions of this Section 7 shall NOT be exclusive, but shall be in addition to
any other rights or remedies to which a Party hereto or any other Person
entitled to indemnification under this Section 7 and his, her or its assigns, as
the case may be, may be entitled at law or in equity.
(j) COVERED PERSONS. The obligations of the Turecamo Stockholders
under this Section 7 shall extend, upon the same terms and conditions, to Xxxxx
Enterprises, Xxxxx, their Subsidiaries and to each person, if any, who controls
Xxxxx Enterprises, Xxxxx, and their Subsidiaries and each of their respective
assigns, within the meaning of Section 15 of the Securities Act or Section 20 of
the Securities Exchange Act, and to directors, officers, employees, consultants
and agents of Xxxxx Enterprises, Xxxxx, their Subsidiaries and each of their
respective assigns, and their controlling persons (collectively, the "XXXXX
ENTERPRISES INDEMNIFIED PARTIES"). Notwithstanding the foregoing, only Xxxxx
Enterprises shall be entitled to receive any indemnification pursuant to Section
7(b) for any diminution in value of Xxxxx Enterprises and its Subsidiaries
(including the Turecamo Entities) attributable to a breach or alleged breach
subject to indemnification under Section 7(b), and no Xxxxx Stockholder shall be
entitled to receive indemnification for any such diminution in value.
8. TAX MATTERS. The following provisions shall govern the allocation of
responsibility as between Xxxxx Enterprises and the Turecamo Stockholders for
certain tax matters following the Closing Date:
(a) TAX PERIODS ENDING ON OR BEFORE THE CLOSING DATE. The Turecamo
Stockholders shall prepare or cause to be prepared and file or cause to be filed
all Tax Returns for the Turecamo Entities for all periods ending on or prior to
the Closing Date which are filed after the Closing Date including all requisite
state and federal income Tax Returns for the Turecamo Entities for their 1997
fiscal year and for the period from January 1, 1998 through and including the
day prior to the Closing Date. The Turecamo Stockholders shall permit Xxxxx
Enterprises to review and comment on each such Tax Return described in the
preceding sentence prior to filing.
(b) TAX PERIODS BEGINNING BEFORE AND ENDING AFTER THE CLOSING
DATE. Xxxxx Enterprises shall prepare or cause to be prepared and file or
cause to be filed all Tax Returns for the Turecamo Entities for Tax periods
which begin before the Closing Date and end after the Closing Date. Xxxxx
Enterprises shall permit the Turecamo Stockholder Representative to review
and comment on each such Tax Return described in the preceding sentence prior
to filing. The Turecamo Stockholders shall be solely responsible for the
payment of all Taxes based upon or related to income or receipts of the
Turecamo Entities (except to the extent such Taxes are based upon or related
to income or receipts subject to tax in a jurisdiction in which the relevant
Turecamo Entity is not a pass-through entity or is subject to tax on
"built-in gains" under Section 1374 of the Code or comparable provisions of
the applicable Tax laws of such jurisdiction, provided such exception shall
not relieve the Turecamo
Stockholders from responsibility for Taxes directly related to payment or
receipt of the Balance Sheet Distributions to the extent the Xxxxx Enterprises
Indemnified Parties are entitled to indemnification therefor under Section 5(e))
which relate to the portion of such Taxable Period ending on the day prior to
the Closing Date. For purposes of the preceding sentence, such Taxes for the
portion of such tax period up to and including the day prior to the Closing Date
and for the period from and after the Closing Date shall be determined on the
basis of an interim closing of the books as of the Closing Date, in the manner
prescribed by (or, if not prescribed, consistent with) Sections 1362(e)(1) and
1362 (e)(6)(D) of the Code, as if such taxable period consisted of one taxable
period ending on the day prior to the Closing Date followed by a taxable period
beginning on the Closing Date, provided that the Turecamo Stockholders shall be
solely responsible for all Taxes directly related to payment or receipt of the
Balance Sheet Distributions (whether made prior to, on or after the Closing
Date).
(c) COOPERATION ON TAX MATTERS.
(i) Xxxxx Enterprises and its Subsidiaries and the Turecamo
Stockholders shall cooperate fully, as and to the extent reasonably
requested by the other Parties, in connection with the filing of Tax
Returns pursuant to this Section 8 and any audit, litigation or other
proceeding with respect to Taxes. Such cooperation shall include the
retention and (upon the other party's request) the provision of records and
information which are reasonably relevant to any such audit, litigation or
other proceeding and making employees available on a mutually convenient
basis to provide additional information and explanation of any material
provided hereunder. Xxxxx Enterprises and its Subsidiaries and the
Turecamo Stockholders agree (A) to retain all books and records with
respect to Tax matters pertinent to the Turecamo Entities relating to any
taxable period beginning before the Closing Date until the expiration of
the statute of limitations (and, to the extent notified by Xxxxx
Enterprises or the Turecamo Stockholders, any extensions thereof) of the
respective taxable periods, and to abide by all record retention agreements
entered into with any taxing authority, and (B) to give the other Parties
reasonable written notice prior to transferring, destroying or discarding
any such books and records and, if such other party so requests, to allow
such other party to take possession of such books and records in lieu of
destroying or discarding the same.
(ii) Xxxxx Enterprises and the Turecamo Stockholders further
agree, upon request, to use their best efforts to obtain any certificate or
other document from any Governmental Authority or any other Person as may
be necessary to mitigate, reduce or eliminate any Tax that could be imposed
(including, but not limited to, with respect to the transactions
contemplated hereby) without the imposition of a countervailing Tax or loss
of Tax attributes on or by the Party to whom such request is directed.
(iii) Xxxxx Enterprises and the Turecamo Stockholders further
agree, upon request, to provide the other party with all information that
either party may be required to report pursuant to Section 6043 of the Code
and all Treasury Department Regulations promulgated thereunder.
(iv) Xxxxx Enterprises and the Turecamo Stockholders further
agree that neither Party shall make any assertion, take any position or
perform any act which is inconsistent with or contrary to the conclusion
that the Xxxxx Enterprises Common Stock issued to the Turecamo Stockholders
in exchange for the Turecamo Stock qualifies for nonrecognition treatment
under Section 351 of the Code.
(d) TAX SHARING AGREEMENTS. All tax sharing agreements or similar
agreements with
respect to or involving the Turecamo Entities shall be terminated as of the
Closing Date and, after the Closing Date, Xxxxx Enterprises and its
Subsidiaries shall not be bound thereby or have any liability thereunder.
(e) CERTAIN TAXES. All transfer, documentary, sales, use, stamp,
registration and other such Taxes and fees (including any penalties and
interest) arising out of the transfer of the Turecamo Stock or the Xxxxx Stock
incurred in connection with this Agreement shall be paid by the respective
Turecamo Stockholders and the Xxxxx Stockholders, respectively, when due, and
the Turecamo Stockholders and the Xxxxx Stockholders, respectively, will, at
their own expense, file all necessary Tax Returns and other documentation with
respect to all such transfer, documentary, sales, use, stamp, registration and
other Taxes and fees, and, if required by applicable law, Xxxxx Enterprises
will, and will cause its affiliates to, join in the execution of any such Tax
Returns and other documentation.
9. TERMINATION.
(a) TERMINATION OF AGREEMENT. Certain of the Parties may terminate
this Agreement as provided below:
(i) the Parties may terminate this Agreement by mutual written
consent at any time prior to the Closing;
(ii) Xxxxx Enterprises may terminate this Agreement by giving
written notice to the Turecamo Stockholders and the Turecamo Entities at
any time prior to the Closing (A) in the event that any of the Turecamo
Stockholders or any of the Turecamo Entities has breached any
representation, warranty, or covenant contained in this Agreement, Xxxxx
Enterprises has notified the Turecamo Stockholders and the Turecamo
Entities of the breach, the breach has continued without cure for a period
of 15 days after the notice of breach, and such breach is reasonably likely
to cause the failure of any condition precedent under Section 6(a), or (B)
if the Closing shall not have occurred on or before November 1, 1998 by
reason of the failure of any condition precedent under Section 6(a) hereof
(unless the failure results primarily from Xxxxx Enterprises, Xxxxx or the
Xxxxx Stockholders breaching any representation, warranty, or covenant
contained in this Agreement);
(iii) Xxxxx Enterprises may terminate this Agreement by
giving written notice to the Turecamo Stockholders on or before September
21, 1998 if Xxxxx Enterprises is not reasonably satisfied with the results
of its continuing business, accounting and legal due diligence regarding
the Turecamo Entities; and
(iv) the Turecamo Stockholders may terminate this Agreement by
giving written notice to Xxxxx Enterprises at any time prior to the Closing
(A) in the event that Xxxxx Enterprises, Xxxxx or any Xxxxx Stockholder has
breached any representation, warranty, or covenant contained in this
Agreement, any of the Turecamo Stockholders has notified Xxxxx Enterprises
of the breach, the breach has continued without cure for a period of 15
days after the notice of breach, and such breach is reasonably likely to
cause the failure of any condition precedent under Section 6(b) or (B) if
the Closing shall not have occurred on or before November 1, 1998, by
reason of the failure of any condition precedent under Section 6(b) hereof
(unless the failure results primarily from any of the Turecamo Stockholders
or the Turecamo Entities breaching any representation, warranty, or
covenant contained in this Agreement).
(b) EFFECT OF TERMINATION. If any Party terminates this Agreement
pursuant to Section 9(a) above, all rights and obligations of the Parties
hereunder shall terminate without any Liability of any Party to any other Party
(except for any Liability of any Party then in breach). Without limiting the
foregoing, the fee and expense reimbursement provisions of Section 4(g) (but
none of the other provisions of Section 4(g)) shall continue in full force and
effect. Moreover, Sections 5(c) and 10 shall survive any such termination.
10. MISCELLANEOUS.
(a) PRESS RELEASES AND PUBLIC ANNOUNCEMENTS.
(i) The Parties hereto agree that no Party nor any of their
respective representatives or agents shall make any announcement with
respect to the transactions contemplated hereby without the prior written
consent of the others, unless, and to the extent set forth in, the written
opinion of counsel for the subject party, such announcement otherwise is
required by law. Notwithstanding the foregoing, each of the Turecamo
Stockholders and the Turecamo Entities acknowledges that Xxxxx shall not be
required to obtain the prior written consent of the Turecamo Stockholders
and the Turecamo Entities in connection with: (A) the filing by Xxxxx of a
Form 10-K, Form 10-Q, registration statement or other report or schedule
with the Securities and Exchange Commission (the "COMMISSION") which
discloses any or all of the terms of the transactions contemplated hereby
(so long as such disclosure is, in the opinion of counsel to Xxxxx,
required by law); or (B) the filing by Xxxxx of a Form 8-K with the
Commission (in each case, a "FORM 8-K") in connection with the proposed
transaction (so long as such disclosure is, in the opinion of counsel to
Xxxxx, required by law); or (C) the preparation of and distribution of any
offering memorandum in respect of the financing of the transactions
contemplated hereby on terms substantially similar to Schedule
(6)(a)(xviii); PROVIDED, HOWEVER, that Xxxxx agrees that it shall: (i)
submit any such Form 10-K, Form 10-Q, registration statement or other
report or schedule (in each case, if and only to the extent that it relates
to the proposed transaction) and such Form 8-K or offering memorandum to
the Turecamo Entities for their review prior to its filing or release for
dissemination, as the case may be; (ii) provide the Turecamo Entities with
a reasonable opportunity to comment on any such Form 10-K, Form 10-Q,
registration statement or other report or schedule (in each case, if and
only to the extent that it relates to the proposed transaction) and such
Form 8-K or offering memorandum; and (iii) consider in good faith any
comments that the Turecamo Entities may have with respect to any such Form
10-K, Form 10-Q, registration statement or other report or schedule (in
each case, if and only to the extent that it relates to the proposed
transaction) and such Form 8-K or offering memorandum; PROVIDED, FURTHER,
that any final determination with respect to the form or content of any
such Form 10-K, Form 10-Q, registration statement, report or schedule, Form
8-K or offering memorandum shall be within the absolute discretion of
Xxxxx.
(ii) Each of the Turecamo Stockholders and the Turecamo Entities
hereby acknowledges that he, she or it is aware, and that he, she or it has
advised those directors, officers, employees, shareholders, agents or
representatives of the Turecamo Entities who are informed as to the
existence and/or subject matter of this Agreement, that, in general, the
federal securities law prohibits any person who has material, non-public
information relating to Xxxxx or otherwise concerning the matters which are
the subject of this Agreement from purchasing, selling or otherwise trading
securities of Xxxxx or from communicating such information to any other
person under circumstances in which it is reasonably foreseeable that such
person is likely
to purchase, sell or otherwise trade such securities.
(b) NO THIRD-PARTY BENEFICIARIES. Except as set forth in Section
7(g) and Section 7(j), this Agreement shall not confer any rights or remedies
upon any Person other than the Parties and their respective successors and
permitted assigns.
(c) ENTIRE AGREEMENT. This Agreement (including the documents
referred to herein), together with the Confidentiality Agreement, dated as of
January 29, 1998 between Xxxxx and the Turecamo Entities, constitute the entire
agreement among the Parties and supersede any prior understandings, agreements,
or representations by or among the Parties, written or oral (including the
letter agreement, dated May 19, 1998, between Xxxxx and the Turecamo Entities,
as extended by the letters dated July 14, 1998, July 29, 1998, August 7, 1998,
August 14, 1998, August 18, 1998 and August 28, 1998), to the extent they
related in any way to the subject matter hereof.
(d) SUCCESSION AND ASSIGNMENT. This Agreement shall be binding upon
and inure to the benefit of the Parties named herein and their respective
successors and permitted assigns. No Party may assign either this Agreement or
any of his or its rights, interests, or obligations hereunder without the prior
written approval of the other Parties; PROVIDED, HOWEVER, that Xxxxx Enterprises
may (i) concurrently with, or following, the Closing, collaterally assign any or
all of its rights and interests hereunder to one or more lenders of Xxxxx
Enterprises and/or its Subsidiaries, or (ii) following the Closing, assign any
or all of its rights, interests and obligations in connection with a Transaction
described in Section 2(g)(v)(A).
(e) COUNTERPARTS; FACSIMILE EXECUTION. This Agreement may be
executed in one or more counterparts, each of which shall be deemed an original
but all of which together will constitute one and the same instrument.
Facsimile execution of this Agreement shall be valid and binding for all
purposes.
(f) HEADINGS. The section headings contained in this Agreement are
inserted for convenience only and shall not affect in any way the meaning or
interpretation of this Agreement.
(g) NOTICES. All notices, requests, demands, claims, and other
communications hereunder will be in writing. Any notice, request, demand,
claim, or other communication hereunder shall be deemed duly given if (and then
two business days after) it is sent by registered or certified mail, return
receipt requested, postage prepaid, and addressed to the intended recipient as
set forth below:
If to the Turecamo Stockholders, to each of them at the address set forth
on Schedule 1, or if to the Turecamo Stockholder Representative, to him or her
at the address set forth on Schedule 1,
WITH A COPY TO:
Xxxxxxxx & Xxxxxxxx
Xxxx Xxxxxxxx Xxxxx
Xxxxxxxx, Xxxxxxxxxxx 00000
Fax: (000) 000-0000
Attention: Xxxxxxx X. Xxxxxxx, Esq.
IF TO XXXXX ENTERPRISES, XXXXX OR A XXXXX STOCKHOLDER, TO HIM, HER OR IT:
c/x Xxxxx Transportation Company
Two Xxxxxxxxx Xxxxx
Xxxxxxxxx, Xxxxxxxxxxx 00000
Fax: 000-000-0000
Attention: Chairman of the Board
cc: General Counsel
WITH A COPY TO:
Xxxx Xxxxx & Xxxxxxx LLP
Xxx Xxxxxxxx Xxxxxx
Xxxxx 0000
Xxxxxxxx, Xxxxxxxxxxx 00000
Fax: 000-000-0000
Attention: Xxxxxxx X. Xxxxxx III, Esq. and Xxxxxxx X. Xxxxxxx, Esq.
Any Party may send any notice, request, demand, claim, or other communication
hereunder to the intended recipient at the address set forth above using any
other means (including personal delivery, expedited courier, messenger service,
telecopy, telex, ordinary mail, or electronic mail), but no such notice,
request, demand, claim, or other communication shall be deemed to have been duly
given unless and until it actually is received by the intended recipient. Any
Party may change the address to which notices, requests, demands, claims, and
other communications hereunder are to be delivered by giving the other Parties
notice in the manner herein set forth.
(h) GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED
IN ACCORDANCE WITH THE DOMESTIC LAWS OF THE STATE OF NEW YORK WITHOUT GIVING
EFFECT TO ANY CHOICE OR CONFLICT OF LAW PROVISION OR RULE (WHETHER OF THE STATE
OF NEW YORK OR ANY OTHER JURISDICTION) THAT WOULD CAUSE THE APPLICATION OF THE
LAWS OF ANY JURISDICTION OTHER THAN THE STATE OF NEW YORK.
(i) AMENDMENTS AND WAIVERS. No amendment of any provision of this
Agreement shall be valid unless the same shall be in writing and signed by the
Parties. No waiver by any Party of any default, misrepresentation, or breach of
warranty or covenant hereunder, whether intentional or not, shall be deemed to
extend to any prior or subsequent default, misrepresentation, or breach of
warranty or covenant hereunder or affect in any way any rights arising by virtue
of any prior or subsequent such occurrence.
(j) SEVERABILITY. Any term or provision of this Agreement that is
invalid or unenforceable in any situation in any jurisdiction shall not affect
the validity or enforceability of the remaining terms and provisions hereof or
the validity or enforceability of the offending term or provision in any other
situation or in any other jurisdiction.
(k) EXPENSES. Each of the Parties will bear his or its own costs and
expenses (including investment banking, accounting and legal fees and expenses)
incurred in connection with this Agreement and the transactions contemplated
hereby; PROVIDED, HOWEVER, that the Turecamo Entities, or in the event not paid
prior to Closing, Xxxxx Enterprises, shall, from and after the Closing, be
responsible for and pay, in accordance with the instructions of the Turecamo
Entities and against invoices or statements for services rendered, an aggregate
amount up to two million dollars ($2,000,000) of the investment bankers',
attorneys' and accountants' and other fees and expenses payable by the
Turecamo Stockholders or the Turecamo Entities to Beacon, Xxxxxxxx & Xxxxxxxx
and Xxxxxx Xxxx & Xxxxxx PC in connection with the negotiation, preparation
and execution of this Agreement and the consummation of the transactions
contemplated hereby (the "COVERED CLOSING COSTS"), and the Turecamo
Stockholders shall pay all investment bankers', attorneys', accountants' and
other fees and expenses of the Turecamo Stockholders and the Turecamo
Entities related to the negotiation, preparation and execution of this
Agreement and the consummation of the transactions contemplated hereby, in
excess of two million dollars ($2,000,000). Payment of the Covered Closing
Costs shall be in addition to the Aggregate Distributions and shall not
reduce the purchase price.
(l) CONSTRUCTION. The Parties have participated jointly in the
negotiation and drafting of this Agreement. In the event an ambiguity or
question of intent or interpretation arises, this Agreement shall be construed
as if drafted jointly by the Parties and no presumption or burden of proof shall
arise favoring or disfavoring any Party by virtue of the authorship of any of
the provisions of this Agreement. Any reference to any federal, state or local
statute or law shall be deemed also to refer to all rules and regulations
promulgated thereunder, unless the context requires otherwise. The word
"including" shall mean including without limitation. The Parties intend that
each representation, warranty, and covenant contained herein shall have
independent significance. If any Party has breached any representation,
warranty, or covenant contained herein in any respect, the fact that there
exists another representation, warranty, or covenant relating to the same
subject matter (regardless of the relative levels of specificity) which the
Party has not breached shall not detract from or mitigate the fact that the
Party is in breach of the first representation, warranty, or covenant. Nothing
in any disclosure schedule shall be deemed adequate to disclose an exception to
a representation or warranty made herein, however, unless the applicable
disclosure schedule identifies the exception with particularity. Any disclosure
in any one section of a disclosure schedule shall constitute disclosure as to
another section of such disclosure schedule, so long as the relevance of such
disclosure to the latter section is reasonably apparent from the face of the
disclosure schedule, and so long as the applicable disclosure identifies the
exception with particularity. Notwithstanding the foregoing, the Parties make
no representation or warranty as to the accuracy or completeness of any
financial projections contained in any materials distributed to either party in
contemplation of or in connection with the transactions contemplated hereby.
(m) INCORPORATION OF EXHIBITS, ANNEXES, AND SCHEDULES. The Exhibits,
Annexes, and Schedules identified in this Agreement are incorporated herein by
reference and made a part hereof.
(n) SPECIFIC PERFORMANCE. Each of the Parties acknowledges and
agrees that the other Parties would be damaged irreparably in the event any of
the provisions of this Agreement are not performed in accordance with their
specific terms or otherwise are breached. Accordingly, each of the Parties
agrees that the other Parties shall be entitled to an injunction or injunctions
to prevent breaches of the provisions of this Agreement and to enforce
specifically this Agreement and the terms and provisions hereof in any action
instituted in any court of the United States or any state thereof having
jurisdiction over the Parties and the matter (subject to the provisions set
forth in Section 10(o) below), in addition to any other remedy to which they may
be entitled, at law or in equity.
(o) ARBITRATION. Any dispute ("DISPUTE") arising out of or relating
to this Agreement or the parties' respective rights and duties hereunder ((other
than disputes under Sections 2(g)(ii)(C), 5(c), 5(d) and 7(c)(ii)(A)) shall be
resolved in accordance with the procedures specified in this Section 10(o),
which shall be the sole and exclusive procedures for the resolution of any such
Disputes.
(i) Either Xxxxx Enterprises or the Turecamo Stockholder
Representative (on behalf of any or all of the Turecamo Stockholders) may
at any time deliver to the other a written notice identifying a Dispute
(the "DISPUTE NOTICE"). The Dispute Notice shall initiate the dispute
resolution mechanism contemplated by this Section 10(o). Within fifteen
(15) days after delivery of the Dispute Notice, the receiving party shall
submit to the other a written response. The Dispute Notice and response
thereto shall state with particularity the facts and conditions giving rise
to the Dispute and shall include (i) a statement of each party's position
and a summary of arguments supporting that position and (ii) in the case of
Xxxxx Enterprises, Xxxxx and the Xxxxx Stockholders, the name and title of
the persons who will represent those parties in the negotiations
contemplated by Section 10(o)(ii) below (the "XXXXX DESIGNEE").
(ii) Within thirty (30) days after delivery of the Dispute
Notice, the Xxxxx Designee and the Turecamo Stockholder Representative
shall attempt in good faith to resolve the Dispute and shall meet at a
mutually acceptable time and place, and thereafter as they reasonably deem
necessary, to attempt to resolve the Dispute. In attempting to resolve the
dispute, the parties may consult with a neutral third party mediator if
both the Xxxxx Designee and the Turecamo Stockholder Representative agree
in writing. All negotiations pursuant to this Section 10(o)(ii) shall be
confidential and shall be treated as compromise and settlement negotiations
for purposes of applicable rules of evidence.
(iii) Any dispute arising out of or relating to this contract
or the breach, termination or validity thereof (except for disputes
submitted to the Arbitrating Accountant under Sections 2(g)(ii)(C) and
7(c)(ii)(A)) which has not been resolved by negotiation within ninety (90)
days after delivery of the Dispute Notice, shall be settled by arbitration
in accordance with the CPR Rules for Non-Administered Arbitration in effect
on the date of this Agreement, by three independent and impartial
arbitrators, of whom each party shall appoint one and the two arbitrators
so selected shall select the third; provided, however, that if either party
will not participate in negotiations, the other party may initiate
arbitration before expiration of the above period. The arbitration shall
be governed by the Federal Arbitration Act, 9 U.S.C. Sections 1-16, to the
exclusion of state laws inconsistent therewith, and judgment upon the award
rendered by the arbitrators may be entered by any court having jurisdiction
thereof. The place of arbitration shall be New York, New York. The
arbitrators are not empowered to award damages in excess of compensatory
damages and each party hereby irrevocably waives any right to recover such
damages with respect to any dispute resolved by arbitration under this
Section 10(o). The costs of the arbitration specified in this Section
10(o), including the fees and expenses of the arbitrators and the
attorneys' fees and accountants' fees of each party shall be borne by the
losing party, as determined by the arbitrators.
(iv) This Section 10(o) shall not apply to any disputes under
Sections 2(g)(ii)(C) and 7(c)(ii)(A), which are to be resolved by the
Arbitrating Accountant as set forth therein. This Section 10(o) shall not
apply to breaches or alleged breaches of Sections 5(c) and (d), as to which
a Party may enforce any rights or seek any remedies available to it at law
or in equity.
(v) The procedures specified in this Section 10(o) shall be the
sole and exclusive procedures for the resolution of a Dispute (other than
disputes submitted to the Arbitrating Accountant under Sections 2(g)(ii)(C)
and 7(c)(ii)(A); PROVIDED, HOWEVER, that a Party may, without prejudice to
the above procedures, seek a preliminary injunction or other provisional
judicial
relief, if in its sole judgment such action is necessary to avoid
irreparable damage or to preserve the status quo.
(p) TURECAMO STOCKHOLDER REPRESENTATIVE.
(i) By written notice to Xxxxx Enterprises signed by each
Turecamo Stockholder and delivered within ten (10) days after the date hereof,
the Turecamo Stockholders shall appoint a representative (the "TURECAMO
STOCKHOLDER REPRESENTATIVE").
(ii) In the event the Turecamo Stockholder Representative shall
cease to hold shares of Xxxxx Enterprises Common Stock or shall die or resign or
otherwise terminate his or her status as such, his or her successor shall be any
Turecamo Stockholder or spouse thereof appointed by the Turecamo Stockholder
Representative or, in the case of the death of the Turecamo Stockholder
Representative or where the Turecamo Stockholder Representative fails to appoint
a successor after a vacancy has been created, elected by the vote or written
consent of a majority in interest of the Turecamo Stockholders (based upon the
pro rata interests in shares of Xxxxx Enterprises Common Stock, as set forth on
Schedule 1 hereto). If the Turecamo Stockholders fail for any reason to elect a
new Turecamo Stockholder Representative, then during any period in which a
vacancy exists, a person who shall be designated by written notice to Xxxxx
Enterprises signed by each Turecamo Stockholder and delivered within ten (10)
days after the date hereof shall serve as the Turecamo Stockholder
Representative until a new Turecamo Stockholder Representative is elected. All
decisions of the Turecamo Stockholder Representative shall be binding upon the
Turecamo Stockholders. The Turecamo Stockholder Representative shall keep the
Turecamo Stockholders reasonably informed of his decisions of a material nature.
The Turecamo Stockholder Representative shall not be subject to removal except
upon permanent disability or commission of a crime.
(iii) The Turecamo Stockholder Representative is authorized
to take any action deemed by him or her appropriate or necessary to carry out
the provisions of, and to determine the rights of the Turecamo Stockholders
under this Agreement. Upon the Closing and in consideration of the payments by
Xxxxx Enterprises hereunder, each Turecamo Stockholder shall be deemed to have
irrevocably appointed the Turecamo Stockholder Representative as his or her
attorney-in-fact to bind each Turecamo Stockholder and to contest, settle,
compromise or otherwise dispose of any claim made by a Xxxxx Enterprises
Indemnified Party in accordance with this Agreement. This power of attorney is
coupled with an interest and irrevocable. Without limiting the foregoing, the
Turecamo Stockholder Representative shall serve as the agent of the Turecamo
Stockholders for all purposes related to this Agreement, including without
limitation service of process upon the Turecamo Stockholders. By his or her
execution of this Agreement, the Turecamo Stockholder Representative accepts and
agrees to diligently discharge the duties and responsibilities of the Turecamo
Stockholder Representative set forth in this Agreement. The authorization and
designation of the Turecamo Stockholder Representative under this Section 10(p)
shall be binding upon the successors and assigns of each Turecamo Stockholder.
Each of Xxxxx Enterprises and its Subsidiaries and Affiliates and the Escrow
Agent shall be entitled to rely upon such authorization and designation and
shall be fully protected in dealing with the Turecamo Stockholder
Representative, and shall have no duty to inquire into the authority of any
person reasonably believed by any of them to be the Turecamo Stockholder
Representative.
(iv) The Turecamo Stockholder Representative (A) shall not be
liable to any of the Turecamo Stockholders for any error of judgment, act done
or omitted by him or her in good faith, or
mistake of fact or law unless caused by his or her own gross negligence,
recklessness or willful misconduct; (B) shall be entitled to treat as genuine
any letter or other document furnished to him or her by Xxxxx Enterprises or
any of the Turecamo Stockholders and believed by him or her to be genuine and
have been signed and presented by the proper party or parties; and (C) shall
be reimbursed by the other Turecamo Stockholders for counsel fees and other
out-of-pocket expenses incurred by the Turecamo Stockholder Representative in
connection with this Agreement. The Turecamo Stockholder Representative
shall not be entitled to any compensation for services hereunder.
* * *
(Remainder of Page Intentionally Left Blank)
IN WITNESS WHEREOF, the Parties hereto have executed this Agreement on as
of the date first above written.
XXXXX ENTERPRISES:
XXXXX ENTERPRISES CORPORATION
By: /s/ Xxxx X. Xxxxxxxxx
-------------------------------
Name: Xxxx X. Xxxxxxxxx
Title: Chairman
XXXXX:
XXXXX TRANSPORTATION COMPANY
By: /s/ Xxxx X. Xxxxxxxxx
-------------------------------
Name: Xxxx X. Xxxxxxxxx
Title: Chairman
XXXXX STOCKHOLDERS:
LAKES SHIPPING CO., INC.
By: /s/ Xxxx X. Xxxxxxxxx
-------------------------------
Name: Xxxx X. Xxxxxxxxx
Title: Vice Chairman
/s/ Xxxxx X. Xxxxxx
------------------------------------
Xxxxx X. Xxxxxx
/s/ Xxxxx X. Xxxxxx
------------------------------------
Xxxxx X. Xxxxxx
/s/ Xxxxx X. Xxxxxx
------------------------------------
Xxxxx X. Xxxxxx
/s/ Xxxx X. Xxxxxx
------------------------------------
Xxxx X. Xxxxxx
LAFAYETTE AMERICAN BANK,
CUSTODIAN FOR XXXXXX X. XXXXXXXX XXX ROLLOVER
By: /s/ Xxxxxxx X. Xxxxxxxxx
-------------------------------
Name: Xxxxxxx X. Xxxxxxxxx
Title: Vice President
/s/ Xxxxxxx X. XxxXxxx
------------------------------------
Xxxxxxx X. XxxXxxx
/s/ Xxxx X. Xxxxxxxxxxx
------------------------------------
Xxxx X. Xxxxxxxxxxx
/s/ Xxxxxx X. Xxxxx, Xx.
------------------------------------
Xxxxxx X. Xxxxx, Xx.
/s/ Xxxx X. Xxxxxxxxx
------------------------------------
Xxxx X. Xxxxxxxxx
TURECAMO ENTITIES:
TURECAMO MARITIME, INC.
By: /s/ Xxxxxxx X. XxXxxxx
-------------------------------
Name: Xxxxxxx X. XxXxxxx
Title: President
WHITE STACK MARITIME CORP.
By: /s/ Xxxxxxx X. XxXxxxx
-------------------------------
Name: Xxxxxxx X. XxXxxxx
Title: Vice President
TURECAMO OF SAVANNAH, INC.
By: /s/ Xxxxxxx X. XxXxxxx
-------------------------------
Name: Xxxxxxx X. XxXxxxx
Title: Vice President
TURECAMO ENVIRONMENTAL SERVICES, INC.
By: /s/ Xxxxxxx X. XxXxxxx
-------------------------------
Name: Xxxxxxx X. XxXxxxx
Title: Vice President
TURECAMO STOCKHOLDERS:
/s/ Xxxx XxXxxxxxxx
------------------------------------
Xxxx XxXxxxxxxx
/s/ Xxxx XxXxxxx
------------------------------------
Xxxx XxXxxxx
/s/ Xxxxx Xxxxxx
------------------------------------
Xxxxx Xxxxxx
/s/ Xxxxxxxx X. Xxxxxx
------------------------------------
Xxxxxxxx X. Xxxxxx
/s/ Xxxx Xxxxxxxx, Xx.
------------------------------------
Xxxx Xxxxxxxx, Xx.
/s/ Xxxxxxxx X. Xxxxxxxx
------------------------------------
Xxxxxxxx X. Xxxxxxxx
APPENDIX A
DEFINITIONS
As used herein, the following terms have the respective meanings set forth
below:
"ABS" means the American Bureau of Shipping.
"ADVERSE CONSEQUENCES" means all actions, suits, proceedings, hearings,
investigations, charges, complaints, claims, demands, injunctions, judgments,
orders, decrees, rulings, damages, dues, penalties, fines, costs, amounts paid
in settlement, Liabilities, obligations, Taxes, liens, losses, lost value
(excluding the time value of money), expenses, and fees, including court costs
and attorneys' fees and expenses.
"ADJUSTMENT SCHEDULE" has the meaning set forth in Section 2(g)(ii)(A)
above.
"AFFILIATE" has the meaning set forth in Rule 12b-2 of the regulations
promulgated under the Securities Exchange Act.
"AFFILIATED GROUP" means any affiliated group within the meaning of Code
Section 1504(a) or any similar group defined under a similar provision of state
or local law.
"AGGREGATE DISTRIBUTIONS" means, collectively, (i) the Balance Sheet
Distributions, (ii) the Tax Distributions and (iii) the permitted distribution
of cash in the amount of $1,904,000 which was distributed on or prior to April
30, 1998 by the Turecamo Entities to the Turecamo Stockholders.
"AGGREGATE OFFSET AMOUNT" has the meaning set forth in Section 7(b)(i)(C)
above.
"AGREEMENT" has the meaning set forth in the preface above.
"ANCILLARY AGREEMENTS" means the Cash Escrow Agreement, the Stock Escrow
Agreement, the Stockholders Agreement, the Releases and the Distribution
Agreements.
"ARBITRATING ACCOUNTANT" has the meaning set forth in Section 2(g)(ii)(C)
above.
"BALANCE SHEET DISTRIBUTION" means the distribution to the Turecamo
Stockholders or entities controlled by them, directly or indirectly, of (i) cash
in the amount of $3,532,000, (ii) the interest of the Turecamo Entities in
Columbia Coastal, the Charleston, South Carolina property and a certain real
estate accounts receivable relating to the Xxxxxx Heights, Brooklyn property (in
each case, subject to all Liabilities associated with such assets), (iii) the
Power Packs used in the business of Columbia Coastal and any associated
Liabilities and (iv) the automobiles listed on Schedule 1(b) hereto and any
associated Liabilities.
"BEACON" has the meaning set forth in Section (w) of Annex II below.
"BUSINESS DAY" means each Monday, Tuesday, Wednesday, Thursday and Friday
which is not a
day in which banking institutions in New York, New York are authorized or
obligated by law or executive order to close.
"CASH ESCROW ACCOUNT" has the meaning set forth in Section 2(f) above.
"CASH ESCROW AGREEMENT" has the meaning set forth in Section 2(f) above.
"CASH PORTION" has the meaning set forth in the recitals above.
"CLOSING" has the meaning set forth in Section 2(c) above.
"CLOSING DATE" has the meaning set forth in Section 2(c) above.
"CODE" means the Internal Revenue Code of 1986, as amended.
"COLUMBIA COASTAL" means Columbia Coastal Transport, Inc., Columbia Coastal
Transport, LLC, Columbia Leasing, LLC, and Columbia Southern Container Services,
Inc..
"COMMISSION" has the meaning set forth in Section 10(a)(i) above.
"CONFIDENTIAL INFORMATION" means any information concerning the businesses
and affairs of the Turecamo Entities and Xxxxx Enterprises, Xxxxx and their
Subsidiaries and Affiliates that is not already generally available to the
public at the time of disclosure and shall include any and all information
relating to the price and terms of this Agreement.
"CONTRACTS" has the meaning set forth in Section (o) Annex II below.
"COVERED CLOSING COSTS" has the meaning set forth in Sections 10(k) above.
"DISPUTE" has the meaning set forth in Section 10(o) above.
"DISPUTE NOTICE" has the meaning set forth in Section 10(o)(i) above.
"DISTRIBUTION" has the meaning set forth in Section 2(e)(ii) above.
"DISTRIBUTION AGREEMENT" has the meaning set forth in Section 6(a)(xxiii)
above.
"DISTRIBUTION ENTITY" has the meaning set forth in Section 6(a)(xxi) above.
"EARNED SHARES" has the meaning set forth in Section 2(g)(iv) above.
"EARNOUT HOLDERS" has the meaning set forth in Section 2(g)(i) above.
"EARNOUT PERIOD" has the meaning set forth in Section 2(g)(ii) above.
"EMPLOYEE BENEFIT PLAN" means any (a) Employee Pension Benefit Plan
(including any Multiemployer Plan), (b) Employee Welfare Benefit Plan, or (c)
fringe benefit plan or program whether
written or oral.
"EMPLOYEE PENSION BENEFIT PLAN" has the meaning set forth in ERISA Section
3(2).
"EMPLOYEE WELFARE BENEFIT PLAN" has the meaning set forth in ERISA Section
3(1).
"ENVIRONMENTAL CLAIM" has the meaning set forth in Section (u) of Annex II
below.
"ENVIRONMENTAL LAWS" has the meaning set forth in Section (u) of Annex II
below.
"ENVIRONMENTAL PERMIT" has the meaning set forth in Section (u) of Annex II
below.
"EBITDA" has the meaning set forth in Section 2(g)(ii) above.
"ERISA" means the Employee Retirement Income Security Act of 1974, as
amended.
"ESCROW AGENT" has the meaning set forth in Section 2(f) above.
"ESCROW CASH PORTION" has the meaning set forth in Section 2(f) above.
"ESCROW SHARES" has the meaning set forth in Section 2(g)(i) above.
"EXCLUDED LIABILITIES" means (i) any Liabilities associated with the assets
comprising the Balance Sheet Distributions and (ii) any Liabilities of, relating
to, or arising out of, Columbia Coastal.
"EXCLUSIVITY PERIOD" has the meaning set forth in Section 4(g) above.
"FINANCIAL STATEMENTS" has the meaning set forth in Section (e) of Annex II
below.
"FORM 8-K" has the meaning set forth in Section 10(a) above.
"GAAP" means United States generally accepted accounting principles as in
effect from time to time.
"GOVERNMENTAL AUTHORITY" means any federal, state, municipal or other
governmental or quasi-governmental department, commission, board, bureau, agency
or instrumentality, or any court of the United States of America or any
political subdivision thereof, or of any other country.
"HARDY HARRIS" has the meaning set forth in Section (w) of Annex V below.
"XXXX-XXXXX-XXXXXX ACT" means the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements
Act of 1976, as amended.
"INDEBTEDNESS" of any Person means, in each case whether or not accrued on
the books of such Person, (a) all indebtedness of such Person for borrowed money
or for the deferred purchase price of property or services, (b) all obligations
of such Person upon which interest charges are customarily paid or which are
evidenced by notes, bonds, debentures, credit agreements or similar agreements
or
investments, (c) all obligations of such Person under conditional sale or
other title retention agreements relating to property or assets purchased by
such Person, (d) all obligations of such Person under capitalized leases, (e)
all obligations of such Person in respect of acceptances, letters of credit or
letters of guaranty issued or created for the account of such Person, and (f)
all liabilities secured by any Security Interest on any property owned by such
Person, whether or not such Person has assumed or otherwise become liable for
the payment thereof.
"INDEMNIFIED PARTY" has the meaning set forth in Section 7(e)(i) above.
"INDEMNIFYING PARTY" has the meaning set forth in Section 7(e)(i) above.
"INTELLECTUAL PROPERTY" means (a) all inventions (whether patentable or
unpatentable and whether or not reduced to practice), all improvements thereto,
and all patents, patent applications, and patent disclosures, together with all
reissuances, continuations, continuations-in-part, revisions, extensions, and
reexaminations thereof, (b) all trademarks, service marks, trade dress, logos,
trade names, and corporate names, together with all translations, adaptations,
derivations, and combinations thereof and including all goodwill associated
therewith, and all applications, registrations, and renewals in connection
therewith, (c) all copyrightable works, all copyrights, and all applications,
registrations, and renewals in connection therewith, (d) all mask works and all
applications, registrations, and renewals in connection therewith, (e) all trade
secrets and confidential business information (including research and
development, formulas, compositions, manufacturing and production processes and
techniques, technical data, designs, drawings, diagrams, specifications,
customer and supplier lists, catalogs, pricing and cost information, and
business and marketing plans and proposals), (f) all computer software
(including data and related documentation) (whether purchased or internally
developed), (g) all information systems and management procedures, (h) all other
similar proprietary rights, and (i) all copies and tangible embodiments thereof
(in whatever form or medium).
"KNOWLEDGE" means (i) with respect to the Turecamo Entities, the knowledge
that Xxxxxxx X. XxXxxxx, Xxxxx X. Xxxxxx, Xxxx Xxxxxxxxx, and the senior
employees of the Turecamo Entities having responsibility for a particular matter
have, or in the exercise of their duties reasonably should have had, (ii) with
respect to the Turecamo Stockholders, the actual knowledge of such Turecamo
Stockholder, (iii) with respect to Xxxxx, the knowledge that Xxxx X. Xxxxxxxxx,
Xxxxxxx X. XxxXxxx, Xxxxxxx X. XxXxxxx, Xxxx X. Xxxxxxxxxxx and the senior
employees of Xxxxx having responsibility for a particular matter have, or in the
exercise of their duties reasonably should have had, and (iv) with respect to
the Xxxxx Stockholders, the actual knowledge of such Xxxxx Stockholder.
"LAW" means any foreign, federal, state or local constitution, statute,
regulation, rule, ordinance, code, plan, injunction, order, decree, ruling,
charge or treaty.
"LEASED REAL PROPERTY" has the meaning set forth in Section (j)(ii) of
Annex II below.
"LEASES" has the meaning set forth in Section (j)(ii) of Annex II below.
"LIABILITY" means any liability (whether known or unknown, whether asserted
or unasserted, whether absolute or contingent, whether accrued or unaccrued,
whether liquidated or unliquidated, and whether due or to become due), including
any liability for Taxes.
"MARITIME" has the meaning set forth in the preface above.
"MATERIAL ADVERSE EFFECT" means a material adverse effect on the business,
assets, properties, operations, results of operations, condition (financial or
otherwise) or prospects of a Person or Persons, as the context requires
(including, in the case of Turecamo, the Turecamo Entities, taken as a whole,
and in the case of Xxxxx, Xxxxx and its Subsidiaries, taken as a whole).
"MATERIALS OF ENVIRONMENTAL CONCERN" has the meaning set forth in Section
(u) of Annex II below.
"XXXXX" has the meaning set forth in the preface above.
"XXXXX BUSINESS" has the meaning set forth in the recitals.
"XXXXX CONTRACTS" has the meaning set forth in Section (o) of Annex V
below.
"XXXXX DESIGNEE" has the meaning set forth in Section 10(o)(i) above.
"XXXXX DISCLOSURE SCHEDULE" has the meaning set forth in Section 3(e)
above.
"XXXXX EMPLOYEE BENEFIT PLANS" has the meaning set forth in Section (t) of
Annex V below.
"XXXXX ENTERPRISES" has the meaning set forth in the preface above.
"XXXXX ENTERPRISES COMMON STOCK" has the meaning set forth in Section (d)
of Annex IV below.
"XXXXX ENTERPRISES DISCLOSURE SCHEDULE" has the meaning set forth in
Section 3(d) above.
"XXXXX ENTERPRISES INDEMNIFIED PARTY" has the meaning set forth in Section
7(j) above.
"XXXXX ENTERPRISES PREFERRED STOCK" has the meaning set forth in Section
(d) of Annex IV below.
"XXXXX LEASED REAL PROPERTY" has the meaning set forth in Section (j)(ii)
of Annex V below.
"XXXXX LEASES" has the meaning set forth in Section (j)(ii) of Annex V
below.
"XXXXX POSITION" has the meaning set forth in Section 2(g)(ii)(C) above.
"XXXXX SEC REPORTS" has the meaning set forth in Section (e) of Annex V
below.
"XXXXX STOCK" has the meaning set forth in the recitals.
"XXXXX STOCKHOLDER" has the meaning set forth in the preface above.
"XXXXX STOCKHOLDER DISCLOSURE SCHEDULE" has the meaning set forth in
Section 3(c) above.
"XXXXX TANGIBLE PROPERTY" has the meaning set forth in Section (l) of Annex
V below.
"XXXXX TOWING" means Xxxxx Towing Corporation, a New York corporation.
"XXXXX VESSELS" has the meaning set forth in Section (m) of Annex V below.
"MOST RECENT BALANCE SHEET" means the balance sheet contained within the
Most Recent Financial Statements.
"MOST RECENT FORM 10-K" has the meaning set forth in Section (e) of Annex V
below.
"MOST RECENT FINANCIAL STATEMENTS" has the meaning set forth in Section (e)
of Annex II below.
"MOST RECENT FISCAL MONTH END" has the meaning set forth in Section (e) of
Annex II below.
"MOST RECENT FISCAL YEAR END" has the meaning set forth in Section (e) of
Annex II below.
"MOST RECENT FORMS 10-Q" has the meaning set forth in Section (e) of Annex
V below.
"MOST RECENT SEC REPORTS" has the meaning set forth in Section (e) of Annex
V below.
"MULTIEMPLOYER PLAN" has the meaning set forth in ERISA Section 3(37).
"NONCOMPETITION PERIOD" has the meaning set forth in Section 5(d) above.
"ORDINARY COURSE OF BUSINESS" means the ordinary course of business
consistent with past custom and practice (including with respect to quantity and
frequency).
"PARTIES" has the meaning set forth in the preface above.
"PERMITS" has the meaning set forth in Section (h)(ii) of Annex II below.
"PERSON" means an individual, a partnership, a corporation, a limited
liability company, an association, a joint stock company, a trust, a joint
venture, an unincorporated organization, or a governmental entity (or any
department, agency, or political subdivision thereof).
"RELATED PARTIES" has the meaning set forth in Section 6(a)(xxi) above.
"RELEASE" means a Release substantially in the form of Exhibit E attached
hereto.
"RESTATED CERTIFICATE" means the Amended and Restated Certificate of
Incorporation of Xxxxx Enterprises, substantially in the form of Exhibit I
attached hereto.
"SECURITIES ACT" means the Securities Act of 1933, as amended.
"SECURITIES EXCHANGE ACT" means the Securities Exchange Act of 1934, as
amended.
"SECURITY INTEREST" means any adverse claim, mortgage, pledge, lien,
encumbrance, option, restriction on transfer, easement, right of way, matter of
survey, charge, or other security interest.
"SETTLEMENT NOTICE" has the meaning set forth in Section 7(e)(iii) above.
"STOCK ESCROW ACCOUNT" has the meaning set forth in Section 2(g)(i) above.
"STOCK ESCROW AGREEMENT" has the meaning set forth in Section 2(g)(i)
above.
"STOCKHOLDERS AGREEMENT" means the Stockholders Agreement, to be dated as
of the Closing Date, by and among Xxxxx Enterprises, the Xxxxx Stockholders, all
holders of options to purchase Xxxxx Enterprises Common Stock and the Turecamo
Stockholders, substantially in the form of Exhibit J hereto.
"SUBSIDIARY" means any Person with respect to which a specified Person (or
a Subsidiary thereof) owns a majority of the voting securities or has the power
to vote or direct the voting of sufficient securities to elect a majority of the
directors (or persons exercising similar functions).
"TAKEOVER" has the meaning set forth in Section 4(g)(i) above.
"TAKEOVER PROPOSAL" has the meaning set forth in Section 4(g)(i) above.
"TANGIBLE PROPERTY" has the meaning set forth in Section (l) of Annex II
below.
"TAX" means any foreign, federal, state or local income, gross receipts,
license, payroll, employment, excise, severance, stamp, occupation, premium,
windfall profits, environmental (including taxes under Code Section 59A),
customs duties, capital stock, franchise, profits, withholding, social security
(or similar), unemployment, disability, real property, personal property, sales,
use, transfer, registration, value added, alternative or add-on minimum,
estimated, or other tax of any kind whatsoever, including any interest, penalty,
or addition thereto, whether disputed or not.
"TAX DISTRIBUTION" shall mean cash distributions to the Turecamo
Stockholders for payment of Taxes by the Turecamo Stockholders in respect of the
income and gain of the Turecamo Entities for the period from January 1, 1998
through and including the day prior to the Closing of the Closing (excluding any
income or gain directly related to payment or receipt of the Balance Sheet
Distributions), which distributions shall be computed at the highest combined
effective tax rate applicable to a Turecamo Stockholder.
"TAX LIABILITY" has the meaning set forth in Section (i)(iii) of Annex II
below.
"TAX RETURN" means any return, declaration, report, claim for refund, or
information return or statement relating to Taxes, including any schedule or
attachment thereto, and including any amendment thereof.
"TES" has the meaning set forth in the preface above.
"THIRD PARTY" means any party other than the Parties.
"THIRD PARTY CLAIM" has the meaning set forth in Section 7(e)(i) above.
"TOS" has the meaning set forth in the preface above.
"TRANSACTION" has the meaning set forth in Section 2(g)(v) above.
"TURECAMO BUSINESS" has the meaning set forth in the recitals above.
"TURECAMO DISCLOSURE SCHEDULE" has the meaning set forth in Section 3(b)
above.
"TURECAMO EMPLOYEE BENEFIT PLANS" has the meaning set forth in Section (t)
of Annex II below.
"TURECAMO ENTITIES" has the meaning set forth in the preface above.
"TURECAMO PERMITTED TRANSFEREES" shall have the meaning set forth in the
Stockholders Agreement.
"TURECAMO STOCK" has the meaning set forth in the recitals above.
"TURECAMO STOCKHOLDER DISCLOSURE SCHEDULE" has the meaning set forth in
Section 3(a) above.
"TURECAMO STOCKHOLDER POSITION" has the meaning set forth in Section
2(g)(ii)(C) above.
"TURECAMO STOCKHOLDER REPRESENTATIVE" has the meaning set forth in Section
10(p)(i) above.
"TURECAMO STOCKHOLDERS" has the meaning set forth in the preface above.
"TURECAMO STOCKHOLDER TAX LIABILITY" has the meaning set forth in Section
7(b)(i)(A) above.
"USCG" has the meaning set forth in Section (m) of Annex II below.
"VESSELS" has the meaning set forth in Section (m) of Annex II below.
"WHITE STACK" has the meaning set forth in the preface above.
ANNEX I
-------
REPRESENTATIONS AND WARRANTIES OF EACH TURECAMO STOCKHOLDER
-----------------------------------------------------------
(a) TITLE TO SHARES. Such Turecamo Stockholder is the record and
beneficial owner of the shares of Turecamo Stock set forth opposite such
Turecamo Stockholder's name on Schedule 1 hereto, free and clear of any Security
Interest, and has full power and authority to convey such shares set forth
opposite such Turecamo Stockholder's name on Schedule 1 hereto, free and clear
of any Security Interest, and, upon delivery of and payment for such shares as
herein provided and termination of the White Stack Stockholders Agreement, Xxxxx
Enterprises will acquire good, marketable and valid title thereto, free and
clear of any Security Interest (other than Security Interests granted by Xxxxx
Enterprises). Each of the Turecamo Stockholders is a "citizen" within the
meaning of Section 2(c) of the Shipping Act of 1916, as amended.
(b) AUTHORITY RELATIVE TO THIS AGREEMENT. Such Turecamo Stockholder
has the full legal right and power and all authority and approval required to
enter into, execute and deliver this Agreement and the Ancillary Agreements and
to perform fully such Turecamo Stockholder's obligations hereunder and
thereunder. This Agreement has been duly executed and delivered by such
Turecamo Stockholder and constitutes (and upon due execution and delivery, the
Ancillary Agreements to which such Turecamo Stockholder is intended to be party
will constitute) the legal, valid and binding obligation of such Turecamo
Stockholder enforceable against such Turecamo Stockholder in accordance with its
terms.
(c) ABSENCE OF CONFLICTS. The execution and delivery of this
Agreement and the Ancillary Agreements and the consummation of the transactions
contemplated hereby and thereby and the performance by such Turecamo Stockholder
of this Agreement and the Ancillary Agreements in accordance with their
respective terms and conditions will not: (i) require such Turecamo Stockholder
to obtain any Permit, or any notice to, filing or registration with, or permit,
license, variance, waiver, exemption, franchise, order, consent, authorization
or approval of, any other person except for notices and consents disclosed on
Section (c) of the Turecamo Stockholder Disclosure Schedule; (ii) except as set
forth in Section (c) of the Turecamo Stockholder Disclosure Schedule, violate,
conflict with or result in a breach of any provision of or constitute a default
(or an event which, with notice or lapse of time or both, would constitute a
breach or default) under, or result in the termination of, or accelerate the
performance required by, or result in the creation of any Security Interest on
the Turecamo Stock held by such Turecamo Stockholder or upon the assets,
properties or businesses of the Turecamo Entities under any of the terms,
conditions or provisions of any contract or other agreement (written or oral) to
which such Turecamo Stockholder is a party or by or to which such Turecamo
Stockholder or the shares of Turecamo Stock held by such Turecamo Stockholder
are bound or subject; or (iii) subject to compliance with the Xxxx-Xxxxx-Xxxxxx
Act, (A) to the knowledge of such Turecamo Stockholder, violate any Law or (B)
violate any outstanding judgment, ruling, order, writ, injunction or award of
any Governmental Authority, in the case of (A) or (B), which is applicable to
such Turecamo Stockholder or to the Turecamo Stock held by such Turecamo
Stockholder.
(d) SECURITIES LAW MATTERS. Such Turecamo Stockholder hereby confirms
that he or she has been informed that the shares of the Xxxxx Enterprises Common
Stock being issued to him or her are restricted securities under the Securities
Act and may not be resold or transferred unless first registered under the
federal securities laws or unless an exemption from such registration is
available. Accordingly, such Turecamo Stockholder hereby acknowledges that he
or she is prepared to hold the
Annex I-Representations &
Warranties of Each Turecamo
Stockholder
Xxxxx Enterprises Common Stock for an indefinite period and that the Turecamo
Stockholder is aware that Rule 144 of the Commission issued under the Securities
Act is not presently available to exempt the resale of the Xxxxx Enterprises
Common Stock from the registration requirements of the Securities Act. Such
Turecamo Stockholder is aware of the adoption of Rule 144 promulgated under the
Securities Act by the Commission, which permits limited public resales of
securities acquired in a nonpublic offering, subject to the satisfaction of
certain conditions. Such Turecamo Stockholder understands that Rule 144 is
conditioned upon, among other things: (i) the availability of certain current
public information about Xxxxx Enterprises, (ii) the resale occurring not
earlier than one (1) year after the party has purchased and paid for the
securities to be sold, (iii) the sale being made through a broker in an
unsolicited "broker's transaction", and (iv) the amount of securities being sold
during any three-month period not exceeding specified limitations. Such
Turecamo Stockholder understands that Xxxxx Enterprises may not be satisfying
the current public information requirement of Rule 144 at the time such Turecamo
Stockholder wishes to sell the Xxxxx Enterprises Common Stock or other
conditions under Rule 144. If so, such Turecamo Stockholder understands that he
or she may be precluded from selling the securities under Rule 144 even if the
one-year holding period of said Rule has been satisfied. Prior to the
acquisition of the shares of Xxxxx Enterprises Common Stock by such Turecamo
Stockholder, each such Turecamo Stockholder acquired sufficient information
about Xxxxx Enterprises to reach an informed and knowledgeable decision to
acquire the Xxxxx Enterprises Common Stock. Such Turecamo Stockholder has such
knowledge and experience in financial and business matters so as to make him or
her capable of utilizing said information to evaluate the risks of the
prospective investment and to make an informed investment decision. Such
Turecamo Stockholder is able to bear the economic risk of his or her investment
in the Xxxxx Enterprises Common Stock. Such Turecamo Stockholder is an
"Accredited Investor," as defined in the rules and regulations promulgated under
the Securities Act, and is a resident of the jurisdiction listed on Schedule 1.
Such Turecamo Stockholder also acknowledges that the shares of Xxxxx Enterprises
Common Stock to be received by him or her will be subject to additional
restrictions on transfer and legend requirements under the Stockholders
Agreement.
(e) INTEREST IN COMPETITORS AND SUPPLIERS. Other than interests in
Columbia Coastal and the lessor of the Leased Real Property located in Savannah,
Georgia, and except as set forth on Section (e) of the Turecamo Stockholder
Disclosure Schedule, neither any Turecamo Stockholder nor any Affiliate of any
Turecamo Stockholder, (i) has any material direct or indirect interest in any
Person (other than, upon the Closing, Xxxxx Enterprises) engaged or involved in
any business which is competitive in any way with the business of Xxxxx
Enterprises and its Subsidiaries or (ii) has any material direct or indirect
interest in any Person which is a lessor of assets or properties to, material
supplier of, or provider of services to, Xxxxx Enterprises or any of its
Subsidiaries.
ANNEX II
--------
REPRESENTATIONS AND
WARRANTIES OF THE TURECAMO ENTITIES
-----------------------------------
(a) ORGANIZATION, QUALIFICATION, AND CORPORATE POWER. Each of the
Turecamo Entities is a corporation duly organized, validly existing, and in good
standing under the jurisdiction of its incorporation as listed on Section (a) of
the Turecamo Disclosure Schedule. Each of the Turecamo Entities is duly
authorized to conduct business and is in good standing under the laws of each
jurisdiction listed in Section (a) of the Turecamo Disclosure Schedule. Each of
the Turecamo Entities has requisite corporate power and authority to carry on
the businesses in which it is engaged and to own and use the properties owned
and used by it. The Turecamo Entities have delivered to Xxxxx Enterprises
correct and complete copies of the certificates of incorporation and bylaws of
each of the Turecamo Entities (as amended to date). The minute books
(containing the records of meetings of the stockholders, the board of directors,
and any committees of the board of directors) are correct and complete in all
material respects, and the stock certificate books, and the stock record books
of each of the Turecamo Entities are correct and complete in all respects. None
of the Turecamo Entities is in default under or in violation of any provision of
its certificate of incorporation or bylaws. Each of the Turecamo Entities is a
"citizen" within the meaning of Section 2(c) of the Shipping Act of 1916, as
amended.
(b) CAPITALIZATION. The entire authorized capital stock of each Turecamo
Entity is set forth in Section (b) of the Turecamo Disclosure Schedule. Each
outstanding share of capital stock of each Turecamo Entity has been duly
authorized, is validly issued, fully paid, and nonassessable, and is held of
record by the respective Turecamo Stockholders as set forth in Section (b) of
the Turecamo Disclosure Schedule. There are no outstanding or authorized
options, warrants, preemptive rights, purchase rights, subscription rights,
conversion rights, exchange rights, or other contracts or commitments that could
require any Turecamo Entity to issue, sell, or otherwise cause to become
outstanding any of its capital stock. There are no outstanding or authorized
stock appreciation, phantom stock, profit participation, or similar rights with
respect to any Turecamo Entity. Except as set forth in Section (c) of the
Turecamo Disclosure Schedule, there are no voting trusts, proxies, or other
agreements or understandings with respect to the voting of the capital stock of
any Turecamo Entity.
(c) NONCONTRAVENTION. Except as set forth in Section (c) of the Turecamo
Disclosure Schedule, neither the execution and the delivery of this Agreement or
the Ancillary Agreements, nor the consummation of the transactions contemplated
hereby or thereby, will (i) violate any law or any order, decree, ruling,
charge, or other restriction of any Governmental Authority to which any of the
Turecamo Entities is subject or any provision of the certificate of
incorporation or bylaws of any of the Turecamo Entities or (ii) conflict with,
result in a breach of, constitute a default under (or an event which, with
notice or lapse of time, or both, would constitute a breach or default), result
in the acceleration of, create in any party the right to accelerate, terminate,
modify, or cancel, or require any notice under any agreement, Contract, Permit
or other arrangement (written or oral) to which any of the Turecamo Entities is
a party or by which it is bound or to which any of its assets is subject (or
result in the imposition of any Security Interest upon any of its assets).
Except as set forth in Section (c) of the Turecamo Disclosure Schedule, none of
the Turecamo Entities needs to give any notice to, make any filing with, or
obtain any authorization, consent, or approval of any Governmental Authority in
order for the Parties to consummate the transactions contemplated by this
Agreement and the Ancillary Agreements or continue
Annex II-Reps. & Warranties
of Turecamo Entities
the effectiveness of Permits relating to the Turecamo Business following the
Closing.
(d) SUBSIDIARIES. Except as set forth on Section (d) of the Turecamo
Disclosure Schedule, none of the Turecamo Entities has any Subsidiaries. Except
as set forth on Section (d) of the Turecamo Disclosure Schedule, no Turecamo
Entity, directly or indirectly, owns or controls or has any capital or other
equity interest or participation (or any interest convertible into or
exchangeable or exercisable for, any capital or other equity interest or
participation in) nor is any Turecamo Entity, directly or indirectly, subject to
any obligation or requirement to provide funds to or invest in, any person.
(e) FINANCIAL STATEMENTS. Attached hereto as Exhibit K are the following
financial statements (collectively the "FINANCIAL STATEMENTS"): (i) audited
combined and unaudited combining balance sheets and statements of income,
changes in stockholders' equity, and cash flow as of and for the fiscal years
ended December 31, 1995, 1996, and 1997 (the "MOST RECENT FISCAL YEAR END") for
the Turecamo Entities; and (ii) unaudited combined and combining balance sheets
and statements of income, changes in stockholders' equity, and cash flow (the
"MOST RECENT FINANCIAL STATEMENTS") as of and for the SIX months ended June 30,
1998 (the "MOST RECENT FISCAL MONTH END") for the Turecamo Entities. The
Financial Statements (including the notes thereto) have been prepared in
accordance with GAAP based upon the books and records of the Turecamo Entities
applied on a consistent basis throughout the periods covered thereby, and are
consistent with the books and records of the Turecamo Entities (which books and
records are correct and complete), the Most Recent Fiscal Year End presents
fairly the financial condition of the Turecamo Entities as of such dates and the
results of operations of the Turecamo Entities for such periods, and the Most
Recent Financial Statements presents fairly the financial condition of the
Turecamo Entities as of such dates and the results of operations of the Turecamo
Entities for such periods, in all material respects; PROVIDED, HOWEVER, that the
Most Recent Financial Statements are subject to normal year-end adjustments
(which will not be material individually or in the aggregate) and lack footnotes
and other presentation items. Since the Most Recent Fiscal Year End, there has
been no change in any of the significant accounting (including tax accounting)
policies, practices or procedures of any of the Turecamo Entities.
(f) UNDISCLOSED LIABILITIES. None of the Turecamo Entities has any
Liability, except for (i) Liabilities fully and adequately reflected or reserved
against in the Most Recent Balance Sheet; (ii) Liabilities which have arisen
after the Most Recent Fiscal Year End in the Ordinary Course of Business (none
of which results from, arises out of, relates to, is in the nature of, or was
caused by any breach of contract or, to the Knowledge of the Turecamo Entities,
by any breach of warranty, tort, infringement, or violation of law); and (iii)
Liabilities specifically disclosed in Section (f) of the Turecamo Disclosure
Schedule.
(g) EVENTS SUBSEQUENT TO MOST RECENT FISCAL YEAR END. Since the Most
Recent Fiscal Year End, there has not been any material adverse change in the
business, financial condition, operations, results of operations, or future
prospects of any of the Turecamo Entities. Without limiting the generality of
the foregoing, except as set forth in Section (g) of the Turecamo Disclosure
Schedule, since that date:
(i) none of the Turecamo Entities has sold, leased, transferred,
or assigned any of its assets, tangible or intangible, other than for a
fair consideration in the Ordinary Course of Business;
Annex II-Reps. & Warranties
of Turecamo Entities
(ii) none of the Turecamo Entities has entered into any
agreement, contract, lease, pricing arrangement or license (or series of
related agreements, contracts, leases, arrangements and licenses) either
involving more than $250,000 or outside the Ordinary Course of Business;
(iii) no party (including the Turecamo Entities) has accelerated,
terminated, modified, or cancelled any agreement, contract, lease, or
license (or series of related agreements, contracts, leases, and licenses)
involving more than $250,000 to which any of the Turecamo Entities is a
party or by which any of them or any of their respective assets is bound;
(iv) none of the Turecamo Entities has granted (or, to the
Knowledge of the Turecamo Entities, permitted) any Security Interest upon
any of its assets, tangible or intangible;
(v) none of the Turecamo Entities has made any capital
expenditure (or series of related capital expenditures) either involving
more than $250,000 or outside the Ordinary Course of Business;
(vi) none of the Turecamo Entities has made any capital
investment in, any loan to, or any acquisition of the securities or assets
of, any other Person (or series of related capital investments, loans, and
acquisitions) either involving more than $250,000 or outside the Ordinary
Course of Business;
(vii) none of the Turecamo Entities has issued any note, bond, or
other debt security or created, incurred, assumed, or guaranteed any
indebtedness for borrowed money or capitalized lease obligation either
involving more than $250,000 in the aggregate or outside the Ordinary
Course of Business;
(viii) none of the Turecamo Entities has delayed or postponed the
payment of accounts payable and other Liabilities outside the Ordinary
Course of Business;
(ix) none of the Turecamo Entities has cancelled, compromised,
waived, or released any right or claim (or series of related rights and
claims) either involving more than $250,000 or outside the Ordinary Course
of Business;
(x) there has been no change made or authorized in the
certificate of incorporation or bylaws of any of the Turecamo Entities;
(xi) none of the Turecamo Entities has issued, sold, or otherwise
disposed of any of its capital stock, or granted any options, warrants,
preemptive or other rights to purchase or obtain (including upon
conversion, exchange, or exercise) any of its capital stock;
(xii) none of the Turecamo Entities has declared, set aside, or
paid any dividend or made any distribution with respect to its capital
stock (whether in cash or in kind) or redeemed, purchased, or otherwise
acquired any of its capital stock;
(xiii) none of the Turecamo Entities has experienced any damage,
destruction, or loss (whether or not covered by insurance) individually, or
in the aggregate, more than $250,000 to
Annex II-Reps. & Warranties
of Turecamo Entities
its property;
(xiv) except for the Balance Sheet Distributions and the Tax
Distributions and the lease of the Leased Real Property in Savannah,
Georgia, none of the Turecamo Entities has made any loan to, or entered
into any other transaction with, any of its directors, officers, employees
or stockholders outside the Ordinary Course of Business;
(xv) none of the Turecamo Entities has entered into any
employment contract or collective bargaining agreement, written or oral, or
modified the terms of any existing such contract or agreement;
(xvi) none of the Turecamo Entities has granted any increase in
the base compensation of any of its directors, officers, and employees
outside the Ordinary Course of Business or made any other change in
employment terms or any advances or payments for or to any of its
directors, officers, or employees outside the Ordinary Course of Business;
(xvii) none of the Turecamo Entities has adopted, amended,
modified, or terminated any bonus, profit-sharing, incentive, severance, or
other plan, contract, or commitment for the benefit of any of its
directors, officers, and employees (or taken any such action with respect
to any other Employee Benefit Plan);
(xviii) none of the Turecamo Entities has made or pledged to make
any charitable or other capital contribution outside the Ordinary Course of
Business;
(xix) no material customer, supplier, representative, lessee, or
lessor has terminated or given notice of its intent to terminate its
relationship with any of Turecamo Entities; and
(xx) none of the Turecamo Entities has committed to any of the
foregoing.
(h) LEGAL COMPLIANCE.
(i) Except as set forth on Section (h) of the Turecamo
Disclosure Schedule, each of the Turecamo Entities has complied in all
material respects with all applicable Laws and no action, suit, proceeding,
hearing, investigation, charge, complaint, claim, demand, or notice has
been filed or commenced against any of them alleging any failure so to
comply. Section (h) of the Turecamo Disclosure Schedule lists all
non-compliances with laws for which any of the Turecamo Entities has been
cited by a Governmental Authority during the past 3 years (other than USCG
citations involving fines not exceeding $5,000, individually).
(ii) The Turecamo Entities possess, and are in material
compliance with, the terms and conditions of, all franchises, consents,
approvals, licenses, permits, certificates and other authorizations
("PERMITS") from any Governmental Authority that are necessary for the
ownership of their respective assets and the conduct of the Turecamo
Business as presently conducted in the Ordinary Course of Business. With
respect to each such Permit which is material: (A) the Permit is in full
force and effect; (B) none of the Turecamo Entities is in breach or
default, and, to the Knowledge of the Turecamo Entities, no event has
occurred which, with
Annex II-Reps. & Warranties
of Turecamo Entities
notice or lapse of time, or both, would constitute a breach or default, or
permit termination or modification of the Permit; and (C) the Permit will
continue in full force and effect on identical terms for the benefit of
Xxxxx Enterprises and/or the Turecamo Entities following the consummation
of the transactions contemplated hereby and by the Ancillary Agreements.
(iii) To the Knowledge of the Turecamo Entities, none of the
Turecamo Entities, the Turecamo Stockholders, or any officer, director,
employee, consultant or agent of the Turecamo Entities has made, directly
or indirectly, any payment or promise to pay, or gift or promise to give or
authorized such a promise or gift, of any money or anything of value,
directly or indirectly, to any governmental official, customer or supplier
for the purpose of influencing any official act or decision of such
official, customer or supplier or inducing him, her or it to use his, her
or its influence to affect any act or decision of a Governmental Authority
or customer, under circumstances which could subject any Turecamo Entity or
any Turecamo Stockholder or any officers, directors, employees or
consultants of any Turecamo Entity to administrative or criminal penalties
or sanctions or termination of such customer relationship.
(i) TAX MATTERS.
(i) Except as set forth in Section (i) of the Turecamo
Disclosure Schedule, each of the Turecamo Entities has filed all Tax
Returns that it was required to file. All such Tax Returns were correct
and complete in all material respects. All Taxes owed by any of the
Turecamo Entities reflected on such Tax Returns have been paid. Except as
set forth in Section (i) of the Turecamo Disclosure Schedule, none of the
Turecamo Entities is currently the beneficiary of any extension of time
within which to file any Tax Return. Within the prior eight years, no
claim has ever been made by an authority in a jurisdiction where any of the
Turecamo Entities does not file Tax Returns that it is or may be subject to
taxation by that jurisdiction. There are no Security Interests on any of
the assets of any of the Turecamo Entities that arose in connection with
any failure (or alleged failure) to pay any Tax.
(ii) Each of the Turecamo Entities has withheld and paid all
Taxes required to have been withheld and paid in connection with amounts
paid or owing to any employee, independent contractor, creditor,
stockholder, or other third party, except to the extent that a failure to
withhold or make such payment could not be reasonably expected to have a
Turecamo Material Adverse Effect.
(iii) None of the Turecamo Entities expects any authority to
assess any additional Taxes for any period for which Tax Returns have been
filed by any of the Turecamo Entities. Except as set forth in Section (i)
of the Turecamo Disclosure Schedule, there is no dispute or claim
concerning any Liability with respect to any Taxes (a "TAX LIABILITY") of
any of the Turecamo Entities either (A) claimed or raised by any
Governmental Authority in writing or (B) as to which any of the Turecamo
Entities has Knowledge. Section (i) of the Turecamo Disclosure Schedule
lists all federal, state, local, and foreign income Tax Returns filed with
respect to any of the Turecamo Entities for taxable periods ended on or
after December 31, 1996, indicates those Tax Returns that have been
audited, and indicates those Tax Returns that currently are the subject of
audit. The Turecamo Entities have delivered to Xxxxx Enterprises correct
and complete copies of all federal and state income and other material Tax
Returns, examination
Annex II-Reps. & Warranties
of Turecamo Entities
reports, and statements of deficiencies assessed against or agreed to by
any of the Turecamo Entities since December 31, 1996.
(iv) None of the Turecamo Entities has waived any statute of
limitations in respect of Taxes or agreed to any extension of time with
respect to a Tax assessment or deficiency.
(v) None of the Turecamo Entities has filed a consent under Code
Section 341(f) concerning collapsible corporations. None of the Turecamo
Entities has made any payments, is obligated to make any payments, or is a
party to any agreement that under certain circumstances could obligate it
to make any payments that will not be deductible under Code Section 280G.
None of the Turecamo Entities has been a United States real property
holding corporation within the meaning of Code Section 897(c)(2) during the
applicable period specified in Code Section 897(c)(1)(A)(ii). None of the
Turecamo Entities is a party to any Tax allocation or sharing agreement.
Since December 31, 1989 none of the Turecamo Entities (A) is and has been a
member of an Affiliated Group filing a consolidated federal income Tax
Return and (B) has any Liability for the Taxes of any Person (other than
any of the Turecamo Entities) under Reg. Section 1.1502-6 (or any similar
provision of state, local, or foreign law), as a transferee or successor,
by contract, or otherwise, except as set forth in Section (i) of the
Turecamo Disclosure Schedule.
(vi) Section (i) of the Turecamo Disclosure Schedule sets forth
the following information with respect to each of Turecamo Entities as of
the most recent practicable date (as well as on an estimated pro forma
basis as of the Closing giving effect to the consummation of the
transactions contemplated hereby): (A) the basis of each Turecamo Entity in
its assets; (B) the basis of each Turecamo Stockholder in his or her
Turecamo Stock and (C) the amount of any net operating loss, net capital
loss, unused investment or other credit, allocable to each Turecamo Entity.
(vii) Except as set forth on Section (i) of the Turecamo
Disclosure Schedule, the unpaid Taxes of the Turecamo Entities (A) did not,
as of the Most Recent Fiscal Month End, exceed the reserve for Tax
Liability (rather than any reserve for deferred Taxes established to
reflect timing differences between book and Tax income) set forth on the
Most Recent Fiscal Year End and (B) do not exceed that reserve as adjusted
for the passage of time through the Closing Date in accordance with the
past custom and practice of the Turecamo Entities in filing their Tax
Returns.
(viii) Each Turecamo Entity has elected to be an "S corporation"
pursuant to Section 1362(a) of the Code beginning with the tax year listed
in Section (i) of the Turecamo Disclosure Schedule, and such election has
at all times remained in effect. Each Turecamo Entity has elected (and
such election has at all times remained in effect), or is otherwise
entitled, to be treated in a manner comparable to the federal tax treatment
under Section 1362(a) of the Code, for purposes of the tax imposed on a
corporation by the State of Delaware and in the other specified
jurisdictions set forth on Section (i) of the Turecamo Disclosure Schedule.
Each Turecamo Entity is subject to a tax imposed on a corporation in the
specified jurisdictions set forth on Section (i) of the Turecamo Disclosure
Schedule, with respect to which no analogous election has been made or is
available. Other than upon the consummation of the transactions
contemplated hereby, no action has been taken by any Turecamo Entity which
has resulted, or will result, in
Annex II-Reps. & Warranties
of Turecamo Entities
the termination of the status of such Turecamo Entity as an "S corporation"
pursuant to Section 1362(a) of the Code, or any comparable status with
respect to any other jurisdiction.
(j) REAL PROPERTY.
(i) None of the Turecamo Entities owns or has owned any real
property, other than real property in Charleston, SC owned by White Stack
and to be included in the Balance Sheet Distributions.
(ii) Section (j)(ii) of the Turecamo Disclosure Schedule lists
and describes briefly all real property leased or subleased to, or
otherwise occupied by, any of the Turecamo Entities (all such real
property, together with all buildings and other improvements thereon, the
"LEASED REAL PROPERTY"). As to all existing leases, subleases or other
contracts with respect to the Leased Real Property (the "LEASES"):
(A) each of the Leases is, and, at Closing, each of the
Leases will be, legal, valid, binding, enforceable, and in full force
and effect following the consummation of the transactions contemplated
hereby;
(B) none of the Turecamo Entities is, and to the Knowledge
of the Turecamo Entities, no other party to any of the Leases is, in
breach or default, and no event has occurred which, with notice or
lapse of time, would constitute a breach or default or permit
termination, modification, or acceleration thereunder;
(C) no party to any of the Leases has repudiated any
provision thereof;
(D) there are no disputes, oral agreements, or forbearance
programs in effect as to any of the Leases;
(E) with respect to any of the Leases which is a sublease,
the representations and warranties set forth in subsections (A)
through (E) above are true and correct with respect to the underlying
lease(s);
(F) none of the Turecamo Entities has assigned,
transferred, conveyed, mortgaged, deeded in trust, or encumbered any
interest in any of the Leases;
(G) to the Knowledge of the Turecamo Entities, the
landlords of their respective Leased Real Properties have provided,
and as tenants of their respective Leased Real Properties, the
Turecamo Entities have provided, all approvals of Governmental
Authorities (including licenses and permits) required in connection
with the operation thereof and have been operated and maintained in
accordance with material applicable laws, rules, and regulations; and
(H) all Leased Real Property is supplied with utilities and
other services necessary for the operation of said Leased Real
Property as currently operated.
Annex II-Reps. & Warranties
of Turecamo Entities
(k) INTELLECTUAL PROPERTY.
(i) The Turecamo Entities own or have the right to use pursuant
to license, sublicense, agreement, or permission all material Intellectual
Property necessary for the operation of the Turecamo Business as presently
conducted. The Turecamo Entities possess all right, title and interest in
and to the each material item of owned Intellectual Property, free and
clear of any Security Interest or other restriction or claim. With respect
to each material item of Intellectual Property that any third party owns
and that any Turecamo Entity uses, the license, sublicense, agreement or
permission pursuant to which any Turecamo Entity has the right to use such
item is legal, valid, binding, enforceable and in full force and effect.
Except as disclosed on Section (k) of the Turecamo Disclosure Schedule,
each material item of Intellectual Property owned or used by the Turecamo
Entities immediately prior to the Closing hereunder will be owned or
available for use by the Turecamo Entities on identical terms and
conditions immediately subsequent to the Closing hereunder.
(ii) Section (k) of the Turecamo Disclosure Schedule identifies
each material item of Intellectual Property (excluding Section (e) of the
definition of Intellectual Property) owned or used by the Turecamo Entities
in the Turecamo Business. Section (k)(ii) of the Turecamo Disclosure
Schedule identifies each license, agreement, or other permission which any
Turecamo has granted to any third party with respect to any of its material
Intellectual Property (together with any exceptions). The Turecamo Entities
have delivered to Xxxxx Enterprises correct and complete copies of all such
licenses, agreements, and permissions (as amended to date).
(iii) To the Knowledge of the Turecamo Entities, none of the
Turecamo Entities has interfered with, infringed upon, misappropriated, or
otherwise come into conflict with any Intellectual Property rights of third
parties, nor has any Turecamo Entity ever received any charge, complaint,
claim, demand, or notice alleging any such interference, infringement,
misappropriation, or violation (including any claim that any Turecamo
Entity must license or refrain from using any Intellectual Property rights
of any third party, except where such interference, infringement,
misappropriation would not reasonably be expected to have a Turecamo
Material Adverse Effect). To the Knowledge of the Turecamo Entities, no
third party has interfered with, infringed upon, misappropriated, or
otherwise come into conflict with any Intellectual Property rights of any
Turecamo Entity, except where such interference, infringement,
misappropriation would not reasonably be expected to have a Turecamo
Material Adverse Effect.
(l) TANGIBLE PROPERTY. Section (l) of the Disclosure Schedule sets forth
all interests owned or claimed by each Turecamo Entity (including, without
limitation, options) in or to Tangible Property (as defined below) which are
material to the Turecamo Business and are not reflected on the Most Recent
Balance Sheet and have not been sold or disposed of in the ordinary course of
business since the Most Recent Fiscal Month End. The Tangible Property of the
Turecamo Entities that is material to the Turecamo Business is in good operating
condition and repair. For purposes hereof, "TANGIBLE PROPERTY" means equipment
(other than Vessels), furniture, leasehold improvements, fixtures, vehicles,
structures, any related capitalized items and other tangible property and which
is treated by any Turecamo Entity as depreciable or amortizable property.
Annex II-Reps. & Warranties
of Turecamo Entities
(m) VESSELS. Each of the Turecamo Entities owns and is lawfully possessed
of (i) good and marketable title to the whole of each of the vessels listed in
Section (m)(i) of the Turecamo Disclosure Schedule as being owned by such entity
(except such vessels which are indicated as being owned jointly with others on
the Turecamo Disclosure Schedule), free and clear of any Security Interest or
any commitment to make such vessel available for charter or sale or use by any
governmental authority, except for the mortgages listed on Section (m)(i) of the
Turecamo Disclosure Schedule and other liens expressly permitted by such
mortgages, and (ii) good and valid bareboat charters of the vessels listed in
Section (m)(ii) of the Turecamo Disclosure Schedule identifying such charters.
True, complete and correct copies of such mortgages and charters have been
delivered to Xxxxx Enterprises. The vessels listed on Section (m) of the
Turecamo Disclosure Schedule are referred to in this Agreement as the "VESSELS".
Each of the Vessels is duly documented in the applicable Turecamo Entity's name
under the laws and flag of the United States of America and satisfies the
citizenship, place of construction and/or repair requirements and other similar
requirements for coastwise documentation, and all necessary coastwise
certificates, licenses and permits relating thereto are valid and current. Each
of the Vessels is well and sufficiently tackled, apparelled, furnished and
equipped and, except as set forth on Section 4(n)(iii) of the Turecamo
Disclosure Schedule, is free of outstanding requirements of the United States
Coast Guard ("USCG"), and is in good operating condition, suitable to its
intended trade and has no deficiencies to correct a condition customarily
considered to be necessary to the safety or operation of such Vessel or her crew
or which must be corrected before such Vessel is acceptable for customary marine
insurance. Except as set forth in Section (m) of the Turecamo Disclosure
Schedule, each of the Vessels now has valid and current USCG Inspection
Certificates, where applicable, and all other certificates, licenses and permits
(including, Certificates of Financial Responsibility (Water Pollution)), which
are required by applicable law or regulation. Set forth on Section (m) of the
Turecamo Disclosure Schedule is a list of the current ABS Classification of each
Turecamo Vessel, if any.
(n) TITLE TO ASSETS. The Turecamo Entities have good and marketable title
to, or a valid leasehold interest in, the properties and assets used by them or
shown on the Most Recent Balance Sheet or acquired after the date thereof, free
and clear of all Security Interests, except for those Security Interests set
forth in Section (n) of the Turecamo Disclosure Schedule or permitted by the
mortgages listed on Section (m)(i) of the Turecamo Disclosure Schedule.
(o) CONTRACTS. Section (o) of the Turecamo Disclosure Schedule lists all
purchase orders, contracts, commitments, obligations, plans, agreements,
instruments, arrangements, understandings, bids, undertakings and proposals,
written or oral, including all amendments and supplements thereto, or series of
any of the foregoing, to which any Turecamo Entity is a party or by which any of
their respective assets or the Turecamo Business are bound involving
consideration in excess of $250,000 per year or which are otherwise material to
any Turecamo Entity (the "CONTRACTS"), including, without limitation, the
following contracts and agreements (written or oral) but excluding, in each
case, shipdocking contracts cancellable on 30 days or less notice:
(i) agreements with any current or former officer, director or
shareholder;
(ii) agreements with any labor union or association representing
any employee;
(iii) agreements involving the provision of services by any
Turecamo Entity, whether or not material to the Turecamo Business, under
which the payments to such Turecamo
Annex II-Reps. & Warranties
of Turecamo Entities
Entity are inadequate to cover the cost of providing such services;
(iv) agreements for the grant to any person of any rights to
purchase any of the assets, properties or businesses of any Turecamo
Entity;
(v) joint venture, partnership, and other similar agreements;
(vi) agreements under which any Turecamo Entity has guaranteed
the obligations of any Person;
(vii) agreements relating to any indebtedness or deferred purchase
obligation of any Turecamo Entity;
(viii) agreements under which any Turecamo Entity agrees to
indemnify any person or to share Liability with any person, other than the
TES standard form contract, an example of which is included in Section (o)
of the Turecamo Disclosure Schedule;
(ix) agreements limiting the freedom of any Turecamo Entity to
engage in any line of business, compete with any person or carry on its
business in any geographic area;
(x) Employee Benefit Plans;
(xi) agreements relating to the acquisition by any Turecamo
Entity of any operating business or the capital stock of any Person; and
(xii) agreements for the payment of fees or other consideration to
any Turecamo Stockholder, officer or director of any Turecamo Entity or any
other entity in which any of the foregoing has an interest.
The Turecamo Entities have made available to Xxxxx and Xxxxx Enterprises a
correct and complete copy of each written Contract listed in Section (o) of the
Turecamo Disclosure Schedule (as amended to date) and a written summary setting
forth the terms and conditions of each oral Contract referred to in Section (o)
of the Turecamo Disclosure Schedule. Other than purchase orders cancelable upon
30 days' or fewer notice, with respect to each such Contract: (A) the Contract
is legal, valid, binding, enforceable, and in full force and effect; (B) no
Turecamo Entity is, and, to the Knowledge of the Turecamo Entities, no other
party is, in breach or default, and no event has occurred which with notice or
lapse of time would constitute a breach or default, or permit termination,
modification, or acceleration, under the Contract; and (C) no Turecamo Entity,
has and, to the Knowledge of the Turecamo Entities, no other party has,
repudiated any provision of any Contract. Except as set forth in Section (o) of
the Turecamo Disclosure Schedule, no purchase Contracts of any of the Turecamo
Entities are in excess of the normal and ordinary requirements of the Turecamo
Business. There are no outstanding powers of attorney executed on behalf of any
Turecamo Entity. Except as listed on Section (o) of the Turecamo Disclosure
Schedule, no Turecamo Entity is a guarantor or otherwise liable for any
Liability or obligation (including Indebtedness) of any other Person.
(p) NOTES AND ACCOUNTS RECEIVABLE. Except as set forth in Section (p) of
the Turecamo Disclosure
Annex II-Reps. & Warranties
of Turecamo Entities
Schedule, all notes and accounts receivable of the Turecamo Entities are
reflected properly on their books and records, are valid receivables subject to
no set off or counterclaim, are subject to adequate reserves established in a
manner consistent with past practice, and were incurred in the Ordinary Course
of Business of the Turecamo Entities for bona fide services rendered.
(q) INSURANCE. Section (q) of the Turecamo Disclosure Schedule sets forth
the following information with respect to each insurance policy (including
protection and indemnity policies and policies providing property, casualty,
liability, and workers' compensation coverage and bond and surety arrangements)
to which any of the Turecamo Entities has been a party at any time within the
past 3 years:
(i) the name, address, and telephone number of the agent;
(ii) the name of the insurer, the name of the policyholder, and
the name of each covered insured;
(iii) the policy number and the period of coverage;
(iv) the scope (including an indication of whether the coverage
was on a claims made, occurrence, or other basis) and amount (including a
description of how deductibles and ceilings are calculated and operate) of
coverage;
(v) a description of annual premiums payable, deductibles and
limits with respect thereto and any retroactive premium adjustments or
other loss-sharing arrangements; and
(vi) the claims history of the Turecamo Entities with respect to
such policy.
With respect to each such insurance policy which is an occurrence based policy
or which is in effect for the current policy year: (A) the policy is legal,
valid, binding, enforceable, and in full force and effect; (B) except as set
forth in Section (q) of the Turecamo Disclosure Schedule, the policy will not be
adversely affected by the consummation of the transactions contemplated hereby;
(C) no Turecamo Entity nor any other party to the policy is in breach or default
(including with respect to the payment of premiums or the giving of notices),
and no event has occurred which, with notice or the lapse of time, would
constitute such a breach or default, or permit termination, modification, or
acceleration, under the policy; and (D) no party to the policy has repudiated
any provision thereof. Without limiting the foregoing, the Turecamo Entities
have kept all Vessels owned or operated by them insured in accordance with
customary practices in the industry. Section (q) of the Turecamo Disclosure
Schedule describes any self-insurance arrangements affecting any of the Turecamo
Entities.
(r) LITIGATION. Section (r) of the Turecamo Disclosure Schedule sets
forth each instance in which any of the Turecamo Entities (i) is subject to any
outstanding injunction, judgment, order, decree, ruling, or charge or (ii) is a
party or, to the Knowledge of any of the Turecamo Entities is threatened to be
made a party to any action, suit, proceeding, hearing, or investigation of, in,
or before any Governmental Authority or before any arbitrator. None of the
actions, suits, proceedings, hearings, and investigations set forth in Section
(r) of the Turecamo Disclosure Schedule would reasonably be expected to have a
Turecamo Material Adverse Effect. None of the Turecamo Entities has any
Knowledge that any
Annex II-Reps. & Warranties
of Turecamo Entities
such action, suit, proceeding, hearing, or investigation may be brought or
threatened against any of the Turecamo Entities.
(s) EMPLOYEES. To the Knowledge of the Turecamo Entities, no executive,
key employee, or group of employees has any plans to terminate employment with
any of the Turecamo Entities. Except as set forth on Section (s) of the
Turecamo Disclosure Schedule, no Turecamo Entity is a party to or bound by any
collective bargaining agreement, nor is any of them experiencing any strikes,
grievances, claims of unfair labor practices, or other collective bargaining
disputes. No Turecamo Entity nor any stockholder of any Turecamo Entity has
committed any unfair labor practice. No Turecamo Entity has any Knowledge of
any organizational effort presently being made or threatened by or on behalf of
any labor union with respect to employees of any of the Turecamo Entities. All
salaried employees of the Turecamo Entities are listed in Section (s) of the
Turecamo Disclosure Schedule, which includes the salary level of each such
employee. The qualifications of each employee of the Turecamo Entities for
employment under applicable immigration laws have been reviewed, a properly
completed Form I-9 is on file with respect to each such employee, as applicable,
and each of the Turecamo Entities has complied with the Immigration and
Nationality Act, as amended from time to time, and the rules and regulations
promulgated thereunder, and the Turecamo Entities have no Knowledge of any basis
for any claim that any Turecamo Entity is not in compliance with the terms
thereof.
(t) EMPLOYEE BENEFITS. Section (t) of the Turecamo Disclosure Schedule
lists each Employee Benefit Plan maintained by any of the Turecamo Entities or
to which any of the Turecamo Entities is obligated (or at any time within the
last six years, has been obligated) to contribute or with respect to which any
of the Turecamo Entities has any Liability (the "TURECAMO EMPLOYEE BENEFIT
PLANS"). None of the Turecamo Employee Benefit Plans that are not qualified
plans under Section 401(a) of the Code and exempt from income taxation under
Section 501(a) of the Code provides or promises benefits to ex-employees
(including retirees) of any of the Turecamo Entities and their dependents and
beneficiaries, except as specifically required under Section 4980B of the Code
with respect to continuation of coverage. All Turecamo Employee Benefit Plans
have been operated in accordance with their terms. All Turecamo Employee
Benefit Plans that are not Multiemployer Plans and that are subject to the terms
of ERISA, the Code, or other statutes, laws, ordinances, codes, rules and
regulations comply in all material respects with ERISA, the Code, and such other
statutes, laws, ordinances, codes, rules and regulations, as applicable. In the
case of each Turecamo Employee Benefit Plan which is intended to be a qualified
plan under Section 401(a) of the Code and exempt from income taxation under
Section 501(a) of the Code, a determination has been received from the
appropriate District Director of the Internal Revenue Service that such plan is
qualified under Section 401(a) of the Code and the trust created thereunder is
exempt from federal taxation under Section 501(a) of the Code. No such Turecamo
Employee Benefit Plan has incurred any accumulated funding deficiency (within
the meaning of ERISA or the Code) and no Turecamo Entity has Liability or
potential Liability on account of an accumulated funding deficiency with respect
to any Turecamo Employee Benefit Plan. There has been no transaction involving
any Turecamo Employee Benefit Plan which is a "prohibited transaction" under
ERISA or the Code in connection with which any of the Turecamo Entities would be
subject to Liability under ERISA or any Tax Liability imposed by the Code, or
which would subject any Turecamo Employee Benefit Plan or any of the Turecamo
Entities to a penalty under ERISA, the Code or any other statute, law,
ordinance, code, rule or regulation. There has been no complete or partial
termination of any Turecamo Employee Benefit Plan. None of the Turecamo
Employee Benefit Plans provides for additional or accelerated payments or other
consideration to be made on account of the transactions
Annex II-Reps. & Warranties
of Turecamo Entities
contemplated hereby.
The market value of assets under each Turecamo Employee Benefit Plan
equals or exceeds the present value of all vested and nonvested liabilities
thereunder determined in accordance with the provisions of ERISA and the Code
applicable to an Employee Benefit Plan terminating on the date such
determination is made.
No suit, action, claim, proceeding, investigation or arbitration has
been made or instituted or, to the Knowledge of the Turecamo Entities,
threatened, with respect to any Turecamo Employee Benefit Plan or any assets
thereof; except for routine claims for benefits made in accordance with the
terms thereof.
All contributions or payments required to be made to such Turecamo
Employee Benefit Plans by their terms, the terms of any relevant collective
bargaining agreement(s) or any other applicable law, before or after the Closing
Date, with respect to all periods or events occurring prior to the Closing Date
(including all insurance premiums) have been properly paid or accrued (to the
extent required under GAAP, ERISA or the Code) on the books of account of the
Turecamo Entities prior to the Closing Date (including, without limitation, a
PRO RATA share with respect to any period including the Closing Date based on
the ratio of the number of days in such period to the total number of days in
the fiscal year of the applicable Turecamo Employee Benefit Plan). The
Liabilities for all benefits provided pursuant to the Turecamo Employee Benefit
Plans have been truly and accurately provided for on the books of account of the
Turecamo Entities.
True, complete and accurate copies of the documents setting forth the
terms of each Turecamo Employee Benefit Plan, including, without limitation,
plans, agreements, amendments, trusts and all related contracts and other
agreements (including, without limitation, corporate resolutions and minutes
relating to any Turecamo Employee Benefit Plan) and, where applicable, copies of
each Turecamo Employee Benefit Plan's: (i) most recent summary plan
descriptions and modifications thereto; (ii) notices distributed to employees,
consultants, agents, dependents and other beneficiaries with regard to any
Turecamo Employee Benefit Plan and any continuation of coverage required under
law; (iii) most recent favorable Internal Revenue Service determination letters;
(iv) two most recent annual reports (IRS Forms 5500), including, without
limitation, audited financial statements (if any) and all schedules thereto; and
(v) two most recent actuarial reports, have heretofore been delivered or made
available to Xxxxx and Xxxxx Enterprises. There are no oral modifications to
any of such Turecamo Employee Benefit Plans.
For purposes of this Section (t), "Turecamo" includes Maritime and
any trade or business (whether or not incorporated) that is a member of the same
"controlled group" of corporations as, or is treated as being under "common
control" with, within the meaning of Sections 414(b), (c), (m) and (o) of the
Code and the Treasury Regulations promulgated thereunder, Maritime.
(u) ENVIRONMENTAL, HEALTH, AND SAFETY MATTERS.
(i) Except as set forth on Section (u) of the Turecamo
Disclosure Schedule:
(A) each Turecamo Entity is in material compliance with
applicable
Annex II-Reps. & Warranties
of Turecamo Entities
Environmental Laws, and within the period of all applicable statutes
of limitation has been in such compliance; and there are no
circumstances that are reasonably likely to prevent or interfere with
such compliance in the future;
(B) each Turecamo Entity holds Environmental Permits
necessary to conduct its operations as they are currently conducted;
Section (u)(i) of the Turecamo Disclosure Schedule is a true and
complete list of all such Environmental Permits and, where applicable,
their expiration dates; no Turecamo Entity has reason to believe that
any such Environmental Permits (1) will not be renewed, or (2) will be
renewed under terms that are reasonably likely to have a Turecamo
Material Adverse Effect;
(C) there are no Materials of Environmental Concern in
violation of Environmental Laws or Environmental Permits present at,
and no Materials of Environmental Concern are or have been in any way
released or threatened to be released from, any property currently or
formerly owned, leased or otherwise operated by the Turecamo Entities
in violation of Environmental Laws or Environmental Permits, or as a
result of present or former operations of the Turecamo Entities;
(D) no Turecamo Entity is currently in receipt of any
Environmental Claim, and no Environmental Claim against any Turecamo
Entity is currently being threatened;
(E) no Turecamo Entity has entered into, agreed to, nor is
any Turecamo Entity otherwise subject to any judgment, decree, order
or similar requirement under any Environmental Law, nor is any
Turecamo Entity negotiating any such judgment, decree, order or
requirement;
(F) no Turecamo Entity has contractually assumed or
retained any liabilities or obligations, contingent or otherwise, in
connection with any Environmental Law;
(G) neither this Agreement nor the consummation of the
transactions contemplated hereby will result in any obligations for
site investigation or cleanup, or notification to or consent of
Governmental Authorities or third parties, pursuant to any of the
so-called "transaction-triggered" or "responsible property transfer"
Environmental Laws; and
(H) for purposes of this Agreement, the following terms
shall have the following meanings:
"ENVIRONMENTAL CLAIM" means any written notice from any Person
alleging potential liability (including, without limitation, potential
liability for investigatory costs, cleanup costs, governmental response
costs, natural resources damages, property damages, personal injuries,
fines or penalties) arising out of, based on or resulting from (a) the
presence, or release into the environment, of any Material of Environmental
Concern at any location, whether or not owned, leased or otherwise operated
by any of the Turecamo Entities or (b) circumstances forming the basis of
any violation, or alleged violation, of any Environmental Law.
Annex II-Reps. & Warranties
of Turecamo Entities
"ENVIRONMENTAL LAWS" means any and all Laws, any Governmental
Authority regulating, relating to or imposing liability or standards of
conduct concerning protection of the environment or of human health, or
employee health and safety.
"ENVIRONMENTAL PERMIT" means any Permit required under any
Environmental Law.
"MATERIALS OF ENVIRONMENTAL CONCERN" means any gasoline or petroleum
(including crude oil or any fraction thereof) or petroleum products,
polychlorinated biphenyls, urea-formaldehyde insulation, asbestos,
pollutants, contaminants, radioactivity, whether or not any such substance
or force is defined as hazardous or toxic under any Environmental Law, that
is regulated pursuant to or could give rise to liability under any
Environmental Law.
(ii) Set forth on Section (u)(ii) of the Turecamo Disclosure
Schedule is a complete list of reports, studies, assessments, audits, and
other similar documents in the possession or control of the Turecamo
Entities that address any issues of actual or potential noncompliance with,
or actual or potential liability under, any Environmental Laws that may
affect the Turecamo Entities. True, correct and complete copies of all
such reports have been provided or made available to Xxxxx and Xxxxx
Enterprises prior to the signing hereof.
(iii) Except as set forth on Section (u)(iii) of the Turecamo
Disclosure Schedule, no Environmental Law requires any Permit, consent, or
other authorization to be obtained from, or any application, filing, or
other notice to be given to, any person in connection with this Agreement
or any action contemplated by this Agreement.
(iv) None of the matters set forth on Section (u)(i) of the
Turecamo Disclosure Schedule, or any aggregation thereof, could reasonably
be expected to result in a Turecamo Material Adverse Effect.
(v) CERTAIN BUSINESS RELATIONSHIPS WITH THE TURECAMO ENTITIES. Except as
set forth in Section (v) of the Turecamo Disclosure Schedule, none of the
Turecamo Stockholders or any of their Affiliates has been involved in any
business arrangement or relationship with any of the Turecamo Entities within
the past 36 months, and none of the Turecamo Stockholders or any of their
Affiliates owns any asset, tangible or intangible, which is used in the Turecamo
Business.
(w) BROKERS' FEES. None of the Turecamo Entities or any of its
stockholders has any Liability or obligation to pay any fees or commissions to
any broker, finder, or agent with respect to the transactions contemplated by
this Agreement or by the Ancillary Agreements, except to The Beacon Group
Capital Services, LLC ("BEACON"), whose fees shall be paid as described in
Section 10(k) of this Agreement. Except for such obligations to Beacon, none of
the Turecamo Entities, the Turecamo Stockholders or any of their officers or
directors have incurred any liability for any brokerage, finder's, financial
advisory or other fee or commission or similar form of compensation in
connection with this Agreement or the Ancillary Agreements or the transactions
contemplated hereby or thereby.
(x) CUSTOMERS; SUPPLIERS. Section (x) of the Turecamo Disclosure Schedule
lists, for each of the fiscal years ended December 31, 1996 and 1997, each
customer or group of affiliated customers which accounted for more than five
percent (5%) of the revenues of the Turecamo Entities as a group
Annex II-Reps. & Warranties
of Turecamo Entities
during such period and each supplier or group of affiliated suppliers which
provided more than five percent (5%) of the requirements of the Turecamo
Entities as a group during such period. The relationships of the Turecamo
Entities with their respective customers and suppliers set forth in Section (x)
of the Turecamo Disclosure Schedule are good commercial working relationships
and, except as set forth on Section (x) of the Turecamo Disclosure Schedule,
during the last twelve months, no such customer or supplier of any Turecamo
Entity listed on Section (x) of the Turecamo Disclosure Schedule has cancelled
or otherwise terminated, or, to the Knowledge of the Turecamo Entities,
threatened to cancel or otherwise terminate, its relationship with any Turecamo
Entity or decreased, or threatened to decrease or limit in any material respect,
its usage of the services of any Turecamo Entity or its provision of services to
any Turecamo Entity. None of the Turecamo Entities or any of the Turecamo
Stockholders has any notice that any customer or supplier set forth in Section
(x) of the Turecamo Disclosure Schedule intends to cancel or otherwise modify
its relationship with any Turecamo Entity or to decrease or limit its usage of
the services of any Turecamo Entity or its provision of services to any Turecamo
Entity, and the transactions contemplated hereby will not, to the Knowledge of
the Turecamo Entities, adversely affect the relationship of any Turecamo Entity
with any of its respective customers or suppliers set forth in Section (x) of
the Turecamo Disclosure Schedule.
(y) DISCLOSURE. The representations and warranties contained in this
Annex II do not contain any untrue statement of a material fact or omit to state
any material fact necessary in order to make the statements and information
contained in this Annex II not misleading.
Annex III-Representations
& Warranties of Each
Xxxxx Stockholder
ANNEX III
REPRESENTATIONS AND WARRANTIES OF EACH XXXXX STOCKHOLDER
(a) TITLE TO SHARES. Such Xxxxx Stockholder is the record and beneficial
owner of the shares of Xxxxx Stock set forth opposite such Xxxxx Stockholder's
name on Schedule 1 hereto, free and clear of any Security Interest, and has full
power and authority to convey such shares set forth opposite such Xxxxx
Stockholder's name on Schedule 1 hereto, free and clear of any Security Interest
(other than as may be contained in any applicable stockholder agreement), and,
upon delivery of such shares as herein provided, Xxxxx Enterprises will acquire
good, marketable and valid title thereto, free and clear of any Security
Interest (other than Security Interests granted by Xxxxx Enterprises). Such
Xxxxx Stockholder is a "citizen" within the meaning of Section 2(c) of the
Shipping Act of 1916, as amended.
(b) AUTHORITY RELATIVE TO THIS AGREEMENT. Such Xxxxx Stockholder has the
full legal right and power and all authority and approval required to enter
into, execute and deliver this Agreement and any applicable Ancillary Agreements
and to perform fully such Xxxxx Stockholder's obligations hereunder and
thereunder. This Agreement has been duly executed and delivered by such Xxxxx
Stockholder and constitutes (and upon due execution and delivery, each of the
Ancillary Agreements to which such Xxxxx Stockholder is intended to be a party
will constitute) the legal, valid and binding obligation of such Xxxxx
Stockholder enforceable against such Xxxxx Stockholder in accordance with its
terms.
(c) ABSENCE OF CONFLICTS. The execution and delivery of this Agreement and
the Ancillary Agreements and the consummation of the transactions contemplated
hereby and thereby and the performance by such Xxxxx Stockholder of this
Agreement and the Ancillary Agreements in accordance with their respective terms
and conditions will not: (i) require such Xxxxx Stockholder to obtain any
Permit, or any notice to, filing or registration with, or permit, license,
variance, waiver, exemption, franchise, order, consent, authorization or
approval of, any other person except for notices and consents disclosed on
Section (c) of the Xxxxx Stockholder Disclosure Schedule; (ii) violate, conflict
with or result in a breach of any provision of or constitute a default (or an
event which, with notice or lapse of time or both, would constitute a breach or
default) under, or result in the termination of, or accelerate the performance
required by, or result in the creation of any Security Interest on the Xxxxx
Stock held by such Xxxxx Stockholder or upon the assets, properties or
businesses of Xxxxx under any of the terms, conditions or provisions of any
contract or other agreement (written or oral) to which such Xxxxx Stockholder is
a party (and to which Xxxxx or any Subsidiary is not a party) or by or to which
such Xxxxx Stockholder or the shares of Xxxxx Stock held by such Xxxxx
Stockholder are bound or subject; or (iii) subject to compliance with the
Xxxx-Xxxxx-Xxxxxx Act, (A) to the knowledge of such Xxxxx Stockholder, violate
any Law or (B) violate any outstanding judgment, ruling, order, writ, injunction
or award of any Governmental Authority, in the case of (A) or (B), which is
applicable to such Xxxxx Stockholder or to the Xxxxx Stock held by such Xxxxx
Stockholder.
(d) SECURITIES LAW MATTERS. Such Xxxxx Stockholder hereby confirms that he
or she has been informed that the shares of the Xxxxx Enterprises Common Stock
being issued to him, her or it are restricted securities under the Securities
Act and may not be resold or transferred unless first registered under the
federal securities laws or unless an exemption from such registration is
available.
Accordingly, such Xxxxx Stockholder hereby acknowledges that he or she is
prepared to hold the Xxxxx Enterprises Common Stock for an indefinite period
and that the Xxxxx Stockholder is aware that Rule 144 of the Commission
issued under the Securities Act is not presently available to exempt the
resale of the Xxxxx Enterprises Common Stock from the registration
requirements of the Securities Act. Such Xxxxx Stockholder is aware of the
adoption of Rule 144 promulgated under the Securities Act by the Commission,
which permits limited public resales of securities acquired in a nonpublic
offering, subject to the satisfaction of certain conditions. Such Xxxxx
Stockholder understands that Rule 144 is conditioned upon, among other
things: (i) the availability of certain current public information about
Xxxxx Enterprises, (ii) the resale occurring not earlier than one (1) year
after the party has purchased and paid for the securities to be sold, (iii)
the sale being made through a broker in an unsolicited "broker's
transaction", and (iv) the amount of securities being sold during any
three-month period not exceeding specified limitations. Such Xxxxx
Stockholder understands that Xxxxx Enterprises may not be satisfying the
current public information requirement of Rule 144 at the time such Xxxxx
Stockholder wishes to sell the Xxxxx Enterprises Common Stock or other
conditions under Rule 144. If so, such Xxxxx Stockholder understands that he
or she may be precluded from selling the securities under Rule 144 even if
the one-year holding period of said Rule has been satisfied. Prior to the
acquisition of the shares of Xxxxx Enterprises Common Stock by such Xxxxx
Stockholder, each such Xxxxx Stockholder acquired sufficient information
about Xxxxx Enterprises to reach an informed and knowledgeable decision to
acquire the Xxxxx Enterprises Common Stock. Such Xxxxx Stockholder has such
knowledge and experience in financial and business matters so as to make him
or her capable of utilizing said information to evaluate the risks of the
prospective investment and to make an informed investment decision. Such
Xxxxx Stockholder is able to bear the economic risk of his or her investment
in the Xxxxx Enterprises Common Stock. Such Xxxxx Stockholder is an
"Accredited Investor", as defined in the rules and regulations promulgated
under the Securities Act, and is a resident of the jurisdiction listed on
Schedule 1. Such Xxxxx Stockholder also acknowledges that the shares of Xxxxx
Enterprises Common Stock to be received by him, her or it will be subject to
additional restrictions on transfer and legend requirements under the
Stockholders Agreement.
(e) INTEREST IN COMPETITORS AND SUPPLIERS. Except as set forth on Section
(e) of the Xxxxx Stockholder Disclosure Schedule, neither such Xxxxx Stockholder
nor any Affiliate of such Xxxxx Stockholder (i) has any material direct or
indirect interest in any Person (other than, upon the Closing, Xxxxx
Enterprises) engaged or involved in any business which is competitive in any way
with the business of Xxxxx Enterprises and its Subsidiaries or (ii) has any
material direct or indirect interest in any Person which is a lessor of assets
or properties to, material supplier of, or provider of services to, Xxxxx
Enterprises or any of its Subsidiaries.
ANNEX IV
REPRESENTATIONS AND WARRANTIES OF XXXXX ENTERPRISES
(a) ORGANIZATION. Xxxxx Enterprises is a corporation duly
organized, validly existing and in good standing under the laws of the State of
Delaware, and has the requisite corporate power and lawful authority to own,
lease and operate its assets, properties and business and to carry on its
business as it is now being conducted. Xxxxx Enterprises is a "citizen" within
the meaning of Section 2(c) of the Shipping Act of 1916 as amended.
(b) AUTHORITY RELATIVE TO THIS AGREEMENT. Xxxxx Enterprises
has the requisite corporate power and authority to enter into, execute and
deliver this Agreement and the Ancillary Agreements and to perform fully its
obligations hereunder and thereunder. The execution and delivery of this
Agreement and the Ancillary Agreements, and the consummation by Xxxxx
Enterprises of the transactions contemplated hereby and thereby have been duly
authorized by the Board of Directors of Xxxxx Enterprises and no other corporate
proceedings on the part of Xxxxx Enterprises are necessary to authorize the
execution, delivery and performance of this Agreement or the Ancillary
Agreements and the transactions contemplated hereby and thereby. This Agreement
has been duly executed and delivered by Xxxxx Enterprises and constitutes (and,
upon due execution and delivery, each of the Ancillary Agreements constitutes or
will constitute) the legal, valid and binding obligation of Xxxxx Enterprises
enforceable against Xxxxx Enterprises in accordance with its terms.
(c) ABSENCE OF CONFLICTS. The execution and delivery of this
Agreement and the Ancillary Agreements, the consummation of the transactions
contemplated hereby and thereby and compliance with the provisions hereof and
thereof will not: (i) require any Permit, or any notice to, filing or
registration with, or permit, license, variance, waiver, exemption, franchise,
order, consent, authorization or approval of, any other person except for
notices and consents disclosed on Section(c) of the Xxxxx Enterprises Disclosure
Schedule; (ii) violate, conflict with or result in a breach of any provision of
or constitute a default (or an event which, with notice or lapse of time or
both, would constitute a default) under, or result in the termination of, or
accelerate the performance required by, or result in a creation of any Security
Interest upon any of the assets, properties or businesses of Xxxxx Enterprises
or any of its Subsidiaries under, any of the terms, conditions or provisions of
(x) the Certificate of Incorporation or By-laws of Xxxxx Enterprises or (y) any
contract or other agreement (written or oral) to which Xxxxx Enterprises or any
of its assets, properties or businesses is subject; or (iii) subject to
compliance with the Securities Act, the Securities Exchange Act, the
Xxxx-Xxxxx-Xxxxxx Act, and applicable blue sky laws, violate any order, writ,
injunction or Law of any Governmental Authority which is applicable to Xxxxx
Enterprises or any of its assets, properties or businesses, except, in the case
of clauses (ii) (y) and (iii) above, for such violations, conflicts, breaches,
defaults, terminations, accelerations or creations of Security Interest which
would not, individually or in the aggregate, have a material adverse effect on
Xxxxx Enterprises or the consummation of the transactions contemplated hereby or
by the Ancillary Agreements.
(d) CAPITALIZATION OF XXXXX ENTERPRISES. The authorized
capital stock of Xxxxx Enterprises will, upon the filing of the Restated
Certificate, consist of 7,350,000 shares, (i) 200,000 of which are designated
Xxxxx Enterprises Common Stock, par value $0.001 per share (the "Xxxxx
Enterprises Common Stock"), and (ii) 7,150,000 of which are designated Xxxxx
Enterprises Preferred Stock, par value $0.001 per share (the "Xxxxx Enterprises
Preferred Stock"). Immediately prior to the Closing, 10 shares of Xxxxx
Enterprises Common Stock and no Xxxxx Enterprises Preferred Stock will be issued
and outstanding. Upon consummation of the transactions contemplated by this
Agreement, the
Annex IV-Representations
& Warranties of Xxxxx Enterprises
capitalization of Xxxxx Enterprises as of the Closing Date shall be as set forth
in Schedule 1 hereto. The relative rights, privileges, and preferences of the
Xxxxx Enterprises Common Stock and Xxxxx Enterprises Preferred Stock will be as
stated in the Restated Certificate. The shares of Xxxxx Enterprises Common Stock
issuable to the Turecamo Stockholders pursuant to the Agreement will, when so
issued and delivered in accordance with Section2(a) of the Agreement, be duly
authorized, validly issued, fully paid and nonassessable, free from preemptive
or other rights of third parties, and free from all liens and encumbrances
(other than as set forth in the Stockholders Agreement). Except as set forth in
Section(d) of the Xxxxx Enterprises Disclosure Schedule, there are no options,
warrants, conversion privileges, or preemptive or other rights or agreements
presently outstanding to purchase or otherwise acquire any shares of the capital
stock or other debt or equity securities of Xxxxx Enterprises. Xxxxx Enterprises
is not a party or subject to any agreement or understanding, and, to Xxxxx
Enterprises's knowledge, except as contemplated hereby and by the Ancillary
Agreements, there is no agreement or understanding that affects or relates to
the transfer, voting or giving of written consents with respect to any security,
or the voting by a director, of Xxxxx Enterprises.
(e) PURCHASE FOR INVESTMENT. Xxxxx Enterprises acknowledges
that the Turecamo Stock has not been registered under the Securities Act or
under any state securities Laws. Xxxxx Enterprises is not an "underwriter" (as
such term is defined under the Securities Act), and is acquiring the Turecamo
Stock solely for investment with no present intention to distribute any of the
Turecamo Stock to any person, and Xxxxx Enterprises will not sell or otherwise
dispose of any of the Turecamo Stock, except in compliance with the registration
requirements or exemption provisions under the Securities Act and the rules and
regulations promulgated thereunder, and any other applicable securities laws.
(f) CONDUCT OF BUSINESS. Prior to the Closing Date, Xxxxx
Enterprises has not engaged in any business activity or held any assets.
ANNEX V
REPRESENTATIONS AND
WARRANTIES OF XXXXX
(a) ORGANIZATION, QUALIFICATION, AND CORPORATE POWER. Xxxxx
and each of its Subsidiaries is a corporation duly organized, validly existing,
and in good standing under the jurisdiction of its incorporation as listed on
Section(a) of the Xxxxx Disclosure Schedule. Each of Xxxxx and its Subsidiaries
is duly authorized to conduct business and is in good standing under the laws of
each jurisdiction listed in Section(a) of the Xxxxx Disclosure Schedule. Each of
Xxxxx and its Subsidiaries has requisite corporate power and authority to carry
on the businesses in which it is engaged and to own and use the properties owned
and used by it. Xxxxx has delivered to the Turecamo Stockholders correct and
complete copies of the certificates of incorporation and bylaws of Xxxxx (as
amended to date). The minute books (containing the records of meetings of the
stockholders, the board of directors, and any committees of the board of
directors), the stock certificate books, and the stock record books of Xxxxx are
correct and complete. Xxxxx is not in default under or in violation of any
provision of its certificate of incorporation or bylaws. Xxxxx is a "citizen"
within the meaning of Section 2(c) of the Shipping Act of 1916, as amended.
(b) CAPITALIZATION. The authorized capital stock of Xxxxx
consisted of 100,000 shares of Xxxxx Common Stock. There were issued and
outstanding 44,600 shares of Xxxxx Common Stock and no other voting securities
of Xxxxx. Each outstanding share of capital stock of Xxxxx has been duly
authorized, is validly issued, fully paid, and nonassessable, and is held of
record by the respective Xxxxx Stockholders as set forth in Section(b) of the
Xxxxx Disclosure Schedule. All of the outstanding shares of capital stock of the
Xxxxx Subsidiaries have been duly authorized and validly issued and are fully
paid and nonassessable, and are held of record and beneficially by Xxxxx, free
and clear of all liens and other adverse claims. Except as set forth in
Section(b) of the Xxxxx Disclosure Schedule, there are no outstanding or
authorized options, warrants, preemptive rights, purchase rights, subscription
rights, conversion rights, exchange rights, or other contracts or commitments
that could require Xxxxx to issue, sell, or otherwise cause to become
outstanding any of its capital stock. There are no outstanding or authorized
stock appreciation, phantom stock, profit participation, or similar rights with
respect to Xxxxx. Except as set forth in Section(b) of the Xxxxx Disclosure
Schedule, there are no voting trusts, proxies, or other agreements or
understandings with respect to the voting of the capital stock of Xxxxx.
(c) NONCONTRAVENTION. Except as set forth in Section(c) of the
Xxxxx Disclosure Schedule, neither the execution and the delivery of this
Agreement or the Ancillary Agreements, nor the consummation of the transactions
contemplated hereby or thereby, will (i) violate any law or any order, decree,
ruling, charge, or other restriction of any Governmental Authority to which
Xxxxx or any of its Subsidiaries is subject or any provision of the certificate
of incorporation or bylaws of Xxxxx or any of its Subsidiaries or (ii) conflict
with, result in a breach of, constitute a default under (or an event which, with
notice or lapse of time, or both, would constitute a breach or default), result
in the acceleration of, create in any party the right to accelerate, terminate,
modify, or cancel, or require any notice under any agreement, Contract, Permit
or other arrangement (written or oral) to which Xxxxx or any of its Subsidiaries
is a party or by which any of them is bound or to which any of their respective
assets is subject (or result in the imposition of any Security Interest upon any
of their respective assets). Except as set forth in Section(c) of the Xxxxx
Disclosure Schedule, none of Xxxxx or any of its Subsidiaries needs to give any
notice to,
Annex V-Reps. & Warranties
of Xxxxx
make any filing with, or obtain any authorization, consent, or approval of any
Governmental Authority in order for the Parties to consummate the transactions
contemplated by this Agreement and the Ancillary Agreements or continue the
effectiveness of Permits relating to the Xxxxx Business following the Closing.
(d) SUBSIDIARIES. Sections (a) and/or (d) of the Xxxxx
Disclosure Schedule lists each Subsidiary of Xxxxx. Except as set forth on
Section(a) and/or Section(d) of the Xxxxx Disclosure Schedule, neither Xxxxx nor
any of its Subsidiaries directly or indirectly, owns or controls or has any
capital or other equity interest or participation (or any interest convertible
into or exchangeable or exercisable for, any capital or other equity interest or
participation in) nor are any of Xxxxx or any of its Subsidiaries, directly or
indirectly, subject to any obligation or requirement to provide funds to or
invest in, any person.
(e) FINANCIAL STATEMENTS AND SEC REPORTS. Xxxxx has timely
filed all required forms, reports, statements and documents with the SEC since
October 19, 1994, all of which have complied in all material respects with all
applicable requirements of the Securities Act or the Exchange Act. Xxxxx
heretofore has delivered to the Turecamo Stockholders true and complete copies
of (i) its Annual Reports on Form 10-K for the fiscal years ended December 31,
1996 and 1997 (the "Most Recent Form 10-K"), (ii) its Quarterly Reports on Form
10-Q for the fiscal quarters ended March 31, 1998 and June 30, 1998 (the "Most
Recent Forms 10- Q", and the Most Recent Forms 10-Q and the Most Recent Form
10-K, the "Most Recent SEC Reports"), and (iii) all other reports, statements
and registration statements filed by it with the SEC at any time or required to
be filed by it with the SEC since October 19, 1994 (the documents referred to in
clauses (i), (ii) and (iii) being hereinafter referred to as "Xxxxx SEC
Reports"). As of their respective dates, the Xxxxx SEC Reports did not contain
any untrue statement of a material fact or omit to state a material fact
necessary in order to make the statements made therein, in light of the
circumstances under which they were made, not misleading. The financial
statements (including any related notes) of Xxxxx and its Subsidiaries included
in the Xxxxx SEC Reports were prepared in conformity with GAAP applied on a
consistent basis, and present fairly the consolidated financial position,
results of operations, cash flows and changes in stockholders equity of Xxxxx
and its consolidated Subsidiaries as of the dates and for the periods indicated,
subject, in the case of unaudited interim consolidated financial statements, to
condensation, the absence of certain notes thereto and normal year-end audit
adjustments. Since December 31, 1997, there has been no change in any of the
significant accounting (including tax accounting) policies, practices or
procedures of Xxxxx or any of its consolidated Subsidiaries.
(f) UNDISCLOSED LIABILITIES. None of Xxxxx or its Subsidiaries
has any material Liability, except for (i) Liabilities fully and adequately
reflected or reserved against in the financial statements included in the Most
Recent SEC Reports; (ii) Liabilities which have arisen after December 31, 1997
in the Ordinary Course of Business (none of which results from, arises out of,
relates to, is in the nature of, or was caused by any breach of contract or, to
the Knowledge of Xxxxx, by any breach of warranty, tort, infringement, or
violation of law); and (iii) Liabilities specifically disclosed in Section(f) of
the Xxxxx Disclosure Schedule.
(g) EVENTS SUBSEQUENT TO MOST RECENT FISCAL YEAR END. Since
December 31, 1997, there has not been any adverse change in the business,
financial condition, operations, results of operations, or future prospects of
Xxxxx or any of its Subsidiaries. Without limiting the generality of the
foregoing,
Annex V-Reps. & Warranties
of Xxxxx
except as set forth in Section(g) of the Xxxxx Disclosure Schedule, since that
date:
(i) none of Xxxxx or any of its Subsidiaries has sold, leased,
transferred, or assigned any of its assets, tangible or intangible,
other than for a fair consideration in the Ordinary Course of Business;
(ii) none of Xxxxx or any of its Subsidiaries has entered into
any agreement, contract, lease, pricing arrangement or license (or
series of related agreements, contracts, leases, arrangements and
licenses) either involving more than $500,000 or outside the Ordinary
Course of Business;
(iii) no party (including Xxxxx) has accelerated, terminated,
modified, or cancelled any agreement, contract, lease, or license (or
series of related agreements, contracts, leases, and licenses)
involving more than $500,000 to which any of Xxxxx or any of its
Subsidiaries is a party or by which any of them or any of their
respective assets is bound;
(iv) none of Xxxxx or any of its Subsidiaries has granted (or,
to the Knowledge of Xxxxx or any of its Subsidiaries, permitted) any
Security Interest upon any of its assets, tangible or intangible;
(v) none of Xxxxx or its Subsidiaries has made any capital
expenditure (or series of related capital expenditures) either
involving more than $500,000 or outside the Ordinary Course of
Business;
(vi) none of Xxxxx or its Subsidiaries has made any capital
investment in, any loan to, or any acquisition of the securities or
assets of, any other Person (or series of related capital investments,
loans, and acquisitions) either involving more than $500,000 or outside
the Ordinary Course of Business;
(vii) none of Xxxxx or its Subsidiaries has issued any note,
bond, or other debt security or created, incurred, assumed, or
guaranteed any indebtedness for borrowed money or capitalized lease
obligation either involving more than $500,000 in the aggregate or
outside the Ordinary Course of Business;
(viii) none of Xxxxx or its Subsidiaries has delayed or
postponed the payment of accounts payable and other Liabilities outside
the Ordinary Course of Business;
(ix) none of Xxxxx or its Subsidiaries has cancelled,
compromised, waived, or released any right or claim (or series of
related rights and claims) either involving more than $500,000 or
outside the Ordinary Course of Business;
(x) there has been no change made or authorized in the
certificate of incorporation or bylaws of any of Xxxxx or any of its
Subsidiaries;
(xi) none of Xxxxx or any of its Subsidiaries has issued,
sold, or otherwise disposed of any of its capital stock, or granted any
options, warrants, preemptive or other rights to
Annex V-Reps. & Warranties
of Xxxxx
purchase or obtain (including upon conversion, exchange, or
exercise) any of its capital stock;
(xii) none of Xxxxx or its Subsidiaries has declared, set
aside, or paid any dividend or made any distribution with respect to
its capital stock (whether in cash or in kind) or redeemed, purchased,
or otherwise acquired any of its capital stock;
(xiii) none of Xxxxx or its Subsidiaries has experienced any
damage, destruction, or loss (whether or not covered by insurance)
individually, or in the aggregate, more than $500,000 to its property;
(xiv) except as set forth in Section(g) of the Xxxxx
Disclosure Schedule, none of Xxxxx or any of its Subsidiaries has made
any loan to, or entered into any other transaction with, any of its
directors, officers, employees or stockholders outside the Ordinary
Course of Business;
(xv) none of Xxxxx or any of its Subsidiaries has entered into
any employment contract or collective bargaining agreement, written or
oral, or modified the terms of any existing such contract or agreement;
(xvi) none of Xxxxx or any of its Subsidiaries has granted any
increase in the base compensation of any of its directors, officers,
and employees outside the Ordinary Course of Business or made any other
change in employment terms or any advances or payments for or to any of
its directors, officers, or employees outside the Ordinary Course of
Business;
(xvii) none of Xxxxx or any of its Subsidiaries has adopted,
amended, modified, or terminated any bonus, profit-sharing, incentive,
severance, or other plan, contract, or commitment for the benefit of
any of its directors, officers, and employees (or taken any such action
with respect to any other Employee Benefit Plan);
(xviii) none of Xxxxx or any of its Subsidiaries has made or
pledged to make any charitable or other capital contribution outside
the Ordinary Course of Business;
(xix) no material customer, supplier, representative, lessee,
or lessor has terminated or given notice of its intent to terminate its
relationship with Xxxxx or any of its Subsidiaries; and
(xx) none of Xxxxx and each of its Subsidiaries has committed
to any of the foregoing.
(h) LEGAL COMPLIANCE.
(i) Xxxxx and each of its Subsidiaries has complied in all
material respects with all applicable Laws and no action, suit,
proceeding, hearing, investigation, charge, complaint, claim, demand,
or notice has been filed or commenced against any of them alleging any
failure so to comply. Section (h) of the Xxxxx Disclosure Schedule
lists all non-compliances with laws for which Xxxxx has been cited by a
Governmental Authority during the past 3 years (other than USCG
citations involving fines not exceeding $5,000, individually).
Annex V-Reps. & Warranties
of Xxxxx
(ii) Xxxxx and each of its Subsidiaries possess, and are in
material compliance with, the terms and conditions of, all Permits from
any Governmental Authority that are necessary for the ownership of
their respective assets and the conduct of the Xxxxx Business as
presently conducted in the Ordinary Course of Business. With respect to
each such Permit which is material: (A) the Permit is in full force and
effect; (B) none of Xxxxx or any of its Subsidiaries is in breach or
default, and, to the Knowledge of Xxxxx, no event has occurred which,
with notice or lapse of time, or both, would constitute a breach or
default, or permit termination or modification of the Permit; and (C)
the Permit will continue in full force and effect on identical terms
for the benefit of Xxxxx Enterprises and/or its Subsidiaries following
the consummation of the transactions contemplated hereby and by the
Ancillary Agreements.
(iii) To the Knowledge of Xxxxx, none of Xxxxx, any of its
Subsidiaries, the Xxxxx Stockholders, or any officer, director,
employee, consultant or agent of Xxxxx has made, directly or
indirectly, any payment or promise to pay, or gift or promise to give
or authorized such a promise or gift, of any money or anything of
value, directly or indirectly, to any governmental official, customer
or supplier for the purpose of influencing any official act or decision
of such official, customer or supplier or inducing him, her or it to
use his, her or its influence to affect any act or decision of a
Governmental Authority or customer, under circumstances which could
subject Xxxxx, any of its Subsidiaries or any Xxxxx Stockholder or any
officers, directors, employees or consultants of Xxxxx to
administrative or criminal penalties or sanctions or termination of
such customer relationship.
(i) TAX MATTERS.
(i) Except as set forth on Section(i) to the Xxxxx Disclosure
Schedule, each of Xxxxx and its Subsidiaries has filed all Tax Returns
that it was required to file. All such Tax Returns were correct and
complete in all material respects. All Taxes owed by any of Xxxxx and
its Subsidiaries reflected on such Tax Returns have been paid. Except
as set forth in Section(i) of the Xxxxx Disclosure Schedule, none of
Xxxxx or its Subsidiaries is currently the beneficiary of any extension
of time within which to file any Tax Return. Except as set forth on
Section(i) to the Xxxxx Disclosure Schedule, no claim has ever been
made by an authority in a jurisdiction where any of Xxxxx and its
Subsidiaries does not file Tax Returns that it is or may be subject to
taxation by that jurisdiction. There are no Security Interests on any
of the assets of any of Xxxxx and its Subsidiaries that arose in
connection with any failure (or alleged failure) to pay any Tax.
(ii) Each of Xxxxx and its Subsidiaries has withheld and paid
all Taxes required to have been withheld and paid in connection with
amounts paid or owing to any employee, independent contractor,
creditor, stockholder, or other third party, except to the extent that
a failure to withhold or make such payment could not be reasonably
expected to have a Xxxxx Material Adverse Effect.
(iii) Except as set forth on Section(i) of the Xxxxx
Disclosure Schedule, none of Xxxxx or its Subsidiaries expects any
authority to assess any additional Taxes for any period for which Tax
Returns have been filed by any of Xxxxx and its Subsidiaries. There is
no dispute or claim
Annex V-Reps. & Warranties
of Xxxxx
concerning any Liability with respect to any Taxes of any of Xxxxx and
its Subsidiaries either (A) claimed or raised by any Governmental
Authority in writing or (B) as to which Xxxxx has Knowledge. Section
(i) of the Xxxxx Disclosure Schedule lists all federal, state, local,
and foreign income Tax Returns filed with respect to any of Xxxxx and
its Subsidiaries for taxable periods ended on or after December 31,
1996, indicates those Tax Returns that have been audited, and indicates
those Tax Returns that currently are the subject of audit. Xxxxx has
delivered to the Turecamo Stockholders correct and complete copies of
all federal and state income and other material Tax Returns,
examination reports, and statements of deficiencies assessed against or
agreed to by any of Xxxxx and its Subsidiaries since December 31, 1996.
(iv) Except as set forth on Section(i) of the Xxxxx Disclosure
Schedule, none of Xxxxx or its Subsidiaries has waived any statute of
limitations in respect of Taxes or agreed to any extension of time with
respect to a Tax assessment or deficiency.
(v) None of Xxxxx or its Subsidiaries has filed a consent
under Code Section341(f) concerning collapsible corporations. None of
Xxxxx or its Subsidiaries has made any payments, is obligated to make
any payments, or is a party to any agreement that under certain
circumstances could obligate it to make any payments that will not be
deductible under Code Section280G. Except as set forth on Section(i) of
the Xxxxx Disclosure Schedule, none of Xxxxx or its Subsidiaries has
been a United States real property holding corporation within the
meaning of Code Section897(c)(2) during the applicable period specified
in Code Section897(c)(1)(A)(ii). None of Xxxxx or its Subsidiaries is a
party to any Tax allocation or sharing agreement. None of Xxxxx and its
Subsidiaries (A) is and has been a member of an Affiliated Group filing
a consolidated federal income Tax Return, other than the Affiliated
Group of which Xxxxx is the common parent and the Affiliated Group of
which Xxxxx Towing Corporation was the common parent prior to July
1994, and (B) has any Liability for the Taxes of any Person (other than
any of Xxxxx and its Subsidiaries) under Reg. Section1.1502-6 (or any
similar provision of state, local, or foreign law), as a transferee or
successor, by contract, or otherwise.
(vi) Section (i) of the Xxxxx Disclosure Schedule sets forth,
as of December 31, 1997, the net book value and tax basis, if any, of
Xxxxx and its Subsidiaries in their floating equipment.
(vii) The unpaid Taxes of Xxxxx and its Subsidiaries (A) did
not, as of March 31, 1998 exceed the reserve for Tax Liability (rather
than any reserve for deferred Taxes established to reflect timing
differences between book and Tax income) set forth on the Most Recent
Form 10-Q and (B) do not exceed that reserve as adjusted for the
passage of time through the Closing Date in accordance with the past
custom and practice of Xxxxx and its Subsidiaries in filing their Tax
Returns.
(j) REAL PROPERTY.
(i) With respect to all material real property that any of
Xxxxx or its Subsidiaries owns, the owner has good and marketable title
to the parcel of real property, free and clear of any Security
Interest, easement, covenant, or other restriction, except for
installments of special assessments not yet delinquent and recorded
easements, covenants, and other restrictions which
Annex V-Reps. & Warranties
of Xxxxx
do not materially impair the current use, occupancy, or value, or the
marketability of title, of the property subject thereto.
(ii) Section (j)(ii) of the Xxxxx Disclosure Schedule lists
and describes briefly all real property leased or subleased to, or
otherwise occupied by, any of Xxxxx and its Subsidiaries (all such real
property, together with all buildings and other improvements thereon,
the "Xxxxx Leased Real Property"). As to all existing leases, subleases
or other contracts with respect to the Xxxxx Leased Real Property (the
"Xxxxx Leases"):
(A) each of the Xxxxx Leases is, and, at Closing,
each of the Xxxxx Leases will be, legal, valid, binding,
enforceable, and in full force and effect following the
consummation of the transactions contemplated hereby;
(B) none of Xxxxx or its Subsidiaries is, and to the
Knowledge of Xxxxx, no other party to any of the Xxxxx Leases
is, in breach or default, and no event has occurred which,
with notice or lapse of time, would constitute a breach or
default or permit termination, modification, or acceleration
thereunder;
(C) no party to any of the Xxxxx Leases has
repudiated any provision thereof;
(D) there are no disputes, oral agreements, or
forbearance programs in effect as to any of the Xxxxx Leases,
other than as described on Section(j)(ii) of the Xxxxx
Disclosure Schedule;
(E) with respect to any of the Xxxxx Leases which is
a sublease, the representations and warranties set forth in
subsections (A) through (E) above are true and correct with
respect to the underlying lease(s);
(F) none of Xxxxx or its Subsidiaries has assigned,
transferred, conveyed, mortgaged, deeded in trust, or
encumbered any interest in any of the Xxxxx Leases;
(G) to the knowledge of Xxxxx, the landlords of the
Xxxxx Leased Real Properties have provided, and as a tenant of
Xxxxx Leased Real Property, Xxxxx has provided all approvals
of Governmental Authorities (including licenses and permits)
required in connection with the operation thereof and have
been operated and maintained in accordance with applicable
laws, rules, and regulations; and
(H) all Xxxxx Leased Real Property is supplied with
utilities and other services necessary for the operation of
said Xxxxx Leased Real Property.
(k) INTELLECTUAL PROPERTY.
(i) Xxxxx and its Subsidiaries own or have the right to use
pursuant to license, sublicense, agreement, or permission all material
Intellectual Property necessary for the operation of the Xxxxx Business
as presently conducted. Xxxxx and its Subsidiaries possess all
Annex V-Reps. & Warranties
of Xxxxx
right, title and interest in and to the each material item of owned
Intellectual Property, free and clear of any Security Interest or other
restriction or claim. With respect to each material item of
Intellectual Property that any third party owns and that any of Xxxxx
and its Subsidiaries uses, the license, sublicense, agreement or
permission pursuant to which any of Xxxxx and its Subsidiaries has the
right to use such item is legal, valid, binding, enforceable and in
full force and effect. Except as disclosed on Section(k) of the Xxxxx
Disclosure Schedule, each material item of Intellectual Property owned
or used by Xxxxx and its Subsidiaries immediately prior to the Closing
hereunder will be owned or available for use by Xxxxx Enterprises and
its Subsidiaries on identical terms and conditions immediately
subsequent to the Closing hereunder.
(ii) Section (k) of the Xxxxx Disclosure Schedule identifies
each material item of Intellectual Property (excluding Section(e) of
the definition of Intellectual Property) owned or used by Xxxxx and its
Subsidiaries in the Xxxxx Business. Section (k)(ii) of the Xxxxx
Disclosure Schedule identifies each license, agreement, or other
permission which any of Xxxxx and its Subsidiaries has granted to any
third party with respect to any of its material Intellectual Property
(together with any exceptions). Xxxxx has delivered to the Turecamo
Stockholders correct and complete copies of all such licenses,
agreements, and permissions (as amended to date).
(iii) To the Knowledge of Xxxxx, none of Xxxxx or its
Subsidiaries has interfered with, infringed upon, misappropriated, or
otherwise come into conflict with any Intellectual Property rights of
third parties, nor has any Xxxxx or its Subsidiaries ever received any
charge, complaint, claim, demand, or notice alleging any such
interference, infringement, misappropriation, or violation (including
any claim that any of Xxxxx or its Subsidiaries must license or refrain
from using any Intellectual Property rights of any third party), except
where such interference, infringement, misappropriation or conflict
would not reasonably expect to have a Xxxxx Material Adverse Effect. To
the Knowledge of Xxxxx, no third party has interfered with, infringed
upon, misappropriated, or otherwise come into conflict with any
Intellectual Property rights of any of Xxxxx or its Subsidiaries,
except where such interference, infringement, misappropriation or
conflict would not reasonably expect to have a Xxxxx Material Adverse
Effect.
(l) TANGIBLE PROPERTY. Section (l) of the Xxxxx Disclosure Schedule
sets forth all interests owned or claimed by each of Xxxxx and its Subsidiaries
(including, without limitation, options) in or to Xxxxx Tangible Property (as
defined below) which are material to the Xxxxx Business and are not reflected in
the Xxxxx SEC Reports and have not been sold or disposed of in the Ordinary
Course of Business since the Most Recent Form 10-Q. The Xxxxx Tangible Property
of Xxxxx and its Subsidiaries that is material to the Xxxxx Business is in good
operating condition and repair. For purposes hereof, "Xxxxx Tangible Property"
means equipment (other than Xxxxx Vessels), furniture, leasehold improvements,
fixtures, vehicles, structures, any related capitalized items and other tangible
property and which is treated by Xxxxx as depreciable or amortizable property.
(m) VESSELS. Each of Xxxxx and its Subsidiaries owns and is lawfully
possessed of (i) good and marketable title to the whole of each of the vessels
identified in the Xxxxx SEC Reports as being owned by such entity (except such
vessels which are indicated as being owned jointly with others on the Xxxxx
Disclosure Schedule), free and clear of any Security Interest or any commitment
to make such
Annex V-Reps. & Warranties
of Xxxxx
vessel available for charter or sale or use by any governmental authority,
except for the mortgages identified in the Xxxxx SEC Reports and other liens
expressly permitted by such mortgages, and (ii) good and valid bareboat charters
of the vessels identified in the Xxxxx SEC Reports as being chartered by Xxxxx
or its Subsidiaries. True, complete and correct copies of such mortgages and
charters have been delivered or made available to the Turecamo Stockholders.
Such vessels are referred to in this Agreement as the "Xxxxx Vessels". Each of
the Xxxxx Vessels is duly documented in the name of Xxxxx or its Subsidiaries
under the laws and flag of the United States of America, is eligible for
coastwise documentation, and all necessary coastwise certificates, licenses and
permits relating thereto are valid and current. Each of the Xxxxx Vessels is
well and sufficiently tackled, apparelled, furnished and equipped and, except as
set forth on Section(m)(iii) of the Xxxxx Disclosure Schedule, is free of
outstanding requirements of the USCG, and is in good operating condition,
suitable to its intended trade and has no deficiencies to correct a condition
customarily considered to be necessary to the safety or operation of such Xxxxx
Vessel or her crew or which must be corrected before such Xxxxx Vessel is
acceptable for customary marine insurance. Each of the Xxxxx Vessels now has
valid and current USCG Inspection Certificates, where applicable, and all other
certificates, licenses and permits (including, Certificates of Financial
Responsibility (Water Pollution)), which are required by applicable law or
regulation. Set forth on Section(m)(iv) of the Xxxxx Disclosure Schedule is a
list of the current ABS Classification, if any, of each Xxxxx Vessel.
(n) TITLE TO ASSETS. Xxxxx and its Subsidiaries have good and
marketable title to, or a valid leasehold interest in, the properties and assets
used by them or shown in the financials contained in the Most Recent Form 10-Q
or acquired after the date thereof, free and clear of all Security Interests,
except for those Security Interests set forth in Section(n) of the Xxxxx
Disclosure Schedule, identified in the Xxxxx SEC Reports or permitted by the
mortgages identified in the Most Recent SEC Reports.
(o) CONTRACTS. All purchase orders, contracts, commitments,
obligations, plans, agreements, instruments, arrangements, understandings,
undertakings, including all amendments and supplements thereto, or series of any
of the foregoing, but excluding, in each case, ship-docking contracts
cancellable on 30 days or less notice, to which Xxxxx or any of its Subsidiaries
is a party or by which any of their respective assets or the Xxxxx Business are
bound which are material to Xxxxx or its Subsidiaries (the "Xxxxx Contracts")
are listed as exhibits in the Xxxxx SEC Reports or disclosed on Section(o) of
the Xxxxx Disclosure Schedule. Xxxxx and its Subsidiaries have made available to
the Turecamo Stockholders a correct and complete copy of each Xxxxx Contract.
Other than purchase orders cancelable upon less than 30 days' notice, with
respect to each such Xxxxx Contract: (A) the Xxxxx Contract is legal, valid,
binding, enforceable, and in full force and effect; (B) none of Xxxxx or its
Subsidiaries is, and, to the Knowledge of Xxxxx and its Subsidiaries, no other
party is, in breach or default, and no event has occurred which with notice or
lapse of time would constitute a breach or default, or permit termination,
modification, or acceleration, under the Xxxxx Contract; and (C) Xxxxx and its
Subsidiaries have not and, to the Knowledge of Xxxxx, no other party has,
repudiated any provision of any Xxxxx Contract. Except as set forth in
Section(o) of the Xxxxx Disclosure Schedule, no purchase contracts of Xxxxx and
any of its Subsidiaries are in excess of the normal and ordinary requirements of
the Xxxxx Business. Except as disclosed in the Xxxxx SEC Reports or as listed on
Section(o) of the Xxxxx Disclosure Schedule, neither Xxxxx nor any of its
Subsidiaries is a guarantor or otherwise liable for any Liability or obligation
(including Indebtedness) of any other Person other than a Subsidiary.
(p) NOTES AND ACCOUNTS RECEIVABLE. All notes and accounts receivable of
Xxxxx and its
Annex V-Reps. & Warranties
of Xxxxx
Subsidiaries are reflected properly on their books and records, are valid
receivables subject to no set off or counterclaim, are subject to adequate
reserves established in a manner consistent with past practice, and were
incurred in the Ordinary Course of Business of Xxxxx and its Subsidiaries for
bona fide services rendered.
(q) INSURANCE. Section (q) of the Xxxxx Disclosure Schedule sets forth
the following information with respect to each insurance policy (including
protection and indemnity policies and policies providing property, casualty,
liability, and workers' compensation coverage and bond and surety arrangements)
to which any of Xxxxx and its Subsidiaries has been a party, a named insured, or
otherwise the beneficiary of coverage at any time within the past 3 years:
(i) the name, address, and telephone number of the agent;
(ii) the name of the insurer, the name of the policyholder,
and the name of each covered insured;
(iii) the policy number and the period of coverage;
(iv) the scope (including an indication of whether the
coverage was on a claims made, occurrence, or other basis) and amount
(including a description of how deductibles and ceilings are calculated
and operate) of coverage;
(v) a description of annual premiums payable, deductibles and
limits with respect thereto and any retroactive premium adjustments or
other loss-sharing arrangements; and
(vi) the claims history of Xxxxx and its Subsidiaries with
respect to such policy.
With respect to each such insurance policy: (A) the policy is legal, valid,
binding, enforceable, and in full force and effect; (B) the policy will continue
to be legal, valid, binding, enforceable, and in full force and effect on
identical terms following the consummation of the transactions contemplated
hereby; (C) neither Xxxxx nor any of its Subsidiaries nor any other party to the
policy is in breach or default (including with respect to the payment of
premiums or the giving of notices), and no event has occurred which, with notice
or the lapse of time, would constitute such a breach or default, or permit
termination, modification, or acceleration, under the policy; and (D) no party
to the policy has repudiated any provision thereof. Without limiting the
foregoing, Xxxxx and its Subsidiaries have kept all Xxxxx Vessels owned or
operated by them insured in accordance with customary practices in the industry.
The Xxxxx SEC Reports describe any self-insurance arrangements affecting Xxxxx
and its Subsidiaries.
(r) LITIGATION. The Most Recent SEC Reports and Section(r) of the Xxxxx
Disclosure Schedule set forth each instance in which any of Xxxxx and its
Subsidiaries (i) is subject to any outstanding injunction, judgment, order,
decree, ruling, or charge or (ii) is a party or, to the Knowledge of Xxxxx is
threatened to be made a party to any action, suit, proceeding, hearing, or
investigation of, in, or before any Governmental Authority or before any
arbitrator. None of the actions, suits, proceedings, hearings, and
investigations set forth in the Most Recent SEC Reports or Section(r) of the
Xxxxx Disclosure Schedule would reasonably be expected to have a Xxxxx Material
Adverse Effect. Xxxxx has no Knowledge that any such action, suit, proceeding,
hearing, or investigation may be brought or threatened against any of
Annex V-Reps. & Warranties
of Xxxxx
Xxxxx and its Subsidiaries.
(s) EMPLOYEES. Except as set forth on Section(s) of the Xxxxx
Disclosure Schedule, to the Knowledge of Xxxxx, no executive, key employee, or
group of employees has any plans to terminate employment with Xxxxx or any of
its Subsidiaries. Except as set forth in the Most Recent SEC Reports or on
Section(s) of the Xxxxx Disclosure Schedule, neither Xxxxx nor any of its
Subsidiaries is a party to or bound by any collective bargaining agreement, nor
is any of them experiencing any strikes, grievances, claims of unfair labor
practices, or other collective bargaining disputes. Except as disclosed in the
Most Recent SEC Reports, neither Xxxxx nor any of its Subsidiaries nor any
stockholder of Xxxxx has committed any unfair labor practice. Neither Xxxxx nor
any of its Subsidiaries has any Knowledge of any organizational effort presently
being made or threatened by or on behalf of any labor union with respect to
employees of Xxxxx. The qualifications of each employee of Xxxxx and its
Subsidiaries for employment under applicable immigration laws have been
reviewed, a properly completed Form I-9 is on file with respect to each such
employee, as applicable, and each of Xxxxx and its Subsidiaries has complied
with the Immigration and Nationality Act, as amended from time to time, and the
rules and regulations promulgated thereunder, and neither Xxxxx nor any of its
Subsidiaries has any Knowledge of any basis for any claim that Xxxxx and its
Subsidiaries are not in compliance with the terms thereof.
(t) EMPLOYEE BENEFITS. Section (t) of the Xxxxx Disclosure Schedule
lists each Employee Benefit Plan maintained by Xxxxx and its Subsidiaries or to
which Xxxxx and its Subsidiaries are obligated (or at any time within the last
six years, have been obligated) to contribute or with respect to which Xxxxx and
its Subsidiaries have any Liability (the "Xxxxx Employee Benefit Plans"). None
of the Xxxxx Employee Benefit Plans that are not qualified plans under Section
401(a) of the Code and exempt from income taxation under Section 501(a) of the
Code provides or promises benefits to ex-employees (including retirees) of any
of Xxxxx and its Subsidiaries and their dependents and beneficiaries, except as
specifically required under Section 4980B of the Code with respect to
continuation of coverage. All Xxxxx Employee Benefit Plans have been operated in
accordance with their terms. All Xxxxx Employee Benefit Plans that are not
Multiemployer Plans and that are subject to the terms of ERISA, the Code, or
other statutes, laws, ordinances, codes, rules and regulations comply in all
material respects with ERISA, the Code, and such other statutes, laws,
ordinances, codes, rules and regulations, as applicable. In the case of each
Xxxxx Employee Benefit Plan which is intended to be a qualified plan under
Section 401(a) of the Code and exempt from income taxation under Section 501(a)
of the Code, a determination has been received from the appropriate District
Director of the Internal Revenue Service that such plan is qualified under
Section 401(a) of the Code and the trust created thereunder is exempt from
federal taxation under Section 501(a) of the Code. No such Xxxxx Employee
Benefit Plan has incurred any accumulated funding deficiency (within the meaning
of ERISA or the Code) and neither Xxxxx nor any of its Subsidiaries has any
Liability or potential Liability on account of an accumulated funding deficiency
with respect to any Xxxxx Employee Benefit Plan. There has been no transaction
involving any Xxxxx Employee Benefit Plan which is a "prohibited transaction"
under ERISA or the Code in connection with which any of Xxxxx and its
Subsidiaries would be subject to Liability under ERISA or any Tax Liability
imposed by the Code, or which would subject any Xxxxx Employee Benefit Plan or
any of Xxxxx and its Subsidiaries to a penalty under ERISA, the Code or any
other statute, law, ordinance, code, rule or regulation. There has been no
complete or partial termination of any Xxxxx Employee Benefit Plan. None of the
Xxxxx Employee Benefit Plans provides for additional or accelerated payments or
other consideration to be made on account of the transactions contemplated
hereby.
Annex V-Reps. & Warranties
of Xxxxx
The market value of assets under each Xxxxx Employee Benefit
Plan equals or exceeds the present value of all vested and nonvested liabilities
thereunder determined in accordance with the provisions of ERISA and the Code
applicable to an Employee Benefit Plan terminating on the date such
determination is made.
No suit, action, claim, proceeding, investigation or
arbitration has been made or instituted or, to the Knowledge of Xxxxx,
threatened, with respect to any Xxxxx Employee Benefit Plan or any assets
thereof; except for routine claims for benefits made in accordance with the
terms thereof.
All contributions or payments required to be made to such
Xxxxx Employee Benefit Plans by their terms, the terms of any relevant
collective bargaining agreement(s) or any other applicable law, before or after
the Closing Date, with respect to all periods or events occurring prior to the
Closing Date (including all insurance premiums) have been properly paid or
accrued (to the extent required under GAAP, ERISA or the Code) on the books of
account of Xxxxx and its Subsidiaries prior to the Closing Date (including,
without limitation, a pro rata share with respect to any period including the
Closing Date based on the ratio of the number of days in such period to the
total number of days in the fiscal year of the applicable Xxxxx Employee Benefit
Plan). The Liabilities for all benefits provided pursuant to the Xxxxx Employee
Benefit Plans have been truly and accurately provided for on the books of
account of Xxxxx and its Subsidiaries.
True, complete and accurate copies of the documents setting
forth the terms of each Xxxxx Employee Benefit Plan, including, without
limitation, plans, agreements, amendments, trusts and all related contracts and
other agreements (including, without limitation, corporate resolutions and
minutes relating to any Xxxxx Employee Benefit Plan) and, where applicable,
copies of each Xxxxx Employee Benefit Plan's: (i) most recent summary plan
descriptions and modifications thereto; (ii) notices distributed to employees,
consultants, agents, dependents and other beneficiaries with regard to any Xxxxx
Employee Benefit Plan and any continuation of coverage required under law; (iii)
most recent favorable Internal Revenue Service determination letters; (iv) two
most recent annual reports (IRS Forms 5500), including, without limitation,
audited financial statements (if any) and all schedules thereto; and (v) two
most recent actuarial reports, have heretofore been delivered or made available
to Turecamo Stockholders. There are no oral modifications to any of such Xxxxx
Employee Benefit Plans.
For purposes of this Section (t), "Xxxxx" includes Xxxxx and
any trade or business (whether or not incorporated) that is a member of the same
"controlled group" of corporations as, or is treated as being under "common
control" with, within the meaning of Sections 414(b), (c), (m) and (o) of the
Code and the Treasury Regulations promulgated thereunder, Xxxxx.
(u) ENVIRONMENTAL, HEALTH, AND SAFETY MATTERS.
(i) Except as set forth in the Xxxxx SEC Reports or on
Section(u) of the Xxxxx Disclosure Schedule:
(A) each of Xxxxx and its Subsidiaries is in material
compliance with applicable Environmental Laws, and within the
period of all applicable statutes of limitation has been in
such compliance; and there are no circumstances that are
Annex V-Reps. & Warranties
of Xxxxx
reasonably likely to prevent or interfere with such compliance
in the future;
(B) each of Xxxxx and its Subsidiaries holds
Environmental Permits necessary to conduct its operations as
they are currently conducted; Section(u)(i) of the Xxxxx
Disclosure Schedule is a true and complete list of all such
Environmental Permits and, where applicable,
(C) their expiration dates; neither Xxxxx nor any of
its Subsidiaries has reason to believe that any such
Environmental Permits (1) will not be renewed, or (2) will be
renewed under terms that are reasonably likely to have a Xxxxx
Material Adverse Effect;
(D) there are no Materials of Environmental Concern
in violation of Environmental Laws or Environmental Permits
present at, and no Materials of Environmental Concern are or
have been in any way released or threatened to be released
from, any property currently or formerly owned, leased or
otherwise operated by the Xxxxx and its Subsidiaries in
violation of Environmental Laws or Environmental Permits, or
as a result of present or former operations of Xxxxx and its
Subsidiaries;
(E) neither Xxxxx nor any of its Subsidiaries is
currently in receipt of any Environmental Claim, and no
Environmental Claim against Xxxxx or any of its Subsidiaries
is currently being threatened;
(F) neither Xxxxx nor any of its Subsidiaries has
entered into, agreed to, nor is Xxxxx or any of its
Subsidiaries otherwise subject to any judgment, decree, order
or similar requirement under any Environmental Law, nor is
Xxxxx or any of its Subsidiaries negotiating any such
judgment, decree, order or requirement;
(G) neither Xxxxx nor any of its Subsidiaries has
contractually assumed or retained any liabilities or
obligations, contingent or otherwise, in connection with any
Environmental Law; and neither this Agreement nor the
consummation of the transactions contemplated hereby will
result in any obligations for site investigation or cleanup,
or notification to or consent of Governmental Authorities or
third parties, pursuant to any of the so-called
"transaction-triggered" or "responsible property transfer"
Environmental Laws; and
(ii) Set forth on Section(u)(ii) of the Xxxxx Disclosure
Schedule is a complete list of reports, studies, assessments, audits,
and other similar documents in the possession or control of Xxxxx and
its Subsidiaries that address any issues of actual or potential
noncompliance with, or actual or potential liability under, any
Environmental Laws that may affect Xxxxx and its Subsidiaries. True,
correct and complete copies of all such reports have been provided or
made available to the Turecamo Stockholders prior to the signing
hereof.
(iii) Except as set forth on Section(u)(iii) of the Xxxxx
Disclosure Schedule, no Environmental Law requires any Permit, consent,
or other authorization to be obtained from, or any application, filing,
or other notice to be given to, any person in connection with this
Annex V-Reps. & Warranties
of Xxxxx
Agreement or any action contemplated by this Agreement.
(iv) None of the matters set forth in the Most Recent SEC
Reports or on Section(u)(i) of the Xxxxx Disclosure Schedule, or any
aggregation thereof, could reasonably be expected to result in a Xxxxx
Material Adverse Effect.
(v) CERTAIN BUSINESS RELATIONSHIPS WITH XXXXX. Except as set forth in
Section(v) of the Xxxxx Disclosure Schedule, none of the Xxxxx Stockholders or
any of their Affiliates has been involved in any business arrangement or
relationship with Xxxxx or any of its Subsidiaries within the past 36 months,
and none of the Xxxxx Stockholders owns any asset, tangible or intangible, which
is used in the business of Xxxxx or any of its Subsidiaries.
(w) BROKERS' FEES. None of Xxxxx or its Subsidiaries or any of its
stockholders has any Liability or obligation to pay any fees or commissions to
any broker, finder, or agent with respect to the transactions contemplated by
this Agreement or by the Ancillary Agreements, except to Hardy Harris
Incorporated ("Hardy Harris"). Except for such obligations to Hardy Harris, none
of Xxxxx or its Subsidiaries, the Xxxxx Stockholders or any of their officers or
directors have incurred any liability for any brokerage, finder's, financial
advisory or other fee or commission or similar form of compensation in
connection with this Agreement or the Ancillary Agreements or the transactions
contemplated hereby or thereby.
(x) CUSTOMERS; SUPPLIERS. Section (x) of the Xxxxx Disclosure Schedule
lists, for each of the fiscal years ended December 31, 1996 and 1997, each
customer or group of affiliated customers which accounted for more than five
percent (5%) of the consolidated revenues of Xxxxx and its Subsidiaries during
such period and each supplier or group of affiliated suppliers which provided
more than five percent (5%) of the requirements of Xxxxx and its Subsidiaries
during such period. The relationships of Xxxxx and its Subsidiaries with their
respective customers and suppliers are good commercial working relationships
and, except as set forth on Section(x) of the Xxxxx Disclosure Schedule, during
the last twelve months, no material customer or supplier of Xxxxx and its
Subsidiaries listed on Section(x) of the Xxxxx Disclosure Schedule has cancelled
or otherwise terminated, or threatened to cancel or otherwise terminate, its
relationship with any of Xxxxx or its Subsidiaries or decreased, or threatened
to decrease or limit in any material respect, its usage of the services of Xxxxx
or any of its Subsidiaries or its provision of services to Xxxxx and its
Subsidiaries. None of Xxxxx or its Subsidiaries has any notice that any material
customer or supplier intends to cancel or otherwise modify its relationship with
Xxxxx and its Subsidiaries or to decrease or limit in any material respect its
usage of the services of Xxxxx and its Subsidiaries or its provision of services
to Xxxxx and its Subsidiaries, and the transactions contemplated hereby will
not, to the knowledge of Xxxxx, adversely affect the relationship of Xxxxx with
any of its respective customers or suppliers.
(y) DISCLOSURE. The representations and warranties contained in this
Annex V and the information in the Xxxxx SEC Reports, taken together, do not
contain any untrue statement of a material fact or omit to state any material
fact necessary in order to make the statements and information contained in this
Annex V and in the Xxxxx SEC Reports, taken together, not misleading.
