AMENDMENT XX. 0
XXXXXXXXX XX. 0, dated as of September 14, 1999 (this
"Amendment"), between HALTER MARINE GROUP, INC., a Delaware corporation ("Halter
Marine"), and XXXXXX XXXXXXX INTERNATIONAL INC., a Mississippi corporation
("Xxxxxx Xxxxxxx").
WHEREAS, Halter Marine and Xxxxxx Xxxxxxx are parties to an
Agreement and Plan of Merger, dated as of June 1, 1999 (the "Merger Agreement";
terms defined in the Merger Agreement and not otherwise defined herein are being
used herein as therein defined);
WHEREAS, the Boards of Directors of Halter Marine and Xxxxxx
Xxxxxxx have determined that it is appropriate to amend the Merger Agreement as
set forth in this Amendment; and
WHEREAS, pursuant to Section 8.03 of the Merger Agreement,
the Merger Agreement may be amended by the parties hereto.
NOW THEREFORE, in consideration of the premises and for other
valuable consideration, the receipt of which is hereby acknowledged, the parties
hereto hereby agree as follows:
ARTICLE I
AMENDMENTS TO THE MERGER AGREEMENT
SECTION 1.01. Amendment to Preamble. The Preamble to the
Merger Agreement is hereby amended by deleting the phrase "(this "Agreement")"
in its entirety and inserting in lieu thereof the phrase "(as amended by
Amendment No. 1, this "Agreement")".
SECTION 1.02. Amendment to Section 2.01(a). Section 2.01(a)
of the Merger Agreement is hereby amended by deleting the number "0.4614" in the
fifth line thereof and inserting in lieu thereof the number "0.57".
SECTION 1.03. Amendment to Section 6.06. Section 6.06 of the
Merger Agreement is hereby amended by adding the following new paragraph (d) at
the end of Section 6.06:
"(d) Each party shall cooperate with the other and
shall use all commercially reasonable efforts to promptly
arrange bank financing for the Surviving Corporation
necessary to satisfy the condition set forth in Section
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7.01(g) hereof."
SECTION 1.04. Amendment to Section 6.07. Section 6.07 of the
Merger Agreement is hereby amended by deleting the section reference to "9(d)"
of the Halter Marine 1996 Plan in the tenth line thereof and inserting in lieu
thereof "10(e)".
SECTION 1.05. Amendment to Section 7.01. Section 7.01 of the
Merger Agreement is hereby amended by adding the following new paragraph (g) at
the end of Section 7.01:
"(g) Financing. Bank financing of at least $175
million shall have been arranged for the Surviving
Corporation effective as of the Effective Time on terms
reasonably acceptable to Halter Marine and Xxxxxx Xxxxxxx and
that in the reasonable judgment of both Halter Marine and
Xxxxxx Xxxxxxx would meet the needs of the Surviving
Corporation."
ARTICLE II
REPRESENTATIONS AND WARRANTIES
SECTION 2.01. Representations of Halter Marine. Halter
Marine hereby represents and warrants to Xxxxxx Xxxxxxx as follows:
(a) Halter Marine has all necessary corporate power and
authority to execute and deliver this Amendment, to perform its
obligations under the Merger Agreement (as amended by this Amendment)
and to consummate the transactions contemplated by the Merger
Agreement (as amended by this Amendment).
(b) The execution and delivery of this Amendment by Halter
Marine have been duly and validly authorized by all necessary
corporate action and no other corporate proceedings on the part of
Halter Marine are necessary to authorize this Amendment.
(c) This Amendment has been duly and validly executed and
delivered by Halter Marine and, assuming the due authorization,
execution and delivery by Xxxxxx Xxxxxxx, the Merger Agreement (as
amended by this Amendment) constitutes the legal, valid and binding
obligation of Halter Marine, enforceable against Halter Marine in
accordance with its terms (except insofar as enforceability may be
limited by applicable bankruptcy, insolvency, reorganization,
moratorium or similar laws affecting creditors' rights generally, or
principles governing the availability of equitable remedies).
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SECTION 2.02. Representations and Warranties of Xxxxxx
Xxxxxxx. Xxxxxx Xxxxxxx hereby represents and warrants to Halter Marine that:
(a) Xxxxxx Xxxxxxx has all necessary corporate power and
authority to execute and deliver this Amendment, to perform its
obligations under the Merger Agreement (as amended by this Amendment)
and to consummate the transactions contemplated by the Merger
Agreement (as amended by this Amendment).
(b) The execution and delivery of this Amendment by Xxxxxx
Xxxxxxx have been duly and validly authorized by all necessary
corporate action and no other corporate proceedings on the part of
Xxxxxx Xxxxxxx are necessary to authorize this Amendment.
(c) This Amendment has been duly and validly executed and
delivered by Xxxxxx Xxxxxxx and, assuming the due authorization,
execution and delivery by Halter Marine, the Merger Agreement (as
amended by this Amendment) constitutes the legal, valid and binding
obligation of Xxxxxx Xxxxxxx, enforceable against Xxxxxx Xxxxxxx in
accordance with its terms (except in each such case insofar as
enforceability may be limited by applicable bankruptcy, insolvency,
reorganization, moratorium or similar laws affecting creditors' rights
generally, or principles governing the availability of equitable
remedies).
ARTICLE III
GENERAL PROVISIONS
SECTION 3.01. Effect on Merger Agreement. Except as amended
hereby, the provisions of the Merger Agreement are and shall remain in full
force and effect.
SECTION 3.02. Counterparts. This Amendment may be executed in
two counterparts, and by the different parties hereto in separate counterparts,
each of which when executed shall be deemed to be an original but all of which
taken together shall constitute one and the same agreement. Delivery of an
executed counterpart of a signature page to this Amendment by telecopier shall
be effective as delivery of a manually executed counterpart of this Amendment.
SECTION 3.03. Governing Law. This Amendment shall be
governed by and construed in accordance with the Laws of the State of Delaware
as applied to contracts executed and to be performed entirely in such state.
SECTION 3.04. Entire Agreement. The Merger Agreement (as
amended by this Amendment) and the Confidentiality Agreements constitute the
entire agreement of the parties
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hereto with respect to the subject matter hereof and supercede all prior
agreements and undertakings, both written and oral between Halter Marine and
Xxxxxx Xxxxxxx with respect to the subject matter hereof.
IN WITNESS WHEREOF, Xxxxxx Xxxxxxx and Halter Marine have
each caused this Amendment to be executed as of the date first written above by
their respective officers thereunto duly authorized.
HALTER MARINE GROUP, INC.
By: /s/ Xxxx X. Xxxx
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Name: Xxxx X. Xxxx
Title: Executive Vice President
XXXXXX XXXXXXX INTERNATIONAL INC.
By: /s/ Xxxx X. Xxxxxx
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Name: Xxxx X. Xxxxxx
Title: Executive Vice President
