Exhibit 6A
EXECUTION COPY
STOCKHOLDERS' AGREEMENT
STOCKHOLDERS' AGREEMENT, dated as of March 16, 2005, among SEACOR HOLDINGS
INC., a Delaware corporation ("Parent"), SBLK Acquisition Corp., a Delaware
corporation and a wholly owned subsidiary of Parent ("Merger Sub"), CORBULK LLC,
a Delaware limited liability company and wholly owned subsidiary of Parent
("LLC") and the stockholders named on Exhibit A hereto (each a "Stockholder").
WHEREAS, simultaneously herewith, Parent, Merger Sub and LLC are entering
into an Agreement and Plan of Merger, dated as of the date hereof (as amended
from time to time, the "Merger Agreement"), with Seabulk International, Inc., a
Delaware corporation (the "Company"), which contemplates, among other things,
that (i) Merger Sub will merge with and into the Company pursuant to the terms
of the Merger Agreement (the "Reverse Merger") and (ii) if required pursuant to
the terms of the Merger Agreement, immediately after the Reverse Merger
Effective Time and pursuant to the terms and conditions of the Merger Agreement,
the surviving corporation of the Reverse Merger will merge with and into LLC;
capitalized terms used but not defined herein shall have the meanings set forth
in the Merger Agreement, whether or not the Merger Agreement shall be in effect
from time to time;
WHEREAS, as of the date hereof, each Stockholder owns (either beneficially
or of record) the number of shares of common stock, par value $.01 per share, of
the Company ("Company Common Stock") set forth opposite such Stockholder's name
on Exhibit A hereto, which represent, in the aggregate, approximately 75% of the
issued and outstanding shares of Company Common Stock as of the date hereof (the
"Existing Shares"; all such Existing Shares and any additional shares of Company
Common Stock hereafter acquired by any Stockholder prior to the termination of
this Agreement being referred to herein as the "Shares");
WHEREAS, obtaining Company Stockholder Approval is a condition to the
consummation of the transactions contemplated by the Merger Agreement; and
WHEREAS, as a condition to the willingness of Parent, Merger Sub and LLC to
enter into the Merger Agreement, Parent, Merger Sub and LLC have requested that
each Stockholder agree, and in order to induce Parent, Merger Sub and LLC to
enter into the Merger Agreement, each Stockholder has agreed, severally and not
jointly, to enter into this Agreement;
NOW, THEREFORE, in consideration of the foregoing and the mutual covenants
and agreements contained herein, and intending to be legally bound hereby, the
parties hereto agree as follows:
ARTICLE I
REPRESENTATIONS AND WARRANTIES
SECTION 1.1 Representations and Warranties of the Stockholder. Each
Stockholder severally and not jointly represents and warrants to Parent solely
with respect to such Stockholder as follows:
(a) Such Stockholder has the requisite power, authority and legal
capacity to enter into and deliver this Agreement and to carry out its
obligations hereunder. This Agreement has been duly executed and delivered by
such Stockholder and, assuming its due authorization, execution and delivery by
Parent, Merger Sub and LLC, is a legal, valid and binding obligation of such
Stockholder, enforceable against such Stockholder in accordance with its terms
except to the extent such enforceability is limited by the Bankruptcy and Equity
Exception.
(b) The execution and delivery of this Agreement by such Stockholder
does not, and the performance of this Agreement by such Stockholder will not,
(i) conflict with or violate any Laws or (ii) conflict with or violate any
contract or other instrument to which the Stockholder is a party or by which
such Stockholder is bound, including, without limitation, any voting agreement,
stockholders agreement or voting trust, except for any Liens created hereby or
to the extent waived on or prior to the date hereof.
(c) The execution and delivery of this Agreement by such Stockholder
does not, and the performance of this Agreement by such Stockholder will not,
require such Stockholder to obtain any consent, approval, authorization or
permit of, or to make any filing with or notification to, any person or
Governmental Authority except to the extent waived on or prior to the date
hereof.
(d) There is no suit, action, investigation or proceeding pending or,
to the knowledge of such Stockholder, threatened against such Stockholder at law
or in equity before or by any Governmental Authority that could reasonably be
expected to impair the ability of such Stockholder to perform its obligations
hereunder, and there is no judgment, decree, injunction, rule, order or writ of
any Governmental Authority to which such Stockholder is or its assets are
subject that could reasonably be expected to impair the ability of such
Stockholder to perform its obligations hereunder.
(e) Such Stockholder (other than C/R Marine Non-U.S. Partnership,
L.P.) is, and at all times has been, a citizen of the United States within the
meaning of Section 2 of the Shipping Act, 1916, as amended, for the purposes of
owning and operating vessels in the U.S. coastwise trade. None of the
Stockholders is a "foreign person" within the meaning of Section 1445 of the
Code.
(f) Each Stockholder owns beneficially and of record the Existing
Shares set forth opposite such Stockholder's name on Exhibit A hereto, which
constitute
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all of the shares of Company Common Stock owned beneficially and of record by
such Stockholder. Such Stockholder has sole voting power, sole power of
disposition and all other stockholder rights with respect to all of its Existing
Shares, with no restrictions, other than restrictions on voting or disposition
pursuant to applicable securities laws or set forth in the Company Stockholders'
Agreement, on such Stockholder's rights of voting or disposition pertaining
thereto. Such Stockholder has good and valid title to all Existing Shares, free
and clear of all Liens (other than any Liens created hereby).
ARTICLE II
NO SOLICITATION
SECTION 2.1 General. Except to the extent the Company is permitted to do so
by the Merger Agreement, Stockholder will not, and will not permit any of its
Affiliates, attorneys, representatives or agents (collectively, the
"Representatives") to, directly or indirectly, (i) solicit, initiate or
knowingly encourage (including by way of furnishing information) any inquiries
or proposals that constitute, or may reasonably be expected to lead to, any
Takeover Proposal, (ii) participate in any discussions or negotiations with any
third party regarding any Takeover Proposal or (iii) enter into any agreement
related to any Takeover Proposal.
SECTION 2.2 Notification. Stockholder shall, or shall cause the Company to,
promptly advise Parent, orally and in writing, and in no event later than 24
hours after receipt of, any bona fide Takeover Proposal or if any non-public
information is requested from, or any discussions or negotiations are sought to
be initiated or continued with, the Company in respect of any Takeover Proposal,
and shall, in any such notice to Parent, indicate the identity of such Person
and a description of the material terms and conditions of any Takeover Proposals
(and shall include with such notice copies of any written materials received
from or on behalf of such Person relating to such proposal), and thereafter
shall promptly keep Parent fully informed of all material developments affecting
the status and terms of any such proposals (and shall provide Parent with copies
of any additional written materials received that relate to such proposals).
SECTION 2.3 Ongoing Discussions. Stockholder shall (and shall cause its
Representatives to) immediately cease and cause to be terminated any discussions
or negotiations with any Persons being conducted with respect to a Takeover
Proposal on the date hereof.
ARTICLE III
AGREEMENT TO VOTE; RESTRICTIONS ON VOTING AND DISPOSITIONS;
IRREVOCABLE PROXY
SECTION 3.1 Agreement to Vote. So long as this Agreement has not been
terminated in accordance with its terms, each Stockholder hereby agrees to vote
all of such Stockholder's Existing Shares or execute a written consent in
respect thereof, (i) for
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approval and adoption of the Merger Agreement (as amended from time to time) and
the transactions contemplated by the Merger Agreement, as applicable, at any
meeting or meetings of the stockholders of the Company at which the Merger
Agreement or the transactions contemplated thereunder are submitted for the vote
of such Stockholder or in any written consent in respect thereof, (ii) against
any Takeover Proposal, without regard to any Board recommendation to
stockholders concerning such Takeover Proposal, and without regard to the terms
of such Takeover Proposal, (iii) against any agreement, amendment of any
agreement (including the Company's Certificate of Incorporation or By-Laws), or
any other action that is intended or could reasonably be expected to prevent,
impede, interfere with, delay, postpone, or discourage the transactions
contemplated by the Merger Agreement, other than those specifically contemplated
by this Agreement or the Merger Agreement, or (iv) against any action,
agreement, transaction or proposal that would result in a breach of any
representation, warranty, covenant, agreement or other obligation of the Company
in the Merger Agreement. Any such vote shall be cast (or consent shall be given)
by Stockholder in accordance with the procedures relating thereto so as to
ensure that it is duly counted, including for purposes of determining that a
quorum is present and for the purposes of recording such vote (or consent).
SECTION 3.2 Restrictions on Dispositions. Except as permitted or required
by the Merger Agreement, each Stockholder hereby agrees that, without the prior
written consent of Parent, such Stockholder shall not, directly or indirectly,
sell, offer to sell, give, pledge, encumber, assign, grant any option for the
sale of or otherwise transfer or dispose of, or enter into any agreement,
arrangement or understanding to sell, any Shares (collectively, "Transfer")
other than to its Affiliates, provided that as a condition to such Transfer,
such Affiliate shall execute an agreement that is identical to this Agreement
(except to reflect the change of the Stockholder) at which time, such
Stockholder's obligations hereunder shall terminated with respect to such
Transferred Shares; provided, further, that C/R Marine Coinvestment II, L.P. may
Transfer any or all of its Shares to its limited partners, in which event, such
limited partners shall not be required to execute an agreement that is identical
to this Agreement.
SECTION 3.3 Irrevocable Proxy. Subject to the last two sentences of this
Section 3.3, so long as this Agreement has not been terminated in accordance
with its terms, each Stockholder hereby irrevocably appoints Parent or its
designee as such Stockholder's agent, attorney and proxy, to vote (or cause to
be voted) the Existing Shares owned by such Stockholder in favor of approval of
the Merger Agreement and the transactions contemplated by the Merger Agreement.
This proxy is irrevocable (so long as this Agreement has not been terminated in
accordance with its terms) and coupled with an interest and is granted in
consideration of the Company, Parent, Merger Sub and LLC entering into the
Merger Agreement. Notwithstanding the foregoing, in the event that this
Agreement is terminated in accordance with its terms, such proxy shall be deemed
revoked and shall terminate without any further action by the parties hereto. In
the event that a Stockholder fails for any reason to vote its Existing Shares in
accordance with the requirements of Section 3.1 hereof, then the proxyholder
shall have the right to vote such
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Existing Shares in accordance with the provisions of the first sentence of this
Section 3.3. Unless this Agreement has been terminated in accordance with its
terms, the vote of the proxyholder shall control in any conflict between the
vote by the proxyholder of a Stockholder's Existing Shares and a vote by such
Stockholder of its Existing Shares.
SECTION 3.4 Inconsistent Agreements. Each Stockholder hereby agrees that it
shall not enter into any agreement, contract or understanding with any Person
prior to the termination of the Merger Agreement directly or indirectly to vote,
grant a proxy or power of attorney or give instructions with respect to the
voting of its Shares in any manner which is inconsistent with this Agreement.
ARTICLE IV
MISCELLANEOUS
SECTION 4.1 Obligations Several, Not Joint. All obligations,
representations and warranties of the Stockholders hereunder shall be several
and not joint and in no event shall any Stockholder have any liability for any
breach of this Agreement by any other Stockholder.
SECTION 4.2 Termination. In the event that the Merger Agreement is
terminated in accordance with its terms, this Agreement shall terminate without
any further action by the parties hereto. This Agreement shall be deemed
satisfied in full and terminated upon the consummation of the Reverse Merger or,
if applicable, the Mergers.
SECTION 4.3 Non-Survival. The representations and warranties made herein
shall not survive the termination of this Agreement.
SECTION 4.4 No Limitations on Actions. Each Stockholder signs this
Agreement solely in its capacity as the record and/or beneficial owner, as
applicable, of such Stockholder's Existing Shares; this Agreement shall not
limit or otherwise affect the actions of the Stockholder or any Affiliate,
employee or designee of the Stockholder or any of its Affiliates in any other
capacity, including such person's capacity, if any, as a member of the Board of
Directors of the Company; and nothing herein shall limit or affect the Company's
rights in connection with the Merger Agreement.
SECTION 4.5 Severability. If any term or other provision of this Agreement
is or is deemed to be invalid, illegal or incapable of being enforced by any
applicable rule of law or public policy, all other conditions and provisions of
this Agreement shall nevertheless remain in full force and effect so long as the
economic or legal substance of this Agreement is not affected in any manner
materially adverse to any party. Upon such determination that any term or other
provision is invalid, illegal or incapable of being enforced, the parties hereto
shall negotiate in good faith to modify this Agreement so as to effect the
original intent of the parties as closely as possible in a mutually acceptable
manner so that the terms of this Agreement remain as originally contemplated to
the fullest extent possible.
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SECTION 4.6 Entire Agreement. This Agreement constitutes the entire
understanding between Parent, Merger Sub, LLC and each Stockholder with respect
to the subject matter hereof and thereof and supersedes all prior agreements and
understandings, both written and oral, between Parent, Merger Sub, LLC and each
Stockholder with respect to the subject matter hereof and thereof.
SECTION 4.7 Counterparts. This Agreement may be executed and delivered
(including by facsimile transmission) in one or more counterparts, and by the
different parties hereto in separate counterparts, each of which when executed
and delivered shall be deemed to be an original but all of which taken together
shall constitute one and the same instrument.
SECTION 4.8 Mutual Drafting. Each party hereto has participated in the
drafting of this Agreement, which each party acknowledges is the result of
extensive negotiations between the parties.
SECTION 4.9 Assignment. This Agreement shall not be assigned by operation
of law or otherwise without the prior written consent of the other parties
hereto, provided that Parent may assign its rights hereunder to any direct or
indirect wholly owned subsidiary of Parent.
SECTION 4.10 Amendments. This Agreement may not be amended, supplemented,
waived or otherwise modified or terminated, except upon the execution and
delivery of a written agreement executed by the parties hereto.
SECTION 4.11 Notices. All notices, requests, claims, demands and other
communications hereunder shall be in writing and shall be given (and shall be
deemed to have been duly received if so given) by delivery in person, facsimile
transmission, registered or certified mail (postage prepaid, return receipt
requested), or courier service providing proof of delivery to the respective
parties at the following addresses (or to such other address for a party as
shall be specified in a notice given in accordance with this Section 4.9).
If to Parent, Merger Sub or LLC:
000 Xxxx Xxxxxx
00xx Xxxxx
Xxx Xxxx, XX 00000
Attention: President
Facsimile: 000-000-0000
with copies to:
Weil, Gotshal & Xxxxxx LLP
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
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Telecopy No.: (000) 000-0000
Attention: Xxxxx X. Xxxxxxx
If to the Stockholders:
Nautilus Acquisition, L.P.
c/o CSFB Alternative Capital Division
00 Xxxxxxx Xxxxxx
00xx Xxxxx
Xxx Xxxx, XX 00000
Telecopy No.: (000) 000-0000
Attention: Xxxxxxxx Xxxxxxx
C/R Marine Non-U.S. Partnership, L.P.
C/R Marine Domestic Partnership, L.P.
C/R Marine Coinvestment, L.P.
C/R Marine Coinvestment II, L.P.
c/o Riverstone Holdings, LLC
000 Xxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Telecopy No.: (000) 000-0000
with a copy to:
Xxxxxx and Xxxxxxx
00 Xxxxxxxx Xxxxxx, XX
Xxxxx 0000
Xxxxxxxxxx, X.X. 00000-0000
Telecopy No.: (000) 000-0000
Attention: Xxxxx Xxxxxxx
SECTION 4.12 No Third Party Beneficiaries. This Agreement is not intended
to be for the benefit of, and shall not be enforceable by, any person or entity
not a party hereto.
SECTION 4.13 Specific Performance. Each of the parties hereto acknowledges
that a breach by it of any agreement contained in this Agreement will cause the
other party to sustain damage for which it would not have an adequate remedy at
law for money damages, and therefore each of the parties hereto agrees that in
the event of any such breach the aggrieved party shall be entitled to the remedy
of specific performance of such agreement and injunctive and other equitable
relief in addition to any other remedy to which it may be entitled, at law or in
equity.
SECTION 4.14 Remedies Cumulative. All rights, powers and remedies provided
under this Agreement or otherwise available in respect hereof at law or in
equity
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shall be cumulative and not alternative, and the exercise of any thereof by any
party shall not preclude the simultaneous or later exercise of any other right,
power or remedy by such party.
SECTION 4.15 No Waiver. The failure of any party hereto to exercise any
right, power or remedy provided under this Agreement or otherwise available in
respect hereof at law or in equity, or to insist upon strict compliance by any
other party hereto with its obligations hereunder, and any custom or practice of
the parties at variance with the terms hereof, shall not constitute a waiver by
such party of its rights to exercise any such or other right, power or remedy or
to demand such compliance.
SECTION 4.16 Governing Law.
(a) This Agreement shall be governed by, and construed in accordance
with, the laws of the State of Delaware, without giving effect to the principles
of conflicts of law.
(b) Each party hereby irrevocably submits to the exclusive
jurisdiction of the Court of Chancery in the State of Delaware in any action,
suit or proceeding arising in connection with this Agreement, and agrees that
any such action, suit or proceeding shall be brought only in such court (and
waives any objection based on forum non conveniens or any other objection to
venue therein); provided, however, that such consent to jurisdiction is solely
for the purpose referred to in this subsection (b) and shall not be deemed to be
a general submission to the jurisdiction of such court or in the State of
Delaware other than for such purposes.
SECTION 4.17 Waiver of Jury Trial. EACH OF PARENT, MERGER SUB AND THE
STOCKHOLDERS HEREBY IRREVOCABLY WAIVE ALL RIGHT TO TRIAL BY JURY IN ANY ACTION,
PROCEEDING OR COUNTERCLAIM (WHETHER BASED ON CONTRACT, TORT OR OTHERWISE)
ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE ACTIONS OF PARENT, MERGER
SUB OR THE STOCKHOLDERS IN THE NEGOTIATION, ADMINISTRATION, PERFORMANCE AND
ENFORCEMENT THEREOF.
SECTION 4.18 Headings. The descriptive headings contained in this Agreement
are included for convenience of reference only and shall not affect in any way
the meaning or interpretation of this Agreement.
[Signatures on Following Page.]
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IN WITNESS WHEREOF, Parent, Merger Sub, LLC and each Stockholder have
caused this Agreement to be duly executed as of the date first above written.
SEACOR HOLDINGS INC.
By:
------------------------------------------------------
Name:
Title
SBLK ACQUISITION CORP.
By:
------------------------------------------------------
Name:
Title
CORBULK LLC
By: Seacor Holdings Inc.,
its sole member
By:
-------------------------------------------------
Name:
Title:
SIGNATURE PAGE TO STOCKHOLDERS' AGREEMENT
NAUTILUS ACQUISITION, L.P.
By: Nautilus Intermediary, L.P.
its General Partner
By: Nautilus AIV, L.P.
its General Partner
By: Nautilus GP, LLC
its managing general partner
By: Turnham-Nautilus Holdings, LLC
Class A Member and Authorized Signatory
By:
-----------------------------------------
Name: Xxxxxx X. Xxxxxxx, Xx.
Title: Member and Authorized Signatory
C/R MARINE NON-U.S. PARTNERSHIP, L.P.
By: C/R Marine GP Corp.,
its general partner
By:
--------------------------------------------------
Name:
Title:
SIGNATURE PAGE TO STOCKHOLDERS' AGREEMENT
C/R MARINE DOMESTIC PARTNERSHIP, L.P.
By: C/R Marine GP Corp.,
its general partner
By:
-------------------------------------------------
Name:
Title:
C/R MARINE COINVESTMENT, L.P.
By: C/R Marine GP Corp.,
its general partner
By:
-------------------------------------------------
Name:
Title:
C/R MARINE COINVESTMENT II, L.P.
By: C/R Marine GP Corp.,
its general partner
By:
-------------------------------------------------
Name:
Title:
SIGNATURE PAGE TO STOCKHOLDERS' AGREEMENT
Exhibit A
Stockholder Shares of Company Common Stock Warrants
----------- ------------------------------ --------
Nautilus Acquisition, L.P. 11,737,830 82,365
C/R Marine Non-U.S. Partnership, 3,731,143 26,417
L.P.
C/R Marine Domestic Partnership, 1,210,368 8,569
L.P.
C/R Marine Coinvestment, L.P. 509,293 3,606
C/R Marine Coinvestment II, L.P. 365,845 2,590
(Midstream)
