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EXHIBIT 99.5
STOCKHOLDERS' AGREEMENT
TRANSCOASTAL MARINE SERVICES, INC.
This Agreement is dated effective November 29, 1997 is made among
(1) TransCoastal Marine Services, Inc. (the "Parent"); (2) the undersigned
officers, directors and other insiders of the Parent (the "Parent Insiders");
and (3) Xxxxx Xxxxxxx, Xxxxxxx Xxxxxxx, Xxxxx Xxxxxxx, Xxxxxx Xxxxxxx, and
Xxxxx Xxxxxxx (the "Xxxxxxx Stockholders"). This Agreement is made with
reference to the following facts and objectives:
RECITALS
A. Parent has agreed to acquire Xxxxxxx Construction Company,
Inc., Laine Construction Company, Inc., Xxxx Corporation and EnviroSystems,
Inc.( the "Xxxxxxx Companies") pursuant to four separate agreements dated
August 28, 1997 (the "Acquisition Agreements"), pursuant to which the Xxxxxxx
Stockholders, each of whom is a shareholder of one or more of the Xxxxxxx
Companies, will receive (among other things) shares of the Common Stock, $.001
par value, of Parent ("Common Stock").
B. Section 4.2(o) of each of the Acquisition Agreements included
among the conditions to the Preliminary Closing under the Acquisition
Agreements confection of a shareholder agreement among the Parent, the Xxxxxxx
Stockholders and the Parent Insiders and their affiliates.
C. Parties to this Agreement have concurred on the terms of this
Agreement set forth below and agree that, when duly executed and delivered by
or on behalf of all such persons, this Agreement shall satisfy the condition
set forth in each such Section 4.2(o).
The parties accordingly agree as follows:
AGREEMENT
1. TAG ALONG RIGHTS.
(a) NOTICE OF PROPOSED SALE. If, at any time before the
second anniversary of the date of this Agreement, any of the Parent Insiders or
their affiliates ("Seller") propose to sell, exchange or otherwise transfer
(other than by gratuitous donation) ("transfer") any shares of Common Stock in
any transaction or series of transactions which would result in the transfer,
taking into account all prior transfers (excluding any shares of Common Stock
sold in the public market) of more than a collective aggregate of 75,000
shares of common stock of the Company (subject to adjustment under Section 4),
then, at least 30 days before the date of the transfer, the
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Seller must deliver to each Xxxxxxx Stockholder the notice of the proposed
transaction (a "Sale Notice") specifying (a) the name and the address of the
person or persons (the "Acquiring Party") to whom the Seller proposes to
transfer shares of stock; (b) the number of shares of stock proposed to be
transferred; and (c) the price or amount and other terms and conditions of the
proposed transfer (the "Stipulated Terms").
(b) RIGHTS OF OTHER PARTIES. Upon receipt of a Sale
Notice, each Xxxxxxx Stockholder shall have the right, exercisable by written
notice (a"Tag Along Notice") delivered to the Seller no later than 10 days
before the date of the proposed transfer, as indicated in the Sale Notice, to
require that the terms of the proposed transfer obligate the Acquiring Party,
as a condition to the transfer, to acquire at the time of the consummation of
the transfer, on the Stipulated Terms, that number of shares held by the
Xxxxxxx Stockholder that is equal to the product of (1) the number of shares
that the Acquiring Party will accept and (2) a fraction, the numerator of which
is the number of shares of Parent held by the Xxxxxxx Stockholders and the
denominator of which is the total number of shares of stock of the Company
owned by the Seller and the Xxxxxxx Stockholders who elect to participate in
the sale.
(c) RIGHTS OF SELLERS. If no Xxxxxxx Stockholder
delivers a Tag Along Notice with respect to the proposed transfer, the Seller
may proceed at any time within 90 days after the date of the Sale Notice to
transfer the shares described in the Sale Notice on the Stipulated Terms. If,
however, that transfer is not consummated within that time, the Seller may not
consummate such a transfer until he has again complied with the terms of
Section 1 with respect to the proposed transfer.
2. RESTRICTIONS ON STOCK TRANSFER BY PARENT INSIDERS. Until the
earlier of the second anniversary of the effective date of this Agreement or
the date on which the Xxxxxxx Stockholders own in the aggregate fewer than
100,000 shares of stock of the Parent (subject to adjustment under Section 4),
no Parent Insider or affiliate of a Parent Insider shall transfer or permit any
of the Parent Insider's affiliates to transfer any shares of stock of the
Parent except as permitted by Section 3.
3. PERMITTED TRANSFERS. A Parent Insider or affiliate of a
Parent Insider may at any time in any period of six months transfer in one or
more transactions not involving a public offering, a number of shares of Common
Stock of the Parent not exceeding the lesser of (1) the number of such shares
that would then be permitted to transfer under Rule 144(e) under the Securities
Act of 1933 to be sold in a period of three months by an affiliate of the
Parent selling under Rule 144 and (2) 10 percent of the shares of Common Stock
of the Parent then owned beneficially or of record by the transferor. A Parent
Insider or affiliate of a Parent Insider may at any time transfer shares of
stock of the Parent to or for the benefit of any combination of his or her
spouse or children or to an affiliate of the transferring Parent Insider.
4. ADJUSTMENT IN NUMBER OF SHARES. In case of any merger,
consolidation, reorganization, stock split, reverse stock split, dividend in
stock or in rights to acquire stock at a price below the then market price for
the Common Stock of the Parent, then the specified number of shares set forth
in Sections 1(a) and 2 shall be adjusted to take into account such event
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and to reflect the proportionate ownership interest in the Company and its
successors following such event.
5. WAIVER OF THE "LOCK-UP" AGREEMENT. The Parent Insiders will
give prompt notice to the Xxxxxxx Stockholders of any request made by any of
the Parent Insiders or their affiliates for waiver or modification of the
"lock-up" agreement between any of the Parent Insiders and the underwriters of
Parent's initial public offering.
6. MISCELLANEOUS
(a) APPLICABLE LAW. This Agreement shall be governed by,
and construed and enforced in accordance with, the laws of the State of
Delaware.
(b) NOTICES. Unless otherwise expressly provided
elsewhere herein, any election, notice or other communication required or
permitted to be given shall be deemed to have been given if and when delivered
personally (with receipt acknowledged) or when mailed, by first class certified
or registered mail return receipt requested, with proper postage prepaid, or
when sent by a national commercial courier service (such as Federal Express or
United Parcel Service) for next day delivery, to be confirmed in writing by
such courier, or when telegraphed or telexed: to the Parent at its registered
office, and to a Xxxxxxx Stockholder at the address set forth in the
Acquisition Agreements (as it may from time to time be changed as therein
permitted).
(c) ENTIRE AGREEMENT. This Agreement contains the entire
agreement of the parties and supersedes all prior agreements and
understandings, oral or otherwise, among them with respect to the matters
contained herein and may not be modified or amended except as set forth herein.
(d) CAPTIONS, GENDER AND NUMBER. The article and section
headings herein are for convenience of references only and in no way define,
limit or describe the scope or intent of any provisions of this Agreement or in
any way affect any such provisions. Where appropriate as used herein, the
masculine gender shall be deemed to include the feminine and the neuter and the
singular number shall be deemed to include the plural and the plural number
shall be deemed to include the singular, and vice versa.
(e) SEPARABILITY. Each provision of this Agreement shall
be considered to be separable and, if, for any reason, any such provision or
any part thereof is determined to be invalid and contrary to any existing or
future applicable law, such invalidity shall not impair the operation of or
affect those portions of this Agreement that are valid, but this Agreement
shall be construed and enforced in all respect as if the invalid or
unenforceable provision had been omitted.
(f) FURTHER ACTIONS. Each party hereby agrees
hereafter to execute and deliver such further instruments and do such further
acts and things as may be required or useful to carry out or further evidence
the intent and purpose of this Agreement and which are not inconsistent with
the terms hereof. The Parent Insiders agree to cause their affiliates to
comply with all revisions of this Agreement applicable to such affiliates.
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(g) AMENDMENTS. Except as otherwise expressly provided
herein or as otherwise required by law, this Agreement may be amended or
terminated or the provisions hereof waived or suspended upon the approval of
the Parent Insiders and the Xxxxxxx Shareholders.
IN WITNESS WHEREOF, the undersigned have executed this Agreement as of
the date first set forth above.
PARENT:
TransCoastal Marine Services, Inc.
By: /s/ XXXX XXXXX
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PARENT INSIDERS:
/s/ XXXX X. XXXXXXXXXX
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Xxxx X. Xxxxxxxxxx
/s/ XXXX "BO" XXXXX
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Xxxx "Bo" Xxxxx
/s/ XXXXXXX X. XXXXXXXX
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Xxxxxxx X. Xxxxxxxx
/s/ G. XXXXX XXXX
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G. Xxxxx Xxxx
/s/ XXXXX X. XXXXXXXX, XX.
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Xxxxx X. Xxxxxxxx, Xx.
/s/ XXXX XXXXX
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Xxxx Xxxxx
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J&D Capital Investments, L.C.
By: /s/ G. XXXXX XXXX
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/s/ XXXXX XXXXXXX
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Xxxxx Xxxxxxx
/s/ XXXXXXX XXXXXXX
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Xxxxxxx Xxxxxxx
/s/ XXXXX XXXXXXX
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Xxxxx Xxxxxxx
/s/ XXXXXX XXXXXXX
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Xxxxxx Xxxxxxx
/s/ XXXXX XXXXXXX
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Xxxxx Xxxxxxx
