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EXHIBIT 2.3
SECOND AMENDMENT TO THE
STOCK PURCHASE AGREEMENT
PREAMBLE
THIS SECOND AMENDMENT TO THE STOCK PURCHASE AGREEMENT (hereinafter
referred to as the "Second Agreement"), dated as of the 30th day of January,
1998, amending that certain Stock Purchase Agreement by and among the parties
hereto dated October 15, 1997 (the "Stock Purchase Agreement," as amended by the
Second Amendment is hereinafter referred to as the "Agreement") is made and
entered into by and among:
XXXX X. XXXXXXXXX, III, an individual of lawful age domiciled in
Hockley, Texas, who is the sole shareholder of Xxxx Xxxxxxxxx Marine,
Inc. (collectively, along with his undersigned spouse, the "Sellers");
and
XXXX XXXXXXXXX MARINE, INC., a Texas corporation whose principal place
of business is located at Pasadena, Texas, and which is the owner of
all the outstanding shares of all of its subsidiaries, including but
not limited to its subsidiary, Xxxxxxxxx Shipyard and Fabrication,
Inc., a Texas corporation; and
XXXXXXXXX SHIPYARD AND FABRICATION, INC., a Texas corporation whose
principal place of business is located at Galveston, Texas, and which
is the wholly owned subsidiary of Xxxx Xxxxxxxxx Marine, Inc.
The above two corporations hereinafter collectively referred to as the
"Company;" and
EAE SERVICES, INC., a Texas corporation whose principal place of
business is located at Baton Rouge, Louisiana (the "Purchaser"); and
FIRST WAVE MARINE, INC., a Delaware corporation whose principal place
of business is located at Baton Rouge, Louisiana, appearing herein for
the limited purposes of providing for certain stock options and
guarantying the Purchaser's promissory note provided for in Section
2.02.
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RECITALS
WHEREAS, the parties desire to amend the Stock Purchase Agreement to
modify Section 2.06 and for other purposes.
NOW, THEREFORE, in consideration of the premises and the mutual
agreements and tenants hereafter set forth, the Sellers, the Company and the
Purchaser hereby agree as follows:
1. Paragraph 2.06 is hereby amended in its entirety as follows:
SECTION 2.06. Additional Consideration. In the event that the Xxxxx 00,
0000 XXXXXX of the Company exceeds $4,500,000.00, the Purchaser shall, within
ten (10) Business Days after the Agreed Date, pay to Xxxx X. Xxxxxxxxx, III, as
an additional payment for the purchase price of his shares, one-half (1/2) of
the amount by which the Company's final Xxxxx 00, 0000 XXXXXX exceeds
$4,500,000.00. The parties anticipate that through March 31, 1998, Xxxx X.
Xxxxxxxxx, III, shall remain employed as an active executive officer of the
Company for $30,000.00 per month, with normal and customary fringe benefits and
use of Company car. Any dispute or disagreement with respect to the computation
of the Company's EBITDA or the increase in purchase price to Xxxx X. Xxxxxxxxx,
III, shall be resolved by arbitration as provided in Section 11.16 of the Stock
Purchase Agreement.
2. On or before March 31, 1998, Xxxx X. Xxxxxxxxx, III will assume the
ownership and responsibility for the Valley Forge Life Insurance (Policy Number
ULHN000354) on the life of Xxxx X. Xxxxxxxxx, III and will pay to the Company
the cash surrender value of the policy, if any.
3. On or before March 31, 1998, upon the termination of the split
dollar life insurance policies (Sun Life Assurance Company of Canada, Policy
Number 020011920 and Protective Life Insurance Company, Policy Number B00255740)
on the life of Xxxx X. Xxxxxxxxx, III, either Xxxx X. Xxxxxxxxx, III or the
Trust shall repay the Company the lesser of (a) the cash surrender value of the
policies or (b) the total amount of paid premiums on the policies.
4. Upon the stock sale of the Company, the pooled Workers Compensation
insurance policy of the Company and Xxx Xxxxxxxxx, Inc. will be canceled. Any
premium refund from the audit of the payrolls of the respective corporations
will be used to repay the A.I. Credit Corp. note. If any refund in excess of the
note amount is due as a result
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of the Audit, the excess will be divided among Xxxx Xxxxxxxxx Marine, Inc.,
Xxxxxxxxx Shipyard and Fabrication, Inc. and Xxx Xxxxxxxxx, Inc. pro rata
according to the respective premium payments as adjusted after audit of the
respective three companies.
5. Upon the stock sale of the Company, the pooled general liability
insurance policy will be cancelled. Xxxx Xxxxxxxxx Marine, Inc., Xxxxxxxxx
Shipyard and Fabrication, Inc. and Xxx Xxxxxxxxx, Inc. will be entitled to
receive any refunded premiums for the period ending March 31, 1998, pro rata
according to the payment of the premiums for such insurance.
6. If the independent firm of certified public accountants auditing the
Purchaser determines that any tax penalties are due to the Internal Revenue
Service ("IRS") for the non-payment of any estimated taxes for fiscal year end
March 31, 1998, such penalties, plus any interest, if any, thereon, may be
reserved by Purchaser from the payment of the Promissory Note of EAE Services,
Inc. to Xxxx X. Xxxxxxxxx, III, until it is mutually agreed by the parties
whether or not any such penalties may be assessed by the IRS. Any amount
reserved against the Promissory Note shall remain subject to the terms of the
Promissory Note, including but not limited to, the accrual of interest.
7. To the extent any of the Assets conveyed to Purchaser by the Stock
Purchase Agreement are owned of record by Cottonpatch Equipment Company, Xxxx X.
Xxxxxxxxx, III agrees to cause Cottonpatch Equipment Company to convey such
assets to the Company.
8. The Purchaser agrees to use its best efforts to review, confirm and
determine the financial data of the Company by February 28, 1998 in order to
fulfill its obligations contained in the Promissory Note of EAE Services, Inc.
to Xxxx X. Xxxxxxxxx, III.
9. Except as amended by section 1 of the First Amendment and this
Second Amendment all other terms of the Stock Purchase Agreement shall remain in
full force and effect. All references to "Agreement" in the Stock Purchase
Agreement shall mean as amended by the First and Second Amendments.
[THE NEXT PAGE IS THE SIGNATURE PAGE TO THIS AGREEMENT.]
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IN WITNESS WHEREOF, the Sellers, the Company, the Purchaser and First
Wave Marine, Inc. have caused this Agreement to be executed as of the date first
written above, the corporate parties represented herein by their respective
officers thereunto duly authorized.
SELLERS:
/s/ Xxxx X. Xxxxxxxxx, III
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Xxxx X. Xxxxxxxxx, III
/s/ Xxxxx X. Xxxxxxxxx
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Xxxxx X. Xxxxxxxxx
THE COMPANY:
XXXX XXXXXXXXX MARINE, INC.
By: /s/ Xxxx X. Xxxxxxxxx, III
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Xxxx X. Xxxxxxxxx, III
President
XXXXXXXXX SHIPYARD AND
FABRICATION, INC.
By: /s/ Xxxx X. Xxxxxxxxx, III
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Xxxx X. Xxxxxxxxx, III
President
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THE PURCHASER:
EAE SERVICES, INC.
By: /s/ Xxxxxx X. Xxxxx
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Xxxxxx X. Xxxxx
Chief Executive Officer and
Chairman of the Board
Intervening for the purpose of agreeing
to guarantee Purchaser's Note as provided
in Section 2.02(f), and to grant stock
options as provided in Section 6.01:
FIRST WAVE MARINE, INC.
By: /s/ Xxxxxx X. Xxxxx
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Xxxxxx X. Xxxxx
Chief Executive Officer and
Chairman of the Board
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