SEACOR SMIT INC.
0000 XXXXXX XX XXX XXXXXXXX
XXX XXXX, XX 00000
Exhibit 10.2
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February 23, 2001
Xx. Xxxxx Xxxxxxxx
00000 Xxxx Xxxx Xxxxxx
Xxx Xxx, Xxxxxxxxx 00000
Re: Amendment to Stock Purchase Agreement by and between
SEACOR SMIT Inc. and Xxxxx Xxxxxxxx
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Dear Xx. Xxxxxxxx:
This letter agreement is written in reference to that certain
Stock Purchase Agreement, dated as of January 30, 2001 (the "Stock Purchase
Agreement"), by and between SEACOR SMIT Inc. (the "Purchaser") and you (the
"Seller"). Capitalized terms used herein but not otherwise defined herein shall
have the meanings ascribed to them in the Stock Purchase Agreement.
For good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, we agree that the Stock Purchase
Agreement is hereby amended as follows:
1. Section 2.2(b) of the Stock Purchase Agreement shall be
amended to read in its entirety as follows:
"(b) On the Closing Date, (i) the Purchaser shall pay to the
Seller the sum of (A) $37,495,172.00 and (B) an amount equal to
interest thereon at the rate of 6.5% per annum from the January 1, 2001
through and including the Closing Date (which amounts to $360,570.01),
which sum is equal to $37,855,742.01 (the "Estimated Purchase Price"),
minus (C) $500,000 held in the Xxxxxxx Money Escrow Fund, by delivering
to the Seller a certified or bank cashier's check in New York Clearing
House Funds, payable to the order of the Seller or, at the Seller's
option, by wire transfer of immediately available funds into an account
designated by the Seller in writing not later than three Business Days
prior to the Closing Date and (ii) the Purchaser and the Seller shall
instruct the Xxxxxxx Money Escrow Agent to deliver $500,000 of the
Xxxxxxx Money Escrow Fund to the Seller and the balance of the Xxxxxxx
Money Escrow Fund to the Purchaser."
2. Section 9.1(b)(iii) is hereby amended to read in its
entirety as follows:
"(iii) any and all liabilities, losses, obligations, damages,
costs and expenses (collectively, "Losses") of the Seller of every
Xx. Xxxxx Xxxxxxxx
February 23, 2001
Page 2 of 3
kind, nature and description, arising out of the operation of the
businesses of the Companies after the Closing Date; and"
3. Section 9.4(f) is hereby amended to read in its entirety as
follows:
"(f) Except as otherwise provided in Section 2.3, any dispute
as to any matter covered by this Section 9.4 shall be resolved by an
independent accounting firm mutually acceptable to the Seller and the
Purchaser. The fees and expenses of such accounting firm shall be borne
equally by the Seller and the Purchaser."
4. The following Section 9.4(i) is hereby added to the Stock
Purchase Agreement:
(i) Section 388(h)(10) Election.
(i) At the election of the Purchaser, the Seller shall join
with the Purchaser in filing an election under Section 338(h)(10) of
the Code and under any comparable provisions of state, local, or
foreign law with respect to the purchase of the outstanding stock of
G&B and/or Gilco, as applicable (an "Election") provided that (i) the
Purchaser notifies Seller's Accountants whether the Purchaser will make
an Election no later than 45 days prior to the due date of such
Election (the "Notification Date"), (ii) the Purchaser provides
Seller's Accountants on the Notification Date with a completed copy of
Internal Revenue Service Form 8023-A and any similar forms under
applicable state, local, or foreign law (the "Election Forms"), (iii)
the Purchaser provides Seller's Accountants with a statement setting
forth the Election Tax Cost (including the applicable tax calculations
for the Seller), and (iv) Seller's Accountants agree to the amount of
the Election Tax Cost (a determination which shall be made reasonably).
If the above conditions are satisfied, then not later than five days
prior to the due date of the Election, a supplemental closing will
occur at which:
(A) the Seller shall execute the Election Forms;
(B) the Purchaser shall pay to the Seller the
Election Tax Cost; and
(C) the Purchaser shall deliver to the Seller an
agreement pursuant to which (1) the Purchaser agrees to indemnify the
Seller against any costs (including additional Taxes due) if the
Internal Revenue Service or any other taxing authority should dispute
the validity of the Election under the circumstances or asserts a claim
that would result in the amount paid by the Purchaser pursuant to
clause (B) above being insufficient to make the Seller whole (i.e.,
that the Seller is in a worse economic position than he would have been
if the Election had not been made) and (2) the Seller agrees that, if
the Election is determined to be invalid, the Seller shall refund to
the Purchaser the amount, if any, by which the amount paid by the
Purchaser to the Seller pursuant to clause (B) above exceeds the amount
Xx. Xxxxx Xxxxxxxx
February 23, 2001
Page 3 of 3
of Taxes ultimately determined to be payable by the Seller and costs
incurred by the Seller relating to the Election (it being understood
and agreed that, to the extent any or all of such excess has been paid
to and not refunded by the applicable taxing authority, the Seller
shall not be required to pay all or such portion of such excess to the
Purchaser until the Seller has received a refund therefor; it being
further understood and agreed that the Seller will use reasonable
commercial efforts, at the Purchaser's cost and expense to obtain any
Tax refunds available).
(ii) The term "Election Tax Cost" shall mean, with respect to
each of the G&B Shares and the Gilco Shares, as the case may be, an
amount, equal to the excess (if any) of (w) the amount of federal
income and Louisiana state income Taxes payable by the Seller with
respect to the sale of the G&B Shares or the Gilco Shares, as the case
may be, as a consequence of an Election over (x) the amount of federal
income and Louisiana state income Taxes that would have been payable by
the Seller with respect to the sale of the G&B Shares or Gilco Shares,
as the case may be, if an Election had not been made. The Election Tax
Cost shall be calculated on an after tax basis, so that the total
amount received by the Seller is grossed up to include additional
federal income Taxes and Louisiana state income resulting from the
receipt of Election Tax Cost.
(iii) The Purchaser shall reimburse the Seller for all
reasonable out-of-pocket expenses incurred in connection with an
Election, including, without limitation, the reasonable fees and
expenses of Seller's Accountants.
5. We hereby agree that, except as amended hereby, the Stock
Purchase Agreement remains in full force and effect in accordance with its
terms.
If the foregoing accurately reflects our understanding and
agreement, please so indicate by signing a copy of this letter in the space
provided below and returning it to the undersigned.
Very truly yours,
SEACOR SMIT INC.
By: /s/ Xxxx X. Xxxx
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Name: Xxxx X. Xxxx
Title: Vice President
Agreed to and accepted as of the date
first above written:
/s/ Xxxxx Xxxxxxxx
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Xxxxx Xxxxxxxx
