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EXHIBIT 10.2
SHARE PURCHASE AGREEMENT
REGARDING
PURCHASE OF 3.330.555 SHARES IN
SEA TRUCK HOLDING AS
This Share Purchase Agreement (this "AGREEMENT") is made by and between
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1. Xxxx Xxxxx Xxxxxx XxxXxxx, with address at Xxxxxxx. 0X, Xxxxxxx, xxx
Xxxxxxx Xx0xx Invest AS, Postboks 221 4303 Sandnes,
hereinafter jointly referred to as the "SELLERS "
and
2. Gulf Offshore Norge AS, with its registered address Strandveien 50 E,
1366 Lysaker, Norway,
hereinafter referred to as the "PURCHASER",
together hereinafter referred to as the "PARTIES" and individually as a "PARTY".
PREAMBLE
- The Sellers own 3.330.555 shares (the "SHARES") in Sea Truck Holding AS
and desire to sell the Shares to the Purchaser.
- The Purchaser desires to acquire the Shares.
- This Agreement sets forth the terms and conditions of the sale of the
Shares from the Sellers to the Purchaser.
1. DEFINITIONS
For purposes of this Agreement, the following terms have the meanings specified
below:
"CLOSING" is defined in Section 2.3.
"CLOSING DATE" means the date and time as of which the Closing actually takes
place.
"COMPANY" means Sea Truck Holding AS, Organisation No. 930 395 404, with its
registered address at Strandgt. 5 X-0000 Xxxxxxx, Xxxxxx.
"COMPLETION OF THE DEMERGER" means when the Demerger has been registered by
the Norwegian Register of Business Enterprises in accordance with the Norwegian
Limited Liability Companies Act of 13 June 1997 No 44 (hereinafter referred to
as the "Companies Act") Section 14-8, cf. Section 13-16.
"DEMERGER" means the demerger of Sea Truck Holding AS contemplated prior to, and
independently of, the acquisition of the Shares, and approved by the Company's
General Meeting 27 February 2001 and anticipated to be completed at
approximately 18 June 2001.
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"ESCROW ACCOUNT AGREEMENT" means the Escrow Account Agreement enclosed hereto as
Attachment 1.
"GROUP COMPANY" means either the Company or any of its Subsidiaries.
"PURCHASE PRICE" is defined in Section 2.1.
"SHARES" is defined in the Preamble.
"SUBSIDIARY" means with respect to any Person (the "Owner"), any company or
other entity of which securities or other interests are held by the Owner or one
or more of its Subsidiaries: having the power to elect a majority of that
entity's board of directors or similar governing body; or otherwise having the
power to direct the business and policies of that entity (other than securities
or other interests having such power only upon the happening of a contingency
that has not occurred). When used without reference to a particular Person,
"Subsidiary" means a Subsidiary of the Company.
2. SALE AND PURCHASE OF SHARES; CLOSING
2.1 PURCHASE PRICE
Purchaser shall transfer an amount of NOK 51,- per Share, which in the aggregate
amounts to NOK 169.858.831,- (the "PURCHASE PRICE") to the Escrow Account (as
defined in the Escrow Account Agreement) within two banking days of the signing
of this Agreement.
2.2 CLOSING TRANSACTIONS
Subject to the conditions set forth in this Agreement, at Closing the Sellers
shall sell and transfer all of the Shares to the Purchaser and the Purchase
Price shall be released to the Sellers in accordance with the provisions of the
Escrow Account Agreement. The Sellers indebtedness to the Company will be
settled at completion prior to funds being released to the Sellers.
2.3 CLOSING
The purchase and sale (the "CLOSING") provided for in this Agreement shall take
place at the offices of [ ], at 10:00 a.m. (local time) immediately after
Completion of the Demerger or at such other time and place as the parties may
agree.
Notwithstanding the above, if the Completion of the Demerger has not taken place
before or at 18 July 2001, the Closing shall take place at 19 July 2001 or
within two weeks thereafter. The Parties shall in such case use their best
efforts to find an appropriate way to transfer the assets and liabilities
comprised by the Demerger plan to the Sellers, provided, however, that the
Sellers in such case shall indemnify the Purchaser for any costs (including tax)
incurred by the Purchaser as a consequence thereof.
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2.4 CLOSING OBLIGATIONS
At the Closing
(a) The Sellers shall deliver to the Purchaser an irrevocable, unconditional
instruction to the Company to register the Purchaseras owner of the
Shares provided only that the Purchase Price has been confirmed by
Privatbanken to have been paid in full to the Escrow account.
(b) The Sellers shall receive the Purchase Price in accordance with the
provision of the Escrow Account Agreement.
3. THE SELLERS' WARRANTIES
The Sellers warrant to the Purchaser, as at the date of this Agreement and at
the Closing as follows:
3.1 POWER AND AUTHORITY
The execution, delivery and performance of this Agreement by the Sellers have
been duly and validly authorized by all requisite action. This Agreement has
been duly executed and delivered by the Sellers and assuming the due
authorization, execution and delivery hereof by Purchaser constitutes a legal,
valid and binding obligation of Sellers, enforceable against them in accordance
with its terms.
3.2 TITLE TO THE SHARES
All of the Shares are owned of record and beneficially by the Sellers, and will
be free and clear of all liens and encumbrances at Closing.
3.3 NO MATERIAL ADVERSE CHANGE
Since 1 January 2001 there has, to the best of the Sellers knowledge, been no
material adverse change in the business of the Group Companies taken as a whole.
4. OBLIGATIONS OF THE SELLERS PRIOR TO CLOSING
4.1 NEGATIVE OBLIGATION
Between the date of this Agreement and the Closing Date, the Sellers shall take
no action, or fail to take any reasonable action within their control, as a
result of which any of the warranties set forth in Section 3 would fail to be
correct if made as of the Closing Date.
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4.2 NOTIFICATION
Between the date of this Agreement and the Closing Date, the Sellers shall
promptly notify the Purchaser in writing if the Sellers becomes aware of any
fact or condition that causes or constitutes a breach of any of the Sellers
warranties in Section 3 as of the date of this Agreement. During the same
period, the Sellers shall promptly notify the Purchaser in writing if the
Sellers becomes aware of any fact or condition that causes or constitutes any
breach of any obligation of the Sellers in this Section 4.
4.3 PAYMENT OF INDEBTEDNESS BY RELATED PERSONS
The Sellers shall cause all indebtedness owed to any Group Company by the
Sellers including, without limitation, all accounts payable to any Group
Company, to be paid in full prior to or at Closing. The total indebtedness
amounts to NOK 192 360,22 as of June 18, 2001.
5. CONDITIONS PRECEDENT TO THE PURCHASER'S OBLIGATION TO CLOSE
The Purchaser's obligation to purchase the Shares and to take the other actions
required to be taken by the Purchaser at the Closing is subject to the
satisfaction, at or prior to the Closing, of each of the following conditions
(any of which may be waived by the Purchaser, in whole or in part):
5.1 PERFORMANCE BY THE SELLERS AND THE COMPANY
All of the obligations that the Sellers are required to perform or to comply
with pursuant to this Agreement at or prior to the Closing must have been duly
performed and complied with in all respects material to the transactions
contemplated hereby.
5.2 NO PROHIBITION
Neither the consummation nor the performance of any of the transactions
contemplated hereby will, directly or indirectly (with or without notice or
lapse of time), result in a material violation of any applicable law, regulation
or Order that is in effect or proposed for adoption.
5.3 NO MATERIAL ADVERSE CHANGE
No material adverse change shall have occurred prior to the Closing with respect
to the assets, business, prospects, financial condition or results of operations
of the Group Companies taken as a whole.
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6. CONDITION PRECEDENT TO THE SELLERS' OBLIGATION TO CLOSE
The obligation of the Sellers to sell the Shares and take the other actions
required to be taken by the Sellers at the Closing is subject to the
satisfaction, at or prior to the Closing, of the following condition (which may
be waived by the Sellers, in whole or in part):
6.1 THE PURCHASER'S PERFORMANCE
All of the covenants and obligations that the Purchaser is required to perform
or to comply with pursuant to this Agreement at or prior to the Closing must
have been performed and complied with in all respects material to the
transactions contemplated hereby.
7. UNWINDING
7.1 UNWINDING CONDITIONS
This Agreement may be unwound (a) by mutual consent of the Sellers and the
Purchaser, (b) by either of the Sellers or the Purchaser, upon five business
days prior written notice, if the conditions set forth in Section 4, 5 and 6 of
this Agreement are not met within 120 days after the date of signing of this
Agreement and the Escrow Account Agreement provided however, that neither the
Sellers nor the Purchaser may demand the unwinding pursuant to (b) above if the
non fulfilment of the conditions in Sections 4, 5 and 6 results directly or
indirectly from breach of any provision of this Agreement or the Escrow Account
Agreement by the Party which desires to unwind this Agreement.
8. GENERAL PROVISIONS
8.1 EXPENSES; ADVISORS' ADVICE
Except as otherwise expressly provided in this Agreement, each Party to this
Agreement shall bear its respective expenses incurred in connection with the
preparation, execution and performance of this Agreement and the transactions
contemplated hereby, including all fees and expenses of agents, representatives,
counsel and accountants.
Each Party is responsible for obtaining tax, accounting and other advice
relating to the transactions contemplated by this Agreement, including, without
limitation, advice regarding the structuring of such transactions, from its own
advisors, and, if one Party shares the advice of its advisors with the other
Parties, such Party shall not have any liability of any kind or nature to such
other Parties with respect to such advice.
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8.2 PUBLIC ANNOUNCEMENTS
The Parties have agreed to the wording of an initial press release disclosing
this Agreement and the transactions contemplated hereby.
8.3 CONFIDENTIALITY
The Sellers and the Purchaser shall maintain in confidence, and shall cause
their respective directors, officers, employees, agents and advisors to maintain
in confidence, any written, oral or other information obtained in confidence
from the other Party or the Company in connection with this Agreement or the
transactions contemplated hereby, unless (a) such information is already known
to such Party or to others not bound by a duty of confidentiality or such
information becomes publicly available through no fault of such Party, (b) the
use of such information is necessary or appropriate in making any filing or
obtaining any consent or approval required for the consummation of the
transactions contemplated hereby, or (c) the furnishing or use of such
information is required by law, regulation or legal process.
If the transactions contemplated hereby are not consummated, each Party shall
return or destroy as much of such written information as the other Party may
reasonably request.
8.4 NOTICES
All notices, requests, demands, and other communications required or permitted
by this Agreement shall be in writing in the English language and (a) delivered
by messenger; (b) transmitted by telecopier; or (c) delivered by a reputable
international courier service, with courier charges paid or payable by the
sender. All such notices and other communications shall be addressed as follows
to the respective parties set forth below or to such other address as any such
party may hereafter specify in writing:
Notices to the Sellers shall be addressed to:
Xxxx X. Xxxxxx XxXxxx,
Xxxxxxx. 0X,
0000 Xxxxxxx,
Xxxxxx
with a copy to:
Xxxxxxx Xxxxxxxx
Xxxxx Xxxxxxxxxxxx xxx
XX Xxx 000
0000 Xxxxxxxxx, Xxxxxx
Fax: 00 00 00 00
Tel: 00 00 00 00
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Notices to the Purchaser shall be addressed to:
Gulf Offshore Norge AS c/o Gulf Offshore N.S. Ltd,
000-000 Xxxxxx Xxxxxx,
Xxxxxxxx, XX00 XXX, XX
Attention: Managing Director
Fax: (01224) 336039
Tel: (01224) 336030
with a copy to:
Wiersholm, Mellbye & Bech
XX Xxx 0000 Xxxx
0000 Xxxx, Xxxxxx
Attention: Torkel Ern0
Fax: 000 000 00
Tel: 000 000 00
Notices shall be deemed to have been given (i) on the day of delivery (evidenced
by a signed receipt) if delivered by messenger; (ii) two business days after it
has been delivered to a reputable international courier service; or (iii) on the
day sent by telecopy if the transmission is confirmed by the sender's
telecopier.
8.5 GOVERNING LAW
This Agreement shall be governed by, and construed in accordance with, the laws
of Norway.
8.6 ASSIGNMENTS, SUCCESSORS AND NO THIRD PARTY RIGHTS
No Party may assign any of its rights under this Agreement without the prior
written consent of the other Parties, except that the Purchaser may assign any
of its rights under this Agreement to any Subsidiary or Shareholders of the
Purchaser. The Purchaser shall subsequent to any such assignment remain liable
for any and all obligations under this Agreement. Subject to the preceding
sentence, this Agreement shall apply to, be binding in all respects upon, and
inure to the benefit of the successors and permitted assigns of the Parties.
8.7 HEADINGS; CONSTRUCTION
The headings of Sections in this Agreement are provided for convenience only and
shall not affect its construction or interpretation. All words used in this
Agreement shall be construed to be of such gender or number as the circumstances
require.
The Parties claims and liabilities based on this Agreement shall be transferred
to the Parties possible judicial successors.
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This Agreement is signed in 2 original copies of which the Parties retain one
copy each.
Oslo, ___ May 2001
Signed for and on behalf of all of the Sellers:
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Signed for and on behalf of the Purchaser:
We hereby irrevocably and unconditionally guarantee the performance of the
Purchaser under this Agreement
GulfMark Offshore, Inc.
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