Exhibit 2
Execution Copy
SECURITIES PURCHASE AGREEMENT
THIS SECURITIES PURCHASE AGREEMENT (this "Agreement"), dated
as of June 13, 2002, is entered into by and among Xxxxxx, Xxxxxx & Company,
L.P., a Delaware limited partnership ("Xxxxxx"), in its capacity as investment
advisor to the holders (each a "Holder" and collectively, the "Holders") of
certain investment accounts (the account or portion thereof managed by Xxxxxx,
the "Managed Accounts"), and each of the purchasers listed on Schedule 1 hereto
(each, a "Purchaser" and collectively, the "Purchasers").
WHEREAS, as of the date hereof, the Managed Accounts contain
an aggregate of (a) 5,256,122 shares (together with any shares of Common Stock
received upon exercise, after the date hereof, of the Class A Warrants and the
Note Warrants, each as defined below, the "Shares") of Common Stock, par value
of $0.01 per share (the "Common Stock"), of Seabulk International, Inc., a
Delaware corporation (the "Company"), (b) 130,602 Common Stock Purchase Warrants
(the "Note Warrants"), and (c) 49,915 Class A Common Stock Purchase Warrants
(the "Class A Warrants" and, together with the Shares and the Note Warrants, the
"Equity Securities"), and, as a result of Xxxxxx being an investment advisor to
the Holders, Xxxxxx may be deemed to beneficially own (as determined pursuant to
Rule 13d-3 as promulgated under the Exchange Act of 1934, as amended) the Equity
Securities;
WHEREAS, on the date hereof, but prior to the execution of
this Agreement, the Purchasers and the Company entered into a Stock Purchase
Agreement (the "Company Purchase Agreement"), pursuant to which the Company
agreed to issue and sell shares of Common Stock to the Purchasers upon the terms
and subject to the conditions set forth therein (the "Company Purchase"); and
WHEREAS, as of the date of this Agreement, approximately 90
Managed Accounts for Holders having investment management contracts with Xxxxxx
contain Equity Securities, which, in a limited number of situations, may include
multiple Managed Accounts of a Holder or related Holders.
NOW, THEREFORE, in consideration of the mutual promises
contained in this Agreement and other valuable consideration, the receipt of
which is acknowledged, the parties to this Agreement agree as follows:
ARTICLE I
PURCHASE AND SALE OF SECURITIES
1.1 Purchase and Sale. Subject to the terms and conditions of
this Agreement and on the basis of the representations and warranties set forth
herein, at the Closing (as hereinafter defined), Xxxxxx, in its capacity as
investment advisor to the Holders, shall Cause (as defined below) the Holders to
sell to each Purchaser, and each Purchaser (severally and not jointly) shall
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purchase from the Holders, (a) the number of Shares set forth with respect to
such Purchaser on Schedule 1 hereto at a purchase price of $8.00 per share, (b)
the number of Note Warrants set forth with respect to such Purchaser on Schedule
1 hereto at a purchase price of $7.99 per Note Warrant, and (c) the number of
Class A Warrants set forth with respect to such Purchaser on Schedule 1 hereto
at a purchase price of $0.01 per Class A Warrant; provided, however, that the
aggregate number of Shares, Note Warrants or Class A Warrants so sold and
purchased shall not exceed the Deliverable (as defined below) number of Shares,
Note Warrants or Class A Warrants, as the case may be. In the event that the
Deliverable number of securities of any class of the Equity Securities is less
than the aggregate number for such class set forth on Schedule 1 hereto, the
amounts of such class to be purchased by each Purchaser shall be deemed to be
reduced pro rata such that the aggregate of such amounts will equal the
Deliverable number. The "Deliverable" number of Shares, Note Warrants or Class A
Warrants shall be the respective number of such securities which Xxxxxx Causes
the Holders to deliver at the Closing. With respect to the obligations of Xxxxxx
pursuant to this Agreement, "Cause" shall mean, subject only to the express
limitations of Xxxxxx'x authority set forth on Schedule 2 hereto, the taking or
causation of such action, whether through custodians and other third parties or
otherwise (it being understood that Xxxxxx does not supervise or control such
custodians and other third parties).
1.2 Closing.
(a) The purchases and sales of the Equity Securities shall
occur (the "Closing") concurrently with or immediately following the closing of
the Company Purchase (the date on which such Closing occurs is referred to as
the "Closing Date"), at the offices of Weil, Gotshal & Xxxxxx LLP, located at
000 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, or at such other place as the
parties hereto shall agree in writing.
(b) At the Closing, Xxxxxx shall Cause to be delivered to
the Purchasers, against payment of the purchase price therefor, certificates or
appropriate book-entry credits for the Equity Securities to be purchased by the
Purchasers pursuant to Section 1.1, together with, in the case of any
certificates, appropriate stock powers (or otherwise properly endorsed in blank
for transfer) and appropriate warrant assignments. Upon payment by the
Purchasers of the purchase price in accordance with Section 1.1 hereof, and upon
transfer of the shares to the Purchasers, the Purchasers shall be entitled to
the benefit of the applicable warranties set forth in Sections 8-108 and 8-109
of the Uniform Commercial Code as then in effect, as the case may be.
(c) At the Closing, each Purchaser shall deliver to Xxxxxx
by wire transfer or book-entry transfer of immediately available funds to such
bank or DTC accounts for the Holders, as Xxxxxx shall designate in writing prior
to the Closing Date, respective amounts equaling the aggregate purchase price
for the Equity Securities being purchased by such Purchaser.
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ARTICLE II
REPRESENTATIONS AND WARRANTIES OF XXXXXX
Xxxxxx hereby represents and warrants to each Purchaser
severally on the date hereof and as of the Closing Date as follows:
2.1 Organization. Xxxxxx is a limited partnership duly
organized, validly existing and in good standing under the laws of the State of
Delaware.
2.2 Authorization. Xxxxxx has the requisite authority to execute
and deliver this Agreement and to Cause the performance of the transactions
contemplated hereby to be performed by it. The execution and delivery by Xxxxxx
of this Agreement and the performance by it of all transactions contemplated
hereby to be performed by it have been duly authorized by action of its special
general partner, Xxxxxx, Xxxxxx Voting, Inc. and by all other necessary action
on the part of Xxxxxx. This Agreement has been duly executed and delivered by
Xxxxxx and, assuming the due execution and delivery of this Agreement by the
Purchasers, constitutes a valid and binding obligation of Xxxxxx enforceable
against it in accordance with its terms.
2.3 No Conflicts. The execution and delivery of this Agreement
by Xxxxxx does not, and neither the performance by Xxxxxx of the transactions
contemplated hereby to be performed by it, nor the consummation of the
transactions contemplated hereby, will (i) conflict with the partnership
agreement of Xxxxxx, (ii) violate any order, judgment, decree, writ or
injunction ("Order") of any federal, state or foreign court or governmental
agency, authority or body or any instrumentality or political subdivision
thereof ("Governmental Entity"), (iii) subject to Schedule 2, conflict with,
result in a violation or breach of, or constitute a default under, any agreement
to which Xxxxxx is a party or by which any of its assets are bound, or (iv)
subject to Schedule 2, violate any domestic or foreign law, statute, rule or
regulation ("Law").
2.4 Status of Securities. The Equity Securities constitute all
equity securities of the Company owned beneficially, within the meaning of Rule
13d-3 ("Rule 13d-3") promulgated under the Securities Exchange Act of 1934, as
amended, or of record by Xxxxxx or the Managed Accounts. Xxxxxx has the power to
Cause the disposition and voting of all of the Equity Securities. As made as of
Closing Date, representations and warranties made in this Section 2.4 relate
solely to shares which are Deliverable.
2.5 Agreements Related to the Securities. With the exception of
the Registration Rights Agreement described in Section 4.5 hereof, which
agreement will be terminated in accordance with Section 4.5 hereof on the
Closing Date, Xxxxxx for itself or for the Holders is not party to any
stockholders' agreements, voting trusts, proxies or other agreements or
understandings specifically with respect to the Equity Securities.
2.6 Broker's or Finder's Fees. No agent, broker, person or firm
acting on behalf of Xxxxxx is, or will be, entitled to any commission or
broker's or finder's fees from any Purchaser, or from any person or entity
controlling, controlled by or under common control with any Purchaser, in
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connection with any of the transactions contemplated by this Agreement.
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF EACH PURCHASER
Each of the Purchasers severally as to itself only, and not
jointly, hereby represents and warrants to Xxxxxx on the date hereof and as of
the Closing Date as follows:
3.1 Organization. Such Purchaser is duly organized, validly
existing and in good standing under the laws of its jurisdiction of
organization.
3.2 Authorization. Such Purchaser has the requisite power to
execute and deliver this Agreement and to perform the transactions contemplated
hereby to be performed by it. The execution and delivery by such Purchaser of
this Agreement and the performance by it of the transactions contemplated hereby
to be performed by it have been duly authorized by all necessary action on the
part of such Purchaser. This Agreement has been duly executed and delivered by
such Purchaser and, assuming the due execution and delivery of this Agreement by
Xxxxxx and each other Purchaser, constitutes a valid and binding obligation of
such Purchaser enforceable against each such Purchaser in accordance with its
terms.
3.3 No Conflicts. The execution and delivery of this Agreement
by such Purchaser does not, and neither the performance by such Purchaser of the
transactions contemplated hereby to be performed by it, nor the consummation of
the transactions contemplated hereby, will (i) conflict with the organizational
documents of such Purchaser, (ii) violate any Order, (iii) conflict with, result
in a violation or breach of, or constitute a default under, any agreement to
which such Purchaser is a party or by which any of its assets are bound, or (iv)
violate any Law.
3.4 Financing. Such Purchaser will have on the Closing Date
sufficient funds to purchase the Equity Securities set forth with respect to
such Purchaser on Schedule 1.
3.5 Knowledge. Such Purchaser understands that except for
information which is publicly available, Xxxxxx and the Holders do not regularly
receive information directly from the Company. The Purchasers have not sought or
obtained any information from Xxxxxx or any Holder regarding the Company or the
Equity Securities and are not relying upon any statement by Xxxxxx or any Holder
concerning the Company or the Equity Securities.
3.6 Consents and Approvals. Except for (a) filings by such
Purchaser, if any, required by the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act
of 1974, as amended, and applicable rules and regulations and the expiration or
termination of the applicable waiting period with respect thereto, (b) the
Ruling (as defined in the Company Purchase Agreement) and (c) applicable
filings, if any, pursuant to the Exchange Act, no consent, approval, waiver,
order, or authorization of, or registration, declaration, or filing with, or
notice to,
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any Governmental Entity is required to be obtained or made by such Purchaser in
connection with the execution and delivery of this Agreement by such Purchaser,
the performance by such Purchaser of the transactions contemplated hereby to be
performed by it, or the consummation of the transactions contemplated hereby,
other than those already obtained.
3.7 Securities Law Matters. Such Purchaser understands and
acknowledges that the Equity Securities have not been registered under the
Securities Act of 1933, as amended (the "Securities Act"), or the securities
laws of any state or foreign jurisdiction and, unless so registered, may not be
offered, sold, transferred, or otherwise disposed of except pursuant to an
exemption from, or in a transaction not subject to, the registration
requirements of the Securities Act and any applicable securities laws of any
state or foreign jurisdiction. Such Purchaser further understands and
acknowledges that the Holders may be an "affiliate" of the Company as that term
is defined and used in Rule 144 under the Securities Act. Such Purchaser is
acquiring the Equity Securities for investment, and not with a view to, or for
sale in connection with, any distribution thereof in contravention of applicable
securities laws.
ARTICLE IV
COVENANTS
4.1 Agreement to Vote. Xxxxxx agrees (i) to Cause the voting of
all Shares in favor of the Company Purchase and the Charter Amendment (in
substantially the form attached as Schedule 3 hereto) (the "Approved Matters")
at any meeting or meetings of the stockholders of the Company, and at any
adjournment thereof, at or by which the Approved Matters are submitted for the
vote of the stockholders of the Company and (ii) to Cause the voting of all
Shares against any issuance of shares of capital stock of the Company, merger,
consolidation, sale of assets, reorganization, recapitalization, charter or
bylaw amendment, plan of reorganization or plan of liquidation or take any other
action relating to the Company or any of its subsidiaries, the consummation of
which or otherwise would either frustrate the purposes of, or prevent or delay
the consummation of, the Approved Matters.
4.2 Restrictions.
(a) Xxxxxx agrees that it will not, directly or indirectly
through any officer, director, employee, representative, agent, affiliate or
otherwise (i) offer to sell, sell, transfer, pledge, assign or otherwise dispose
of, including by gift (collectively, "Transfer"), or enter into any contract,
option or other arrangement with respect to the Transfer of the Equity
Securities, other than to the Purchasers, (ii) enter into any voting
arrangement, whether by proxy, voting agreement, voting trust or otherwise
(except the voting agreement with the Purchasers set forth in this Agreement),
(iii) exercise the Note Warrants or the Class A Warrants, or (iv) have any
discussion with any third party (other than the Purchasers or the Holders
following the public announcement of the transactions contemplated by this
Agreement) with respect to, or engage in any negotiations concerning, any of the
foregoing; provided, however, that Xxxxxx may have such discussions and
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negotiations following an unsolicited bona fide written Acquisition Proposal (as
defined in the Company Purchase Agreement) made to the Company if and only to
the extent that the Company has discussions or provides non-public information
in connection with such an Acquisition Proposal in compliance with the terms of
the Company Purchase Agreement. Xxxxxx shall immediately cease and cause to be
terminated any existing discussions or negotiations with any third party (other
than the Purchasers and the Company) conducted heretofore with respect to any of
the foregoing.
(b) The authority of Xxxxxx to act (and to refrain from
acting) under Section 4.2(a) above on behalf of the Holders is subject to the
disclosures set forth in Schedule 2 to this Agreement. Notwithstanding anything
to the contrary contained herein or in Schedule 2 hereto (other than as
expressly permitted by the proviso in Section 4.2(a) above or as described in
Section 4.2(c) below), Xxxxxx shall not under any circumstance or in any way,
directly or indirectly through any officer, director, employee, representative,
affiliate, agent or otherwise, (i) initiate, solicit or encourage the initiation
of (including by way of furnishing information) any inquiry, offer or proposal
with respect to any Transfer of any Equity Securities (other than to the
Purchasers pursuant to this Agreement) or to vote any Shares against the Company
Purchase or the Charter Amendment, (ii) solicit or initiate discussions with any
person on entity (including, but not limited to, any Holder or fiduciary of a
Managed Account other than under Schedule 2, C(a)(ii)) to Transfer any Equity
Securities other than to the Purchasers or to vote any Shares against the
Company Purchase or the Charter Amendment, or (iii) otherwise initiate any
matter referred to in Section 4.2(a) above.
(c) Xxxxxx shall notify the Purchasers orally and in writing
promptly (but in no event later than five days) after receipt of any inquiry,
offer or proposal with respect to any Transfer of any Equity Securities (other
than to the Purchasers or to a Holder under Schedule 2, C(a)(ii)) or voting any
Shares other than as contemplated by Section 4.1 hereof which would reasonably
be expected to result in the Transfer of any Equity Securities (other than to
the Purchasers or to a Holder under Schedule 2, C(a)(ii)) or voting any Shares
other than as contemplated by Section 4.1 hereof. Such notice shall indicate the
material terms of any such inquiry, offer or proposal. Xxxxxx shall keep the
Purchasers informed, on a current basis, of any material changes or
modifications in the status or terms of any such inquiry, offer or proposal. In
the event that Xxxxxx determines, in good faith, it is legally required to
Transfer any Equity Securities pursuant to paragraphs A and C on Schedule 2,
Xxxxxx shall notify the Purchasers orally and in writing promptly (but in no
event later than three days after such determination and 72 hours prior to any
Transfer) of such action. Such notice shall (i) indicate the identity of the
person or entity acquiring such Equity Securities and the proposed terms of such
acquisition, (ii) fairly describe the basis for Xxxxxx determining it is legally
required to effect such Transfer pursuant to Schedule 2, and (iii) include
copies of any written documentation proposed to effect such Transfer.
4.3 Best Efforts. Xxxxxx hereby certifies its intention to use
its best efforts, subject to and consistent with its fiduciary duties as
disclosed in paragraph C of Schedule 2 hereto, to support the Company Purchase
and cause the Holders of Managed Accounts to support the Company Purchase, in
each case by voting in favor of the Approved Matters and selling Equity
Securities to the
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Purchasers in accordance with the terms of this Agreement. In furtherance of the
foregoing, if requested or required by a Holder of a Managed Account to advise
such Holder with respect to voting any Equity Securities on any Approved Matters
or with respect to the disposition or sale of Equity Securities pursuant to the
terms hereof, Xxxxxx shall provide appropriate information with respect to such
Approved Matters and the terms of this Agreement and counsel such Holder that it
vote in favor of the Approved Matters and sell or dispose, or refrain from
selling or disposing, of Equity Securities pursuant to the terms hereof, as the
case may be, subject to the fiduciary duties owed to the Holders as described in
paragraph C of Schedule 2 hereto.
4.4 Further Assurances. Xxxxxx shall take all such other actions
as may be reasonably necessary to consummate the transactions contemplated by
this Agreement.
4.5 Termination of Registration Rights Agreement. Upon the
Closing, the Registration Rights Agreement by and between Xxxxxx and the Company
dated December 15, 1999 (the "Registration Rights Agreement") will terminate and
be of no further force or effect.
4.6 Confidentiality.
(a) Xxxxxx agrees that, for a period of two years from the
date hereof, neither it nor Xxxxxx Voting shall at any time disclose in any
manner or for any reason, without the Purchasers prior written consent, any
confidential or proprietary information concerning the Purchasers or the
Transactions (as defined in the Company Purchase Agreement), other than
information that is or becomes ascertainable from public or published
information, except as a result of disclosure by Xxxxxx or its affiliates
("Confidential Information"), unless disclosure of Confidential Information is
required by applicable Law or inquiry by any Governmental Entity and subject
always to Xxxxxx ability to have customary communications with the Holders of
the Managed Accounts. Xxxxxx or Xxxxxx Voting may disclose Confidential
Information to its respective directors, officers, employees, affiliates, agents
or representatives who need to know such information for the purpose of
evaluating the transactions contemplated by this Agreement on behalf of Xxxxxx
or Xxxxxx Voting and then only to the extent necessary to permit such persons to
assist Xxxxxx or Xxxxxx Voting in evaluating such transactions (it being
understood that such persons shall be informed by Xxxxxx or Xxxxxx Voting of the
confidential nature of such information and shall be directed by Xxxxxx or
Xxxxxx Voting, and shall each expressly agree, to treat such information
confidential in accordance with this Section 4.6(a)).
(b) Each Purchaser agrees that, for a period of two years
from the date hereof, it shall not at any time disclose in any manner or for any
reason, without Xxxxxx'x prior written consent, any confidential or proprietary
information concerning Xxxxxx, Xxxxxx Voting, any Holder or any Managed Account
obtained in the negotiation of this Agreement or the consummation of the
transactions contemplated hereby, other than information that is or becomes
ascertainable from public or published information, except as a result of
disclosure by any Purchaser or any of its respective affiliates ("Xxxxxx
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Confidential Information"), unless disclosure of Xxxxxx Confidential Information
is required by applicable Law or inquiry by any Governmental Entity. Any
Purchaser may disclose Xxxxxx Confidential Information to any of its respective
directors, officers, employees, affiliates, agents or representatives who need
to know such information for the purpose of evaluating the transactions
contemplated by this Agreement and then only to the extent necessary to permit
such persons to assist such Purchaser in evaluating such transactions (it being
understood that such persons shall be informed by such Purchaser of the
confidential nature of such information and shall be directed by such Purchaser,
and shall expressly agree, to treat such information confidential in accordance
with this Section 4.6(b)).
ARTICLE V
CONDITIONS TO CLOSING
5.1 Conditions to Obligation of Each Purchaser. The
obligation of each Purchaser to purchase the Equity Securities to be purchased
by it hereunder shall be subject to the satisfaction or waiver, on or prior to
the Closing Date of the following conditions:
(a) The representations and warranties of Xxxxxx contained
herein shall be true and correct in all material respects on the date hereof and
on and as of the Closing Date as though made on and as of such date.
(b) Xxxxxx shall have complied with all of its covenants,
agreements and obligations contained herein.
(c) Except as relates to compliance with the requirements of
46 U.S.C. App.(S) 883 and 46 U.S.C.(S) 12102 for the ownership and operation of
vessels in the United States coastwise trade and the related provisions of the
Company's certificate of incorporation regarding such matters with respect to
the acquisition, ownership, operation or control of the Company by affiliates of
a Purchaser other than a Permitted Transferee (as defined in the Company
Purchase Agreement), and assuming the Ruling is granted, there shall not be in
effect any provision of any applicable law or any injunction, order or decree of
any Governmental Entity, or any pending suit, action, arbitration or proceeding,
(i) seeking to prohibit or limit the acquisition, ownership, operation or
control by any Purchaser or any of its affiliates of any Equity Securities, or
to compel any Purchaser or any if its affiliates to dispose of any Common Stock,
(ii) seeking to impose limitations on the ability of any Purchaser or any of its
affiliates to acquire or hold, or exercise full rights of ownership of, any
Equity Securities, or (iii) challenging or seeking to restrain or prohibit the
Closing or any of the transactions contemplated hereby or by the Company
Purchase Agreement.
(d) All conditions to the obligations of the Purchasers
under the Company Purchase Agreement shall have been satisfied and the Company
Purchase shall have been consummated.
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5.2 Conditions to Obligation of Xxxxxx. The obligation of
Xxxxxx to sell the Equity Securities to the Purchasers shall be subject to the
satisfaction or waiver, on or prior to the Closing Date, of the following
conditions:
(a) The representations and warranties of each Purchaser
contained herein shall be true and correct in all material respects on the date
hereof and on and as of the Closing Date as though made on as of such date.
(b) Each Purchaser shall have performed in all material
respects all obligations and agreements to be performed and complied with by
such Purchaser on the Closing Date prior to the Closing.
(c) The Ruling (as defined in the Company Purchase
Agreement) shall have been obtained and shall be in full force and effect.
ARTICLE VI
TERMINATION
6.1 Termination. This Agreement may be terminated as
follows:
(a) at any time prior to the Closing by mutual written
agreement of Xxxxxx and the Purchasers;
(b) by the Purchasers, if there shall have been a material
breach of any of the representations, warranties, covenants or other obligations
of Xxxxxx set forth in this Agreement, which breach is not reasonably capable of
being cured or, if reasonably capable of being cured, is not cured within ten
(10) days following Xxxxxx'x receipt of notice of such breach;
(c) by Xxxxxx, if there shall have been a material breach of
any of the representations, warranties, covenants or other obligations of any
Purchaser set forth in this Agreement, which breach is not reasonably capable of
being cured or, if reasonably capable of being cured, is not cured within ten
(10) days following the Purchasers' receipt of notice of such breach;
(d) by either Xxxxxx or the Purchasers, at any time after
October 15, 2002 if the Closing shall not have occurred on or prior to such
date; provided that the right to terminate this Agreement under this Section
6.1(d) shall not be available to any party whose breach of, or failure to
fulfill any obligation under, this Agreement was the cause of or resulted in the
failure of the Closing to occur on or before such date; and provided further
that the right of the Purchasers to terminate this Agreement pursuant to this
Section 6.1(d) shall not be available to the Purchasers in the event that Xxxxxx
has Caused the Shares to be voted for the Approved Matters and all of the
conditions set forth in Section 5.1 above shall have otherwise been satisfied;
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(e) by either the Purchasers or Xxxxxx, in the event of the
termination of the Company Purchase Agreement in accordance with its terms;
(f) by Xxxxxx, if there arises any action, suit or
threatened proceeding against Xxxxxx (for itself or on behalf of a Holder) or
against any officer or director or partner of Xxxxxx (i) challenging or seeking
to restrain or prohibit the consummation of any of the transactions contemplated
by this Agreement or (ii) which would cause any of the transactions contemplated
by this Agreement to be rescinded following consummation; provided that the
right to terminate this Agreement pursuant to this Section 6.1(f) shall not be
available to Xxxxxx if any such action, suit or threatened proceeding was a
result of a breach of, or failure to fulfill any obligation under, this
Agreement by Xxxxxx; and
(g) by either Xxxxxx or the Purchasers, if a Governmental
Entity shall have issued a nonappealable final order, decree or ruling or taken
any other action having the effect of permanently restraining, enjoining or
otherwise prohibiting the transactions contemplated by this Agreement; provided
that the right to terminate this Agreement pursuant to this Section 6.1(g) shall
not be available to any party whose breach of, or failure to fulfill any
obligation under, this Agreement was the cause of, or resulted in, such final
order, decree or ruling.
6.2 Manner and Effect of Termination. In the event of
termination of this Agreement, written notice thereof shall be given to the
other parties specifying the provision hereof pursuant to which such termination
is made. Upon termination, this Agreement shall become null and void and of no
further force or effect, and the parties hereto shall be released from all
future obligations hereunder; provided, however, that this Section 6.2 and
Article VI hereof shall remain in full force and effect and no party shall be
relieved from liability as a result of its breach of this Agreement prior to
such termination.
ARTICLE VII
MISCELLANEOUS
7.1 Notices. All notices, demands, requests, consents,
approvals or other communications (collectively, "Notices") required or
permitted to be given hereunder, or that are given with respect to this
Agreement, shall be in writing and shall be personally delivered by reputable
"next business day" air courier service with charges prepaid, or transmitted by
hand delivery or facsimile, addressed as set forth below, or to such other
address as such party shall have specified most recently by written notice.
Notice shall be deemed given on the date of service or transmission if
personally served or transmitted by facsimile. Notice otherwise sent as provided
herein shall be deemed given on the next business day following delivery of such
notice to a reputable "next business day" air courier service.
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If to Xxxxxx, to:
Xxxxxx, Xxxxxx & Company, L.P.
000 Xxxxxxxxxx Xx., Xxxxx 0000
Xxx Xxxxxxxxx, XX 00000
Attn: Xxxxx Xxxxxxxx, Executive Vice President
and General Counsel
Telephone: (000) 000-0000
Fax: (000) 000-0000
with copies (which shall not constitute notice) to:
Ropes & Xxxx
Xxx Xxxxxxxxxxxxx Xxxxx
Xxxxxx, XX 00000
Attn: Xxxxxxxxxxx X. Xxxx, Esq.
Telephone: (000) 000-0000
Fax: (000) 000-0000
If to the Purchasers, to:
In the case of Nautilus Acquisition, L.P.:
c/o Credit Suisse First Boston Private Equity
00 Xxxxxxx Xxxxxx
Xxx Xxxx XX 00000
Attn: Xxx Xxxxxxxxxx
Telephone: (000) 000-0000
Fax: (212) 538-041
In the case of C/R Marine Domestic Partnership, L.P.,
C/R Marine Non-U.S. Partnership, L.P.
C/R Marine Coinvestment, L.P. or
C/R Marine Coinvestment II, L.P.:
c/o Riverstone Holdings, LLC
000 Xxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
Attn: Xxxx Xxxxxxxxx
Telephone: (000) 000-0000
Fax: (000) 000-0000
with copies (which shall not constitute notice) to:
Weil, Gotshal & Xxxxxx LLP
000 Xxxxx Xxxxxx
Xxx Xxxx, XX 00000
Attn: Xxxxx X. Xxxxxxxx
Telephone: (000) 000-0000
Fax: (000) 000-0000
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7.2 GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY,
INTERPRETED UNDER, AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW
YORK, REGARDLESS OF THE LAWS THAT MIGHT OTHERWISE GOVERN UNDER APPLICABLE
PRINCIPLES OF CONFLICTS OF LAW THEREOF.
7.3 ENFORCEMENT OF AGREEMENT; WAIVER OF JURY TRIAL; ETC.
The parties agree that irreparable damage would occur in the event that any of
the provisions of this Agreement were not performed in accordance with their
specific terms or were otherwise breached. It is accordingly agreed that the
parties shall be entitled to an injunction or injunctions to prevent breaches of
this Agreement and to enforce specifically the terms and provisions of this
Agreement in any court of the United States or any state court, without bond or
other security being required, this being in addition to any other remedy to
which they are entitled at law or in equity. IN ADDITION, EACH OF THE PARTIES
HERETO (A) CONSENTS TO SUBMIT ITSELF TO THE PERSONAL JURISDICTION OF ANY FEDERAL
COURT LOCATED IN THE COMMONWEALTH OF MASSACHUSETTS OR THE STATE OF NEW YORK OR
ANY MASSACHUSETTS OR NEW YORK STATE COURT IN THE EVENT ANY DISPUTE ARISES OUT OF
THIS AGREEMENT OR ANY OF THE TRANSACTIONS CONTEMPLATED HEREBY AND (B) AGREES
THAT IT WILL NOT ATTEMPT TO DENY OR DEFEAT SUCH PERSONAL JURISDICTION BY MOTION
OR OTHER REQUEST FOR LEAVE FROM ANY SUCH COURT. EACH PARTY HEREBY WAIVES TO THE
FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY
JURY IN RESPECT TO ANY LITIGATION DIRECTLY OR INDIRECTLY ARISING OUT OF, UNDER
OR IN CONNECTION WITH THIS AGREEMENT OR ANY TRANSACTION CONTEMPLATED HEREBY.
7.4 Attorneys' Fees. A party in breach of this Agreement
shall, on demand, indemnify and hold harmless the other party for and against
all reasonable out-of-pocket expenses, including legal fees, incurred by such
other party by reason of the enforcement and protection of its rights under this
Agreement. The payment of such expenses is in addition to any other relief to
which such other party may be entitled.
7.5 Entire Agreement. This Agreement (including all
agreements entered into pursuant hereto and all certificates and instruments
delivered pursuant hereto) and the schedules hereto constitute the entire
agreement of the parties with respect to the subject matter hereof and supersede
all prior and contemporaneous agreements, representations, understandings,
negotiations and discussions between the parties, whether oral or written, with
respect to the subject matter hereof.
7.6 Modifications and Amendments. No amendment,
modification or termination of this Agreement shall be binding unless executed
in writing by each party hereto.
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7.7 Waivers and Extensions. Any party to this Agreement may
waive any condition, right, breach or default that such party has the right to
waive, provided that such waiver will not be effective against the waiving party
unless it is in writing, is signed by such party, and specifically refers to
this Agreement. Waivers may be made in advance or after the right waived has
arisen or the breach or default waived has occurred. Any waiver may be
conditional. No waiver of any breach of any agreement or provision herein
contained shall be deemed a waiver of any preceding or succeeding breach thereof
nor of any other agreement or provision herein contained. No waiver or extension
of time for performance of any obligations or acts shall be deemed a waiver or
extension of the time for performance of any other obligations or acts.
7.8 Titles and Headings; Rules of Construction. Titles and
headings of sections of this Agreement are for convenience only and shall not
affect the construction of any provision of this Agreement. Unless the context
otherwise requires: (a) a term has the meaning assigned to it; (b) "or" is not
exclusive; (c) "including" means including without limitation; and (d) words in
the singular include the plural and words in the plural include the singular.
The parties hereto have participated jointly in the negotiation and drafting of
this Agreement and, in the event an ambiguity or question of intent or
interpretation arises, this Agreement shall be construed as jointly drafted by
the parties hereto and no presumption or burden of proof shall arise favoring or
disfavoring any party by virtue of the authorship of any provision of this
Agreement.
7.9 Press Releases and Public Announcements. All public
announcements or public disclosures relating to this Agreement and the
transactions contemplated hereby shall be made only if mutually agreed upon by
Xxxxxx and the Purchasers, except to the extent such disclosure is, in the
opinion of counsel, required by Law or by stock exchange regulation, provided
that Xxxxxx hereby consents to the publication by the Purchasers or their
affiliates of a customary "tombstone" advertisement announcing the transactions
contemplated by this Agreement after the consummation of this Agreement. The
parties intend that there will be a public announcement made upon the execution
of this Agreement and the Company Purchase Agreement, the content of which shall
be mutually agreed upon. Communications between Xxxxxx and the Holders of the
Managed Accounts following the announcement of the transactions contemplated by
this Agreement, consistent with their investment management agreements and with
normal practice, shall not be deemed a breach of this Agreement.
7.10 Assignment; No Third Party Beneficiaries. This
Agreement and the rights, duties and obligations hereunder may not be assigned
or delegated by Xxxxxx without the prior written consent of the Purchasers, and
may not be assigned or delegated by any Purchaser without Xxxxxx'x prior written
consent, except that without such consent this Agreement may be assigned or
delegated, in whole or in part, by any Purchaser (or by any assignee referred to
in this provision) to any Permitted Transferee (as defined in the Company
Purchase Agreement). Except as set forth above, any assignment or delegation of
rights, duties or obligations hereunder made without the prior written consent
of the Purchasers, shall be void and of no effect. This Agreement and the
provisions hereof shall be binding upon and shall inure to the benefit of each
of the
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parties and their respective successors and permitted assigns. This Agreement is
not intended to confer any rights or benefits on any third persons.
7.11 Severability. This Agreement shall be deemed severable,
and the invalidity or unenforceability of any term or provision hereof shall not
affect the validity or enforceability of this Agreement or of any other term or
provision hereof. Furthermore, in lieu of any such invalid or unenforceable term
or provision, the parties hereto intend that there shall be added as a part of
this Agreement a provision as similar in terms to such invalid or unenforceable
provision as may be possible and be valid and enforceable.
7.12 Counterparts. This Agreement may be executed in
counterparts, each of which shall be deemed an original, but all of which taken
together shall constitute one and the same instrument.
7.13 Proxy Statement. The Purchasers shall request that the
Company provide Xxxxxx with all drafts of the Proxy Statement (as defined in the
Company Purchase Agreement) and shall otherwise provide Xxxxxx with all such
drafts provided to the Purchasers, and shall request that the Company provide
Xxxxxx with a reasonable opportunity to review and comment on any portion of
such drafts of such Proxy Statement that expressly relate to Xxxxxx and the
Xxxxxx Purchase.
7.14 Expenses. In the event the Company Requisite Vote (as
defined in the Company Purchase Agreement) is obtained and upon the transfer of
the Deliverable and so long as Xxxxxx is in compliance with this Agreement at
the Closing, the Purchasers agree to pay or reimburse all documented
out-of-pocket legal expenses incurred by Xxxxxx in connection its negotiation
and consummation of this Agreement, up to a maximum of $200,000. Payment or
reimbursement of expenses pursuant to this Section 7.15 shall be made promptly
after receipt of invoices in reasonably sufficient detail with copies of
relevant backup invoices.
[The remainder of this page is intentionally left blank]
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be duly executed, all as of the date first written above.
XXXXXX, XXXXXX & COMPANY, L.P.,
in its capacity as investment advisor to the Holders
By: Xxxxxx, Xxxxxx Voting, Inc., its general partner
By: _______________________________________________
Name:
Title:
By: _______________________________________________
Name:
Title:
NAUTILUS ACQUISITION, L.P.
By: Nautilus Intermediary, L.P., its general partner
By: _______________________________________________
Name:
Title: Authorized Signatory
C/R MARINE DOMESTIC PARTNERSHIP, L.P.
By: C/R Marine GP Corp., its general partner
By: _______________________________________________
Name: Xxxxxx Xxxxxxx
Title: Vice President
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C/R MARINE NON-U.S. PARTNERSHIP, L.P.
By: C/R Marine GP Corp., its general partner
By: _______________________________________________
Name: Xxxxxx Xxxxxxx
Title: Vice President
C/R MARINE COINVESTMENT, L.P.
By: C/R Marine GP Corp., its general partner
By: _______________________________________________
Name: Xxxxxx Xxxxxxx
Title: Vice President
C/R MARINE COINVESTMENT II, L.P.
By: C/R Marine GP Corp., its general partner
By: _______________________________________________
Name: Xxxxxx Xxxxxxx
Title: Vice President
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