SEACOR SMIT INC.
0000 XXXXXX XX XXX XXXXXXXX
XXX XXXX, XX 00000
Exhibit 10.4
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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 among
SEACOR SMIT Inc., the Minority Sellers and Xxxxx
Xxxxxxxx, as Representative of the Minority Sellers
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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 "Minority Sellers
Stock Purchase Agreement"), by and among SEACOR SMIT Inc. (the "Purchaser"), the
persons listed on Exhibit A thereto (the "Minority Sellers") and you, as
representative of the Minority Sellers (the "Representative"). Capitalized terms
used herein but not otherwise defined herein shall have the meanings ascribed to
them in the Minority Sellers Stock Purchase Agreement.
For good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, we agree that the Minority Sellers
Stock Purchase Agreement is hereby amended as follows:
1. Section 2.2 of the Minority Stock Purchase Agreement shall
be amended to read in its entirety as follows:
"(b) On the Closing Date, the Purchaser shall pay to the
Sellers the sum of (A) $23,665,957.00 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 $227,582.22),
which sum is equal to $23,893,539.22 (the "Estimated Purchase Price"),
by delivering to the Representative certified or bank cashier's checks
in New York Clearing House Funds, payable to the order of the Sellers
or, at the Representative's option, by wire transfer of immediately
available funds into an account or accounts designated by the
Representative in writing not later than three Business Days prior to
the Closing Date.
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 Sellers of every
Xx. Xxxxx Xxxxxxxx
February 23, 2001
Page 2 of 5
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 selected by the Representative and the
Purchaser. The fees and expenses of such accounting firm shall be borne
equally by the Sellers and the Purchaser."
4. The following Section 9.4(i) is hereby added to the
Minority Sellers Stock Purchase Agreement:
(i) Section 388(h)(10) Election.
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(i) At the election of the Purchaser, each 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, Gilco, GCB, and/or C&C, as applicable (an "Election") provided
that (i) the Purchaser notifies Sellers' 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 Sellers' 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 Sellers' Accountants with a statement for
each Seller setting forth the Election Tax Cost (including the
applicable tax calculations for such Seller), and (iv) Sellers'
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) each Seller shall execute the Election Forms;
(B) the Purchaser shall pay to each Seller his, her
or its Election Tax Cost; and
(C) the Purchaser shall deliver to the Sellers an
agreement pursuant to which (1) the Purchaser agrees to indemnify each
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 such Seller whole (i.e.,
that the Seller is in a worse economic position than he, she or it
would have been if the Election had not been made) and (2) each Seller
agrees that, if the Election is determined to be invalid, such Seller
Xx. Xxxxx Xxxxxxxx
February 23, 2001
Page 3 of 5
shall refund to the Purchaser the amount, if any, by which the amount
paid by the Purchaser to such Seller pursuant to clause (B) above
exceeds the amount of Taxes ultimately determined to be payable by such
Seller and costs incurred by such 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, such Seller shall not be required to pay all or such portion
of such excess to the Purchaser until such Seller has received a refund
therefor; it being further understood and agreed that each Seller will
use reasonable commercial efforts, at Purchaser's cost and expense, to
obtain any Tax refunds available).
(ii) The term "Election Tax Cost" of a Seller shall mean, with
respect to each of the G&B Shares, the Gilco Shares, the GCB Shares and
the C&C 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 such Seller with respect to the sale of the G&B
Shares, the Gilco Shares, the GCB Shares, and the C&C 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 such Seller with respect to the sale of the G&B Shares, the
Gilco Shares, the GCB Shares, and the C&C 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
each Seller is grossed up to include additional federal income Taxes
and Louisiana state income Taxes resulting from the receipt of Election
Tax Cost.
(iii) The Purchaser shall reimburse the Sellers for all
reasonable out-of-pocket expenses incurred in connection with an
Election, including, without limitation, the reasonable fees and
expenses of Sellers' Accountants.
5. We hereby agree that, except as amended hereby, the
Minority Sellers 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.
Xx. Xxxxx Xxxxxxxx
February 23, 2001
Page 4 of 5
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:
THE REPRESENTATIVE
/s/ Xxxxx Xxxxxxxx
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Xxxxx Xxxxxxxx, as the Representative
THE SELLERS:
/s/ Xxxxxxx Xxxxxxxx
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Xxxxxxx Xxxxxxxx
/s/ Xxxxx X. Xxxxxxx
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Xxxxx X. Xxxxxxx
/s/ Xxxxx Xxxxxxxx
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Xxxxx Xxxxxxxx
XXXXX X. XXXXXXX CHILDREN'S TRUST
By: /s/ Xxxxx X. Xxxxxxx
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Xxxxx X. Xxxxxxx
Trustee
Xx. Xxxxx Xxxxxxxx
February 23, 2001
Page 5 of 5
THE XXX XXXX XXXXXXXX TRUST
By: /s/ Xxxxx Xxxxxxxx
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Xxxxx X. Xxxxxxxx
Trustee
THE XXXXX XXXX XXXXXXXX TRUST
By: /s/ Xxxxx Xxxxxxxx
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Xxxxx X. Xxxxxxxx
Trustee
THE XXXXXX XXXXXXX XXXXXXXX
TRUST
By: /s/ Xxxxx Xxxxxxxx
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Xxxxx X. Xxxxxxxx
Trustee