ASSET PURCHASE AGREEMENT
by and among
SEACOR HOLDINGS, INC. AND
CERTAIN OF ITS SUBSIDIARIES
and
SMIT INTERNATIONALE N.V. AND
CERTAIN OF ITS SUBSIDIARIES
Dated as of December 19, 1996
TABLE OF CONTENTS
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ARTICLE 1.
DEFINITIONS
Section 1.1. Definitions . . . . . . . . . . . . . . . . . 1
ARTICLE 2.
THE CLOSING
Section 2.1. Closing . . . . . . . . . . . . . . . . . . 11
ARTICLE 3.
SALE OF ASSETS; PURCHASE PRICE; PAYMENT
Section 3.1. Sale of Assets . . . . . . . . . . . . . . 13
Section 3.2. Excluded Assets . . . . . . . . . . . . . . 13
Section 3.3. Assumed Liabilities and Retained
Liabilities . . . . . . . . . . . . . . . . 14
Section 3.4. Purchase Price . . . . . . . . . . . . . . 16
Section 3.5. Allocation of Purchase Price . . . . . . . 17
Section 3.6. Post-Closing Adjustment . . . . . . . . . . 17
Section 3.7. Additional Purchase Price . . . . . . . . . 19
Section 3.8. Investment and Registration Rights
Agreement; Restrictive Endorsement . . . . 24
ARTICLE 4.
REPRESENTATIONS AND WARRANTIES OF THE SELLERS
Section 4.1. Organization . . . . . . . . . . . . . . . 25
Section 4.2. JV Companies . . . . . . . . . . . . . . . 25
Section 4.3. Authority; Enforceable Agreement . . . . . 25
Section 4.4. No Conflicts or Consents . . . . . . . . . 26
Section 4.5. Corporate Documents . . . . . . . . . . . . 26
Section 4.6. Financial Statements; Liabilities . . . . . 27
Section 4.7. [RESERVED] . . . . . . . . . . . . . . . . 28
Section 4.8. Absence of Certain Changes or Events . . . 28
Section 4.9. Contracts . . . . . . . . . . . . . . . . . 29
Section 4.10. Properties and Leases Other than Vessels . 30
Section 4.11. Condition of Assets Other than Vessels . . 31
Section 4.12. Vessels . . . . . . . . . . . . . . . . . . 32
Section 4.13. Suppliers and Customers . . . . . . . . . . 34
Section 4.14. Tax Matters . . . . . . . . . . . . . . . . 34
Section 4.15. Litigation . . . . . . . . . . . . . . . . 35
Section 4.16. Insurance . . . . . . . . . . . . . . . . . 35
Section 4.17. Environmental Compliance . . . . . . . . . 36
Section 4.18. Compliance With Law; Permits . . . . . . . 37
Section 4.19. Interests in Clients, Suppliers, Etc. . . . 37
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Section 4.20.Transactions With Related Parties 38
Section 4.21. Broker's and Finder's Fee . . . . . . . . . 38
ARTICLE 5.
REPRESENTATIONS AND WARRANTIES OF THE PURCHASERS
Section 5.1. Organization . . . . . . . . . . . . . . . 38
Section 5.2. Capitalization . . . . . . . . . . . . . . 39
Section 5.3. Authority; Enforceable Agreements . . . . . 39
Section 5.4. No Conflicts or Consents . . . . . . . . . 40
Section 5.5. Indenture; Enforceability; No Conflicts or
Consents. . . . . . . . . . . . . . . . . . . . . . . . 40
Section 5.6. Corporate Documents . . . . . . . . . . . . 41
Section 5.7. SEC Documents; Financial Statements;
Liabilities . . . . . . . . . . . . . . . . 41
Section 5.8. Absence of Certain Changes or Events . . . 42
Section 5.9. Contracts . . . . . . . . . . . . . . . . . 42
Section 5.10. Litigation . . . . . . . . . . . . . . . . 43
Section 5.11. Legality, etc. of SEACOR Securities . . . . 43
Section 5.12. Broker's and Finder's Fee . . . . . . . . . 44
ARTICLE 6.
DELIVERIES AT CLOSING
Section 6.1. Deliveries by the Sellers . . . . . . . . . 44
Section 6.2. Deliveries by the Purchasers . . . . . . . 45
Section 6.3. Certain Closing Matters . . . . . . . . . . 46
ARTICLE 7.
INDEMNIFICATION AND RELATED MATTERS
Section 7.1. Indemnification . . . . . . . . . . . . . . 47
Section 7.2. Procedures for Indemnification . . . . . . 48
Section 7.3. Certain Limitations on Remedies . . . . . . 49
Section 7.4. Exclusivity . . . . . . . . . . . . . . . . 51
Section 7.5. Survival . . . . . . . . . . . . . . . . . 50
Section 7.6. Confidentiality . . . . . . . . . . . . . . 51
Section 8.1. Non-Competition. . . . . . . . . . . . . . 52
Section 8.2. Nomination of SMIT's Board Designee. . . . 53
Section 8.3. SEACOR Form 8-K Information. . . . . . . . 54
Section 8.4. Offers of Employment . . . . . . . . . . . 54
Section 8.5. Certain Assignments. . . . . . . . . . . . 54
Section 8.6. Certain Guarantees. . . . . . . . . . . . . 55
Section 8.7. Limitation on Representations. . . . . . . 55
Section 8.8. Further Assurances by the Sellers . . . . . 55
ARTICLE 9.
REGULATION S UNDERTAKINGS
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Section 9.1. Compliance with United States Securities
Laws . . . . . . . . . . . . . . . . . . . 56
Section 9.2. Status of Seller . . . . . . . . . . . . . 56
Section 9.3. Restrictions on Resale . . . . . . . . . . 57
Section 9.4. Sales by Sellers in the United States . . . 58
Section 9.5. Prohibition of Certain Trading Transactions 58
ARTICLE 10.
MISCELLANEOUS
Section 10.1. Notices . . . . . . . . . . . . . . . . . . 58
Section 10.2. Governing Law . . . . . . . . . . . . . . . 59
Section 10.3. Counterparts . . . . . . . . . . . . . . . 59
Section 10.4. Interpretation . . . . . . . . . . . . . . 60
Section 10.5. Entire Agreement; Severability . . . . . . 60
Section 10.6. Amendment and Modification . . . . . . . . 60
Section 10.7. Extension; Waiver . . . . . . . . . . . . . 60
Section 10.8. Binding Effect; Benefits . . . . . . . . . 60
Section 10.9. Assignability . . . . . . . . . . . . . . . 61
Section 10.10. Expenses . . . . . . . . . . . . . . . . . 61
Section 10.11. Gender and Certain Definitions . . . . . . 61
EXHIBITS AND SCHEDULES
EXHIBITS
Exhibit A . . . . . . . . . . . SEACOR Subsidiaries
Exhibit B . . . . . . . . . . . SMIT Subsidiaries
Exhibit C . . . . . . . . . . . Sellers' Knowledge
Exhibit D . . . . . . . . . . . Additional Purchase Price Note
Exhibit D-1 . . . . . . . . . . SEACOR Guaranty
Exhibit E . . . . . . . . . . . Investment and Registration Rights
Agreement
Exhibit F . . . . . . . . . . . Assignment and Assumption Agreement
Exhibit G-1 . . . . . . . . . . Management Services Agreement
Exhibit G-2 . . . . . . . . . . Management Services Agreement
Exhibit H . . . . . . . . . . . Salvage and Maritime Contracting
Agreement
Exhibit I . . . . . . . . . . . License Agreement
Exhibit J . . . . . . . . . . . Bareboat Charter Agreement
Exhibit K . . . . . . . . . . . Joint Venture Agreement
SCHEDULES 1
Schedule 3.1 . . . . . . . . . Acquired Assets
Schedule 3.1(a) . . . . . . . . Owned Vessels
Schedule 3.1(a)-1 . . . . . . . Extra Spares
Schedule 3.1(b) . . . . . . . . JV Companies
Schedule 3.1(e) . . . . . . . . Assigned Contracts
Schedule 3.3(a) . . . . . . . . Certain Assumed Liabilities
Schedule 3.5 . . . . . . . . . Allocation of Purchase Price
Schedule 3.8(c) . . . . . . . . Agreed Values
Schedule 4.2(a) . . . . . . . . Interests in JV Companies
Schedule 4.4(a) . . . . . . . . Certain Conflicts
Schedule 4.4(b) . . . . . . . . Consents/Approval Required
Schedule 4.5(a) . . . . . . . . Registered Seats
Schedule 4.5(b) . . . . . . . . JV Agreements
Schedule 4.6 . . . . . . . . . JV Financial Statements
Schedule 4.8 . . . . . . . . . Certain Changes
Schedule 4.9(a) . . . . . . . . Certain Contracts
Schedule 4.9(b) . . . . . . . . Material Contracts
Schedule 4.10(a) . . . . . . . Defects in Title
Schedule 4.12(a) . . . . . . . Vessels and Liens on Vessels
Schedule 4.12(b) . . . . . . . JV Vessels and Liens on JV
.1 All the above Schedules relate to the SMIT Group
unless otherwise indicated.
Schedule 4.12(e) . . . . . . . Certain Defects of Vessel Assets
and XX Xxxxxxxx
Schedule 4.12(f) . . . . . . . Excluded Offshore Vessels
Schedule 4.12(h) . . . . . . . Certain Charters
Schedule 4.13 . . . . . . . . . Suppliers and Customers
Schedule 4.14(c) . . . . . . . Material Tax Elections
Schedule 4.15 . . . . . . . . . Litigation
Schedule 4.16(a) . . . . . . . Insurance Policies
Schedule 4.17(a) . . . . . . . Noncompliance with Environmental
Laws
Schedule 4.17(b) . . . . . . . Environmental Administrative or
Judicial Proceedings
Schedule 4.19 . . . . . . . . . Officers'/Directors' Relationships
with Competitors/Customers of the
SMIT Group
Schedule 4.20(a) . . . . . . . Interested Officers'/Directors'
Transactions
Schedule 4.20(b) . . . . . . . Claims of Certain Officers and
Directors
Schedule 5.8 . . . . . . . . . Certain Changes/Events of the
SEACOR Affiliated Group
Schedule 5.9 . . . . . . . . . Material Contracts of SEACOR
Schedule 5.10 . . . . . . . . . Litigation Involving SEACOR
Schedule 8.4 . . . . . . . . . SEACOR Offers of Employment
ASSET PURCHASE AGREEMENT
ASSET PURCHASE AGREEMENT, dated as of December 19, 1996, by and
among SEACOR Holdings, Inc., a Delaware corporation ("SEACOR"), the
subsidiaries of SEACOR listed on Exhibit A hereto (collectively, the
"SEACOR Subsidiaries" and, together with SEACOR, the "Purchasers"),
SMIT Internationale N.V., a corporation organized under the laws of
The Netherlands ("SMIT"), and the subsidiaries of SMIT listed on
Exhibit B hereto (collectively, the "SMIT Subsidiaries" and, together
with SMIT, the "Sellers").
W I T N E S S E T H:
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WHEREAS, the Sellers desire to sell to the Purchasers, and the
Purchasers desire to purchase from the Sellers, certain offshore
vessels, related assets and interests in joint ventures, in each case
upon the terms and subject to the conditions set forth herein.
NOW, THEREFORE, in consideration of the representations,
warranties and covenants contained herein, the parties, intending to
be legally bound, agree as follows:
ARTICLE 1.
DEFINITIONS
Section 1.1. Definitions. As used in this Agreement, the
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following terms when capitalized have the meanings indicated:
"Acquired Assets" shall have the meaning ascribed to such term in
Section 3.1.
"Additional Purchase Price" shall have the meaning ascribed to
such term in Section 3.4(c).
"Additional Purchase Price Information" shall have the meaning
ascribed to such term in Section 3.7(e)(iii).
"Additional Purchase Price Note" shall have the meaning ascribed
to such term in Section 3.7(e)(ii).
"Affiliate" shall mean, as to any Person, any other Person which,
directly or indirectly, controls, is controlled by or is under common
control with such Person. For the purposes of this
definition, "control" means the possession of the power to direct or
cause the direction of management and policies of such Person, whether
through the ownership of voting securities, by contract or otherwise;
provided, however, that the ownership of 50% of the voting securities
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of any Person does not, in and of itself, constitute control.
"Agreed Rate" shall have the meaning ascribed to such term in
Section 3.7(e)(ii).
"Agreement" shall mean this Asset Purchase Agreement, including
the Schedules and Exhibits hereto, all as amended or otherwise
modified from time to time.
"Applicable Percentage" shall have the meaning ascribed to such
term in Section 3.7(g).
"Assigned Contracts" shall have the meaning ascribed to such term
in Section 3.1(e).
"Assignment and Assumption Agreement" shall have the meaning
ascribed to such term in Section 6.1(c).
"Assumed Liabilities" shall have the meaning ascribed to such
term in Section 3.3.
"Average SMIT EBITDA" shall have the meaning ascribed to such
term in Section 3.7(d).
"Bareboat Charter Agreement" shall have the meaning ascribed to
such term in Section 6.1(i).
"Business" shall mean the business of owning or operating the
Acquired Assets in connection with Offshore Vessel Services.
"Business Day" shall mean a day other than a Saturday, a Sunday
or a day on which national banks in the United States or The
Netherlands or the NYSE is closed.
"Chilean Closing" shall have the meaning ascribed to such term in
Section 6.3(c).
"Chilean Closing Date" shall mean the first Business Day in 1997
on which commercial banks in Chile are open for business.
"Closing" shall have the meaning ascribed to such term in Section
2.1(a).
"Closing Balance Sheet" shall have the meaning ascribed to such
term in Section 3.6(a).
"Closing Balance Sheet Arbitrator" shall have the meaning
ascribed to such term in Section 3.6(b).
"Closing Date" shall mean the date of this Agreement.
"Code" shall mean the Internal Revenue Code of 1986, as amended.
"Contract" means any contract, charter, agreement, lease,
indenture, note, bond, instrument, lien, conditional sales contract,
mortgage, license, franchise, insurance policy, commitment or other
binding understanding or arrangement, whether written or oral.
"Environmental Claim" means any accusation, allegation, notice of
violation, action, claim, environmental Lien, demand, abatement or
other order or direction (conditional or otherwise) by any
governmental authority or any other Person for personal injury
(including sickness, disease or death), tangible or intangible
property damage, damage to the environment, nuisance, pollution,
contamination or other adverse effects on the environment, or for
fines, penalties or restrictions resulting from or based upon (i) the
existence, or the continuation of the existence, of a release
(including, without limitation, sudden or non-sudden accidental or
non-accidental releases) of, or exposure to, any Hazardous Substances,
odor or audible noise in, into or onto the environment (including,
without limitation, the air, soil, surface water or groundwater) at,
in, by, from or related to any property owned, operated or leased by
the Seller or any activities or operations thereof; (ii) the
transportation, storage, treatment or disposal of Hazardous Substances
on-site or off-site in connection with any property owned, operated or
leased by the Seller or its operations or facilities; or (iii) the
violation, or alleged violation, of any Environmental Law, order or
Environmental Permit of or from any governmental authority relating to
environmental matters connected with any property owned, leased or
operated by the Seller.
"Environmental Laws" means all federal, state, local and foreign
laws, common law duties, ordinances, codes, regulations and other
legally binding obligations relating to pollution, the protection of
the environment, human health and safety or natural
resources, including, without limitation, all such laws governing the
operation of the businesses of any of the Sellers or JV Companies,
each Owned Vessel, the generation, use, collection, treatment,
storage, transportation, recovery, removal, discharge or disposal of
Hazardous Substances or wastes and all such laws imposing record-
keeping, maintenance, testing, inspection, notification and reporting
requirements with respect to Hazardous Substances.
"Environmental Permits" shall have the meaning ascribed to such
term in Section 4.17(a).
"ERISA" shall mean the Employee Retirement Income Security Act of
1974, as amended.
"Escrow Agent" shall mean Den Norske Bank ASA, a Norwegian bank
acting through its New York branch as escrow agent.
"Escrow Agreement" shall have the meaning ascribed to such term
in Section 2.1(e).
"Exchange Act" shall mean the Securities Exchange Act of 1934, as
amended.
"Excluded Assets" shall have the meaning ascribed to such term in
Section 3.2.
"Final Net Non-Vessel Asset Amount" shall have the meaning
ascribed to such term in Section 3.6(b).
"GAAP" shall mean generally accepted accounting principles in the
United States of America as in effect from time to time set forth in
the opinions and pronouncements of the Accounting Principles Board and
the American Institute of Certified Public Accountants and the
statements and pronouncements of the Financial Accounting Standards
Board, or in such other statements by such other entity as may be in
general use by significant segments of the accounting profession,
which are applicable to the circumstances as of the date of
determination.
"Gain Amount" shall have the meaning ascribed to such term in
Section 3.7(g).
"Hazardous Substances" means any and all wastes, materials or
substances defined, regulated or classified as "hazardous substances,"
"hazardous wastes," "hazardous constituents" or words of similar
meaning under applicable Environmental Laws.
"HSR Act" shall mean the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements
Act of 1976, as amended.
"HSR Reports" shall mean the premerger notification and report
form filed under the HSR Act.
"Indemnified Party" shall have the meaning ascribed to such term
in Section 7.2.
"Indemnifying Party" shall have the meaning ascribed to such term
in Section 7.2.
"Indenture" shall mean that certain indenture, dated as of
November 1, 1996, between SEACOR and First Trust National Association,
as trustee.
"Initial Purchase Price" shall have the meaning ascribed to such
term in Section 3.4(b).
"IRS" shall mean the Internal Revenue Service of the United
States.
"Joint Venture Agreement" shall have the meaning ascribed to such
term in Section 6.1(j).
"JV Balance Sheets" shall have the meaning ascribed to such term
in Section 4.6(a).
"JV Company" shall have the meaning ascribed to such term in
Section 3.1(b).
"JV Financial Statements" shall have the meaning ascribed to such
term in Section 4.6(a).
"JV Vessel" shall mean a vessel owned by a JV Company, together
with all spare parts belonging to such vessel and all related stores,
supplies, fuel and lubes (whether on board or ashore).
"License Agreement" shall have the meaning ascribed to such term
in Section 6.1(g).
"Liens" shall mean pledges, liens, encumbrances, rights in rem,
leases, licenses, equities, conditional sales contracts, charges,
claims, encumbrances, security interests, easements, restrictions,
chattel mortgages, mortgages or deeds of trust, of any kind or nature
whatsoever.
"Losses" shall have the meaning ascribed to such term in Section
7.1(a).
"Malaysian Purchase" shall mean the acquisition of the vessels
that are owned by Xxxx-Xxxxx (Malaysia) Sdn. Bhd. on the Closing Date
by a Person in which SEACOR or one or more of its Subsidiaries owns an
equity interest.
"Management Services Agreements" shall have the meaning ascribed
to such term in Section 6.1(e).
"Material Adverse Effect" shall mean, with respect to any Person
or enterprise, a material adverse effect on the financial condition,
results of operations, business or prospects of such Person or
enterprise.
"Maximum Additional Purchase Price" shall mean U.S. $42,640,000;
provided, however, that from and after the consummation of the
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Malaysian Purchase, the "Maximum Additional Purchase Price" shall be
equal to $47,210,000.
"Net Non-Vessel Asset Amount" shall mean, with respect to any JV
Company, the difference between the Non-Vessel Assets of such JV
Company on a consolidated basis at December 31, 1996 and the Total
Liabilities of such JV Company on a consolidated basis at December 31,
1996; provided, however, that the Net Non-Vessel Asset Amount for each
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JV Company shall be reduced by an amount equal to the product of (i)
the net income of such JV Company on a consolidated basis for calendar
year 1996 and (ii) a fraction, the numerator of which is 13 (the
number of days from and including the Closing Date through and
including December 31, 1996) and the denominator of which is 365.
"Non-Vessel Assets" shall mean, with respect to any Person at
December 31, 1996, the total consolidated assets of such Person and
its Subsidiaries at such date, determined in conformity with
applicable accounting principles and standards applied consistently
with the past practices of such Person, other than (i) Vessel Assets,
(ii) any proceeds from the sale or other disposition of Vessel Assets,
(iii) any proceeds resulting from the total loss or constructive total
loss of any Vessel Assets, including any amounts recoverable from
insurance or other sources, (iv) any intangible assets, (v) the amount
of any accounts receivable that remain outstanding on the date on
which Final Net Non-Vessel Asset Amount with respect to such Person is
determined pursuant to Section 3.6(b), (vi) in the case of any JV
Company, an amount equal to the withholding Taxes that would be
payable under the laws under which the JV Company is organized or
operates if the percentage equity interest therein being transferred
hereunder of the retained earnings reflected on the Closing Date
Balance Sheet of such JV Company as of December 31, 1996 (subject to
adjustment based upon the resolution of any disputed items in
accordance with Section 3.6) were distributed to the Purchaser thereof
on the Closing Date or Chilean Closing Date, as applicable; and (vii)
any asset consisting of an equity interest in another Person (other
than a wholly-owned Subsidiary).
"NYSE" shall mean the New York Stock Exchange, Inc.
"Offshore Vessels" shall have the meaning ascribed to such term
in Section 8.1(b).
"Offshore Vessel Services" shall have the meaning ascribed to
such term in Section 8.1(a).
"Owned Vessels" shall have the meaning ascribed to such term in
Section 3.1(a).
"Permitted Liens" shall mean any mechanic's, worker's,
materialmen's, maritime or other liens arising as a matter of law in
the ordinary course of business consistent with past practice.
"Person" shall mean an individual, firm, corporation, general or
limited partnership, limited liability company, limited liability
partnership, joint venture, trust, governmental authority or body,
association, unincorporated organization or other entity.
"Pre-Closing Periods" shall mean all tax periods ending on or
before the Closing Date and, with respect to any tax period that
includes but does not end on the Closing Date, the portion of such
period that ends on and includes the Closing Date.
"Purchase Price" shall have the meaning ascribed to such term in
Section 3.4(a).
"Purchasers" shall mean, collectively, SEACOR and the SEACOR
Subsidiaries.
"Registration Rights Agreement" shall have the meaning ascribed
to such term in Section 3.8(a).
"Regulation S" shall mean Rules 901 through 904 under the
Securities Act.
"Restricted Period" shall have the meaning ascribed to such term
in Section 9.3(b).
"Retained Liabilities" shall have the meaning ascribed to such
term in Section 3.3.
"Returns" shall mean all returns, reports, estimates,
declarations, information return, statement or other similar documents
relating to Taxes, including any schedule or attachment thereto, and
including any amendment thereof.
"Salvage and Maritime Contracting Agreement" shall have the
meaning ascribed to such term in Section 6.1(j).
"SEACOR Affiliated Group" shall mean SEACOR and the direct and
indirect subsidiaries of SEACOR.
"SEACOR Audited Financial Statements" shall mean the audited
consolidated balance sheets, and the related consolidated statements
of earnings, stockholders' equity and cash flows, and the related
notes thereto, of SEACOR and its Subsidiaries as of and for the years
ended December 31, 1994 and 1995.
"SEACOR Common Stock" shall mean shares of common stock, $.01 par
value per share, of SEACOR.
"SEACOR Convertible Note" shall mean a 5-3/8% Convertible
Subordinated Note due November 15, 2006 of SEACOR in the principal
amount of U.S. $15,250,000 (Fifteen Million Two Hundred Fifty
Thousand) or two or more of such notes that are issued in
denominations which equal such principal amount in the aggregate,
issued pursuant to the Indenture.
"SEACOR Guaranty" shall have the meaning ascribed to such term in
Section 3.7(e)(ii).
"SEACOR Financial Statements" shall mean the SEACOR Audited
Financial Statements and the SEACOR Interim Financial Statements.
"SEACOR Interim Financial Statements" shall mean the unaudited
consolidated balance sheet, and the related consolidated unaudited
statements of earnings and cash flows, of SEACOR and its Subsidiaries
as of and for the nine- month period ended September 30, 1996.
"SEACOR Latest Balance Sheet" shall mean the consolidated balance
sheet included in the SEACOR Interim Financial Statements.
"SEACOR Material Contract" shall have the meaning ascribed to
such term in Section 5.8.
"SEACOR SEC Documents" shall have the meaning ascribed to such
term in Section 5.6(a).
"SEACOR Subsidiaries" shall mean the Subsidiaries of SEACOR
listed on Exhibit A hereto.
"SEC" shall mean the Securities and Exchange Commission of the
United States.
"Securities" shall mean the SEACOR Common Stock issued pursuant
to this Agreement, the SEACOR Convertible Note and the shares of
SEACOR Common Stock issuable upon conversion of the SEACOR Convertible
Note.
"Securities Act" shall mean the Securities Act of 1933, as
amended.
"Sellers" shall mean, collectively, SMIT and the SMIT
Subsidiaries.
"Sellers' Knowledge" shall mean the actual knowledge of the
Persons listed on Exhibit C hereto.
"Shared Sales Proceeds Amount" shall have the meaning ascribed to
such term in Section 3.4(c).
"SMIT" shall mean SMIT Internationale N.V., a corporation
organized under the laws of The Netherlands.
"SMIT EBITDA" shall have the meaning ascribed to such term in
Section 3.7(a).
"SMIT EBITDA Arbitrator" shall have the meaning ascribed to such
term in Section 3.7(e)(iii).
"SMIT EBITDA Benchmark" shall have the meaning ascribed to such
term in Section 3.7(c).
"SMIT Group" shall mean SMIT, the SMIT Subsidiaries and the JV
Companies.
"SMIT Material Contract" shall have the meaning ascribed to such
term in Section 4.9(b).
"SMIT Subsidiaries" shall mean the Subsidiaries of SMIT listed on
Exhibit B hereto.
"Subsidiary" shall mean, as to any Person, any other Person
which, directly or indirectly, controls such person. For the purpose
of this definition, "control" means the possession of the power to
direct or cause the direction of management and policies of such
Person, whether through ownership of voting securities, by contract or
otherwise; provided, however, that ownership of 50% of the voting
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securities of any Person does not, in and of itself, constitute
control.
"Taxes" means all taxes, charges, imposts, levies or other
assessments, including, without limitation, all net income, gross
receipts, sales, use, ad valorem, value added, transfer, franchise,
profits, inventory, capital stock, license, withholding, payroll,
employment, social security, unemployment, excise, severance, stamp,
occupation, property taxes, customs duties, fees, assessments and
charges of any kind whatsoever, together with any interest and any
penalties, additions to tax or additional amounts imposed by any
taxing authority (domestic or foreign) and any interest or penalties
imposed with respect to the filing, obligation to file or failure to
file any Return, and shall include any transferee liability in respect
of Taxes.
"Third Party Assertion" shall have the meaning ascribed to such
term in Section 7.2.
"Total Liabilities" means, with respect to any Person at any
date, the total consolidated liabilities of such Person and its
Subsidiaries at such date, determined in conformity with GAAP.
"Ultragas" shall mean Ultragas Xxxx Xxxxx Ltda., which is a JV
Company.
"Ultragas Interest" shall have the meaning ascribed to such term
in Section 6.3(c).
"Vessel Assets" shall mean, collectively, (i) the Owned Vessels
and (ii) the JV Vessels.
ARTICLE 2.
THE CLOSING
Section 2.1. Closing. (a) The closing of the transactions
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contemplated herein (the "Closing") shall take place,
contemporaneously with the execution and delivery of this Agreement,
at the offices of De Brauw Blackstone Westbroek in Rotterdam at 10:00
A.M. (Local Time) on the Closing Date.
(b) All proceedings taken and all documents executed and
delivered by the parties at the Closing are deemed taken and executed
simultaneously, and no proceeding is deemed taken nor any document
executed or delivered until all have been taken, executed and
delivered.
(c) At the Closing, the Sellers shall deliver or cause to
be delivered to the Purchasers the following:
(i) The documents and certificates described in Sections
6.1(a) through and including 6.1(k), duly executed as
provided therein; and
(ii) To the extent not delivered pursuant to Section
2.1(c)(i), copies of any and all approvals, consents,
certifications and/or waivers which are required by the
Sellers in connection with entering into this Agreement and
the sale to the Purchasers of the Acquired Assets.
(d) At the Closing and pursuant to the written instructions
of SEACOR and SMIT, the Escrow Agent shall pay to an account of
SEACOR, the U.S. $1,000,000 (One Million Dollars) deposit made by
SEACOR on behalf of the Purchasers pursuant to the Escrow Agreement
dated as of October 15, 1996 by and among SEACOR, SMIT and the Escrow
Agent (the "Escrow Agreement").
(e) At the Closing, the Purchasers shall deliver or cause
to be delivered to the following:
(i) At the direction and on behalf of the Sellers having
the right to receive such consideration and subject to
Section 6.3(c), U.S. $54,426,584 by wire transfer of
immediately available funds to an account of Smit
Internationale Beheer B.V. designated in writing by SMIT to
SEACOR prior to the Closing Date;
(ii) Subject to Section 6.3(c), at the direction and on
behalf of the Sellers having the right to receive such
consideration, a certificate representing 712,000
shares of SEACOR Common Stock issued in the name of Smit
International Overseas B.V.;
(iii)At the direction and on behalf of the Sellers having
the right to receive such consideration, the SEACOR
Convertible Note issued in the name of Smit International
Overseas B.V.;
(iv) The documents and certificates described in Sections
6.2(a) through and including 6.2(c), duly executed as
provided therein; and
(v) To the extent not delivered pursuant to Section
2.1(d)(iv), copies of any and all approvals, consents,
certifications and/or waivers which are required by the
Purchasers in connection with entering into this Agreement
and the purchase from the Sellers of the Acquired Assets.
ARTICLE 3.
SALE OF ASSETS; PURCHASE PRICE; PAYMENT
Section 3.1. Sale of Assets. Upon the terms and subject to the
--------------
conditions hereinafter set forth and except as otherwise set forth in
Section 3.2, at the Closing each of the Sellers hereby shall sell,
assign, transfer, convey and deliver to the Purchaser listed opposite
such Seller's name on Schedule 3.1, and each such Purchaser shall
purchase, acquire and accept from such Seller, all of the right, title
and interest of such Seller in, to and under the following
(collectively with respect to all Sellers, the "Acquired Assets"),
free and clear of all Liens (other than any Lien created by or through
any of the Purchasers or any Affiliate thereof):
(a) all of such Seller's rights, title and interest in, (i)
the vessels listed opposite such Seller's name on Schedule 3.1(a),
(ii) all spare parts belonging to the vessels and related stores,
supplies, fuel and lubes (whether on board or ashore), and (iii) the
extra spares listed on Schedule 3(a)-1 (collectively with respect to
all such items and all Sellers, the "Owned Vessels");
(b) all of such Seller's rights, title and interest in the
entities listed opposite such Seller's name on Schedule 3.1(b) (each a
"JV Company" and, collectively, the "JV Companies");
(c) to the extent permitted to be transferred by contract
or applicable law, all rights of any Seller under or pursuant to all
warranties, representations and guarantees made by suppliers,
manufacturers and contractors in connection with the operation of such
Seller's Owned Vessels;
(d) to the extent permitted by applicable law to be
transferred, all Permits issued by any governmental authorities held
or used by any Seller in connection with the operation of such
Seller's Owned Vessels, including, without limitation, those listed on
Schedule 4.17(a) hereto; and
(e) all of such Seller's rights, title and interests in the
charters and other Contracts listed on Schedule 3.1(e) hereto (the
"Assigned Contracts").
Section 3.2. Excluded Assets. Notwithstanding anything to the
---------------
contrary contained in Section 3.1, the parties to this Agreement
expressly understand and agree that the Sellers are not hereunder
selling, assigning, transferring or conveying to the Purchasers (i)
any amounts payable to Sellers under the Assigned Contracts listed on
Schedule 3.1(e) based upon or attributable to performance under such
Assigned Contracts provided by the Sellers or the operation of the
Owned Vessels by the Sellers prior to the Closing Date, (ii) any
refunds with respect to Taxes relating to any Pre-Closing Period,
except to the extent reflected on a Closing Balance Sheet or (iii) any
Contract or intangible asset to the extent that the provisions of
Section 8.5 are applicable thereto (collectively, the "Excluded
Assets"). The assets referred to in clause (iii) above shall
nevertheless constitute Acquired Assets for all other purposes when
such term is used in this Agreement.
Section 3.3. Assumed Liabilities and Retained Liabilities.
--------------------------------------------
(a) On the Closing Date, each of the Purchasers shall
assume and covenant to pay, perform and discharge the following
obligations, liabilities and indebtedness of the Sellers and the JV
Companies (collectively, the "Assumed Liabilities") listed opposite
such Purchaser's name on Schedule 3.1(a):
(i) obligations and liabilities of the Sellers for
performance under the Assigned Contracts listed on Schedule
3.1(e) hereto arising or accruing from and after the Closing
Date; and
(ii) obligations and liabilities relating to the JV
Companies for performance under the Assigned Contracts
listed on Schedule 3.3(a) hereto arising or accruing from
and after the Closing Date.
(b) From and after the Closing, the Sellers shall retain,
all Losses based upon, arising out of or resulting from any of the
following (the "Retained Liabilities"):
(i) any obligations or liabilities of the Sellers other
than the Assumed Liabilities;
(ii) any claims for any injury to person or property to the
extent attributable to (A) any services rendered by the
Sellers on or prior to the Closing, or (B) the operation of
any Owned Vessel on or prior to the Closing regardless of
whether such claims are asserted prior to, on or after the
Closing Date, in each case to the extent asserted against
SEACOR, any Affiliate thereof or any asset of SEACOR or any
such Affiliate;
(iii) any claims by any employee or former employee of
the Sellers or their Affiliates (A) arising out of the
employment or termination of employment of such employee or
former employee on or prior to the Closing Date or as a
result of the transactions contemplated by this Agreement or
(B) to the effect that such employee or former employee is
entitled to employment by any Purchaser or Affiliate thereof
(or payment in lieu of such employment) resulting from such
individual's status as such an employee or former employee,
in each case to the extent asserted against SEACOR, any
Affiliate thereof or any asset of SEACOR or any such
Affiliate;
(iv) any Environmental Claim arising out of or based upon
anything relating to Vessel Assets or the operation of the
JV Companies on or prior to the Closing to the extent
asserted against SEACOR, any Affiliate thereof or any asset
of SEACOR or any such Affiliate;
(v) any Taxes of the Sellers, any Taxes attributable to the
Business for any Pre-Closing Period and, except to the
extent reserved for in the Closing Balance Sheet of a JV
Company, any Taxes of any JV Company for any Pre-Closing
Period to the extent asserted against SEACOR, any Affiliate
thereof or any asset of SEACOR or any such Affiliate;
(vi) any obligations of the Sellers to pay any costs
associated with the class drydocking of any of Xxxx Xxxxx
Suez, Xxxx Xxxxx Aswan and Xxxx Xxxxx Luxor as provided for
in the joint venture agreement, dated December 1, 1995,
among Smit International Beheer (Antilles) Offshore N.V.,
Swire Pacific Offshore Holdings Ltd. and Messrs. Xxxxxxxx
Shilbaya, Omar Shilbaya and Ibrahim Shilbaya;
(vii) any obligations of the Sellers associated with the
Dutch government investment subsidy relating to the vessels
Xxxx Xxxxx "Fame" and Xxxx Xxxxx "Fortune"; and
(viii) any third party claims to the extent attributable
to occurrences or events which occurred on or prior to the
Closing and relate to the Vessel Assets or the Sellers.
Section 3.4. Purchase Price. (a) The aggregate consideration
--------------
payable by the Purchasers to the Sellers for the Acquired Assets (the
"Purchase Price") shall consist of the Initial Purchase Price (as
hereinafter defined) and the Additional Purchase Price (as hereinafter
defined).
(b) The "Initial Purchase Price" shall consist of the
following:
(i) cash in the amount of U.S. $54,426,584 subject to post-
Closing adjustment as provided in Section 3.6;
(ii) 712,000 shares of SEACOR Common Stock;
(iii) the SEACOR Convertible Note; and
(iv) the assumption by Purchasers of the Assumed
Liabilities.
(c) The "Additional Purchase Price" shall mean the lesser
of (i) the "Maximum Additional Purchase Price" and (ii) the sum of the
amounts referred to in clauses (A) and (B) below:
(A) the amount, if any, equal to the product of
(x) six and (y) the amount, if any, by which Average
SMIT EBITDA (as defined in Section 3.7(d)) exceeds the
SMIT EBITDA Benchmark (as defined in Section 3.7(c));
and
(B) the aggregate amount, if any, payable to
Sellers pursuant to Section 3.7(g) as the result of
sales of Owned Vessels on or prior to December 31, 1998
(the "Shared Sales Proceeds Amount").
Section 3.5. Allocation of Purchase Price. (a) The Purchase
----------------------------
Price shall be allocated among the Acquired Assets in accordance with
Schedule 3.5. The Sellers and the Purchasers agree to prepare and
file all federal, state, local and foreign income tax returns and
other filings reflecting the transactions contemplated by this
Agreement on a basis consistent with such allocation.
(b) The form and amount of the Purchase Price payable or
deliverable by each Purchaser to each Seller are set forth on Schedule
3.5.
Section 3.6. Post-Closing Adjustment. (a) No later than June
-----------------------
30, 1997 (or, if later, 60 days after SEACOR's receipt of audited
financial statements for the JV Companies as of December 31, 1996),
SEACOR shall prepare or cause to be prepared (in accordance with
applicable accounting principles and standards applied consistently
with past practices) and deliver to SMIT a closing date balance sheet
for each of the JV Companies as of December 31, 1996 (each, a "Closing
Balance Sheet"), which shall be accompanied by a computation of the
Net Non-Vessel Asset Amount based thereon.
(b) SMIT shall have a period of 60 days to review each
Closing Balance Sheet and the accompanying computation of the Net Non-
Vessel Asset Amount following delivery thereof by SEACOR. During such
period, SEACOR shall afford SMIT (directly and through its
accountants, attorneys, advisors and other representatives) access to
any of its books, records and work papers necessary to enable SMIT to
review each such Closing Balance Sheet and accompanying computation of
the Net Non-Vessel Asset Amount. SMIT may dispute any amounts
reflected in any such Net Non-Vessel Asset Amount by giving notice in
writing to SEACOR specifying each of the disputed items and setting
forth in reasonable detail the basis for such dispute. Failure by
SMIT to dispute the amounts reflected in any such Net Non-Vessel Asset
Amount within 60 days of delivery of the Closing Balance Sheet and
computation of the Net Non-Vessel Asset Amount based thereon by SEACOR
shall be deemed an acceptance thereof by SMIT. If, within 60 days
after delivery by SMIT to SEACOR of any notice of dispute in
accordance with this Section 3.6(b), SMIT and SEACOR are unable to
resolve all of such disputed items, then any remaining items in
dispute shall be submitted to binding
arbitration in the State of New York to one person from an independent
"big six" accounting firm selected in writing by SEACOR and SMIT or,
if SEACOR and SMIT fail or refuse to select such a person within ten
Business Days after request therefor by SEACOR or SMIT, a panel of
three members from one or more "big six" accounting firms shall be
selected, the first member by SMIT, the second member by SEACOR and
the third independent member by the other two members (such individual
arbitrator or such panel, the "Closing Balance Sheet Arbitrator"),
with the chairman of such panel to be selected by the other two
arbitrators. The Closing Balance Sheet Arbitrator shall determine the
remaining disputed items and report to SEACOR and SMIT with respect to
such items. The Closing Balance Sheet Arbitrator's decision shall be
final, conclusive and binding on all parties. The fees and
disbursements of the Closing Balance Sheet Arbitrator shall be borne
equally by SMIT and SEACOR. The Net Non-Vessel Asset Amount for each
JV Company if undisputed or deemed undisputed or as determined by the
mutual agreement of SEACOR and SMIT or by the Closing Balance Sheet
Arbitrator in accordance with the procedure outlined above shall be
the "Final Net Non-Vessel Asset Amount" for such JV Company.
(c) Within five Business Days after the Final Net Non-
Vessel Asset Amount for any JV Company is determined as provided in
Section 3.6(b), the Purchaser of the interest of Sellers in such JV
Company shall pay to the applicable Seller an amount equal to the
product of (i) such Final Net Non-Vessel Asset Amount and (ii) the
percentage equity interest in such JV Company purchased by such
Purchaser; provided, however, that if the Final Net Non-Vessel Asset
-------- -------
of any JV Company shall be a negative amount, the Seller of the
interest in such JV Company shall pay to the Purchaser thereof an
amount equal to the product of (A) such negative Final Net Non-Vessel
Asset Amount and (B) the percentage equity interest in such JV Company
sold by such Seller. The amount of any payment from any Purchaser to
any Seller, or from any Seller to any Purchaser, pursuant to the
immediately preceding sentence shall be accompanied by the payment of
an amount equal to interest on such amount at the rate of 5-3/8% per
annum from January 1, 1997 through and including the date of payment.
(d) The Purchasers shall use commercially reasonable
efforts to cause the JV Companies to collect their accounts receivable
reflected on the Closing Date Balance Sheets in the ordinary course of
business consistent with past practice, it being understood, however,
that the Purchasers may not be able to influence such collection
activities. In the event that any accounts receivable that are
reflected on any Closing Date
Balance Sheet of any JV Company do not constitute "Non-Vessel Assets"
(because they remain outstanding on the date on which the Final Net
Non-Vessel Asset Amount with respect thereto is determined) but are
subsequently paid or sold, each Purchaser of an interest of the
Sellers in such JV Company shall pay to the applicable Seller an
amount equal to the product of (i) the amount of the account
receivable that was so paid or the net sale proceeds thereof and (ii)
the percentage equity interest in such JV Company purchased by such
Purchaser.
(e) In addition to the post-Closing adjustment set forth in
the other subsections of this Section 3.6, promptly following the
Closing, the Purchasers and Sellers shall conduct a joint inventory of
the fuel and lubes belonging to the Owned Vessels and the Purchasers
shall pay to the Sellers the prices paid by the Sellers therefor.
Section 3.7. Additional Purchase Price.
-------------------------
(a) Subject to adjustment as provided in this Section 3.7,
"SMIT EBITDA" shall mean the earnings before interest, taxes,
depreciation and amortization generated by the Acquired Assets, as
computed on a basis consistent with SEACOR's historical financial
reporting. Consequently, it is understood and agreed that the
calculation of SMIT EBITDA shall include, without limitation (i)
drydocking expenses as incurred (neither accrued in advance nor
capitalized), (ii) the treatment of the Purchasers' interests in the
JV Companies as equity interests in earnings of 50% or less owned
companies, (iii) reasonable administrative charges for personnel
directly associated with the management of the Acquired Assets and
(iv) a reasonable allocation of SEACOR's administrative overhead
expenses; provided, however, that the allocation from SEACOR referred
-------- -------
to in clause (iv) above shall not exceed U.S. $500,000 per annum. In
the event that the Malaysian Purchase is consummated, for purposes of
this Section 3.7 (i) the term "Acquired Assets" shall include, from
and after the date of such consummation, the equity interest of SEACOR
or its Subsidiaries in the Person effecting such purchase and (ii)
Schedule 3.5 shall be deemed revised to list the vessels subject to
the Malaysian Purchase as having a value of $12,900,000.
(b) It is the parties' intention that the Acquired Assets
will be operated in the ordinary course of business of SEACOR and its
Subsidiaries and will be allocated a reasonable share of (i)
opportunities to generate SMIT EBITDA, (ii) drydockings and (iii)
other positive and negative opportunities, in each case as
compared to other similarly situated assets of SEACOR and its
Subsidiaries. Nothing contained in this Section 3.7 shall limit or
restrict SEACOR or any of its Subsidiaries in the management,
deployment or marketing of its assets, including the Acquired Assets;
it being understood, however, that SMIT may seek an adjustment to the
computation of SMIT EBITDA (A) if SMIT EBITDA is not determined in
accordance with the provisions of this Section 3.7 or (B) if SEACOR or
its Subsidiaries manages the Acquired Assets outside the ordinary
course of business and in a manner inconsistent with general past
practices at SEACOR and which has a material adverse effect on the
ability of the Acquired Assets to generate SMIT EBITDA; provided,
--------
however, that no such adjustment pursuant to the preceding clause (B)
-------
may be sought as the result of any Adjustment Event as contemplated by
Section 3.7(c).
(c) For purposes hereof, the "SMIT EBITDA Benchmark" shall
mean U.S. $17,056,000, subject to adjustment as follows:
(i) Upon the consummation of the Malaysian Purchase,
the SMIT EBITDA Benchmark shall be increased by the sum of
the adjustments referred to in clauses (A) and (B) below,
divided by two:
(A) an amount equal to the product of (1) U.S.
$1,828,000, multiplied by (2) a fraction, the numerator
---------- --
of which shall be the number of days (if any) remaining
in calendar 1997 after the date the Malaysian Purchase
was consummated and the denominator of which shall be
365; and
(B) U.S. $1,828,000 (provided, however, in the
-------- -------
event that the Malaysian Purchase were to be
consummated in 1998, the amount under clause (i) above
shall be zero and the amount under this clause (ii)
shall be equal to the product of $1,828,000 and a
fraction, the numerator of which shall be the number of
days remaining in calendar 1998 after the date the
Malaysian Purchase was consummated and the denominator
of which shall be 365.)
(ii) In the event of the sale or other disposition or
total loss or constructive total loss of any Acquired Assets
(an "Adjustment Event") on or prior to December 31, 1998,
the SMIT EBITDA Benchmark shall be reduced by the sum of the
adjustments referred to in clauses (A) and (B) below,
divided by two:
(A) with respect to each Adjustment Event that
occurs in calendar 1997, the sum of:
(1) an amount equal to the product of (x)
U.S. $18,884,000, multiplied by (y) a fraction,
---------- --
the numerator of which shall be the value
allocated on Schedule 3.5 to the Acquired Assets
with respect to which such event occurred and the
denominator of which shall be the value allocated
on Schedule 3.5 to all Acquired Assets, multiplied
----------
by (z) a fraction, the numerator of which shall be
--
the number of days remaining in calendar 1997
after the date such event occurred and the
denominator of which shall be 365; and
(2) an amount equal of the product of (x)
$18,884,000, multiplied by (y) the fraction
---------- --
referred to in clause (y) of Section 3.7(c)(ii)(A)
above.
(B) with respect to each Adjustment Event that
occurs in calendar 1998, an amount equal to the product
of (1) U.S. $18,884,000, multiplied by (2) a fraction,
---------- --
the numerator of which shall be the value allocated on
Schedule 3.5 to the Acquired Assets with respect to
which such event occurred and the denominator of which
shall be the value allocated on Schedule 3.5 to all
Acquired Assets, multiplied by (3) a fraction, the
---------- --
numerator of which shall be the number of days
remaining in calendar 1998 after the date such event
occurred and the denominator of which shall be 365.
(d) For purposes hereof, "Average SMIT EBITDA" shall mean
the cumulative SMIT EBITDA for calendar years 1997 and 1998 divided by
two.
(e) The Additional Purchase Price shall be payable as
follows:
(i) The Additional Purchase Price, together with interest
at the Agreed Rate (as hereinafter defined) for the period
commencing on January 1, 1999 and ending on the date of
payment, shall be paid to the Sellers no later than 120 days
after the completion of SEACOR's fiscal year ending December
31, 1998 (or, if later,
within five Business Days after the final determination of
the Additional Purchase Price pursuant to Section
3.7(e)(iii) hereof).
(ii) The amount referred to in Section 3.7(e)(i) shall
be payable (A) fifty percent (50%) in cash and (B) fifty
percent (50%) in five year unsecured, subordinated
promissory notes (in an aggregate principal amount equal to
such 50%) issued by each of the Purchasers or, in the case
of SEACOR, any Subsidiary thereof to which SEACOR has trans-
ferred Acquired Assets purchased by it (with principal
amounts in proportion to the allocations of Purchase Price
on Schedule 3.5) to the applicable Seller (or such Affiliate
of a Seller as such Seller may direct), substantially in the
form of Exhibit D hereto (each, an "Additional Purchase
Price Note"), which note shall bear interest at a rate
which, based upon the creditworthiness of SEACOR and all
other factors at the time of the issuance, shall cause such
note to have a fair market value equal to its principal
amount (the "Agreed Rate"); provided, however, that if the
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SEACOR Convertible Note shall be in default at the time the
Additional Purchase Price is payable, the entire amount
referred to in Section 3.7(e)(i) shall be payable in cash
and, provided further, that SEACOR shall guarantee the
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obligations of each Purchaser (other than SEACOR) or
Subsidiary of SEACOR under an Additional Purchase Price Note
by executing and delivering for the benefit of the holder
thereof a guarantee substantially in the form of Exhibit D-1
hereto (the "SEACOR Guaranty") at the time such Additional
Purchase Price Note is issued.
(iii) No later than April 30, 1999, SEACOR shall prepare
and deliver to SMIT a financial statement in reasonable
detail showing SMIT EBITDA for 1997 and 1998, the Shared
Sales Proceeds Amount, a calculation of the Additional
Purchase Price based thereon and the proposed Agreed Rate
(the "Additional Purchase Price Information"). SMIT shall
have a period of 60 days to review the Additional Purchase
Price Information following delivery thereof by SEACOR.
During such
period, SEACOR shall afford SMIT (directly and through its
accountants, investment bankers, attorneys, advisors and
other representatives) access to any of its books, records
and work papers necessary to enable SMIT to review the
Additional Purchase Price Information. SMIT may dispute any
amounts reflected in the Additional Purchase Price
Information by giving notice in writing to SEACOR specifying
each of the disputed items and setting forth in reasonable
detail the basis for such dispute. Failure by SMIT to
dispute the amounts reflected in the Additional Purchase
Price Information within 60 days of delivery thereof by
SEACOR shall be deemed an acceptance thereof by SMIT. If,
within 60 days after
delivery by SMIT to SEACOR of any notice of dispute in
accordance with this Section 3.7(e), SMIT and SEACOR are
unable to resolve all of such disputed items, then any
remaining items in dispute shall be submitted to binding
arbitration in the State of New York to one person from an
independent "big six" accounting firm selected in writing by
SEACOR and SMIT or, if SEACOR and SMIT fail or refuse to
select such a person within ten Business Days after request
therefor by SEACOR or SMIT, a panel of three members from
one or more "big six" accounting firms, the first member by
SMIT, the second member by SEACOR and the independent third
member by the other two members shall be selected (such
individual arbitrator or such panel, the "SMIT EBITDA Arbi-
trator"), with the chairman of such panel to be selected by
the other two arbitrators. The SMIT Arbitrator shall be
authorized to consult with or be advised by the consulting
or advisory operations of the accounting firm or firms of
which such individual arbitrator is a member or of which the
members of such panel are members. The SMIT EBITDA
Arbitrator shall determine the remaining disputed items and
report to SEACOR and SMIT with respect to such items. The
SMIT EBITDA Arbitrator's decision shall be final, conclusive
and binding on all parties. The fees and disbursements of
the SMIT EBITDA Arbitrator shall be borne equally by SMIT
and SEACOR. The computation of Additional Purchase Price
and the Agreed Rate if undisputed or deemed undisputed or as
determined by the mutual agreement of SEACOR and SMIT or by
the SMIT EBITDA Arbitrator in accordance with the procedure
outlined above shall be the Additional Purchase Price and
the Agreed Rate as finally determined for purposes hereof.
(iv) Notwithstanding the provisions of Section
3.7(e)(iii), if at the time of the issuance of the Additional Purchase
Price Note, SEACOR or SMIT shall in good faith believe that the
Additional Purchase Price Note shall not have a fair market value
equal to between 99.9% and 100.1% of the principal amount thereof, due
solely to changes in circumstances after the date on which the
Additional Purchase Price shall have been finally determined, the
Additional Purchase Price Note shall nevertheless be issued, but such
party shall be entitled to give a notice to the other party. Such
notice shall state in reasonable detail the reasons for such notifying
party's belief and shall state that the notifying party requests that
an agreement be reached or procedures be initiated to determine an
appropriate adjustment to the Agreed Rate (or a payment in lieu
of such adjustment). If the two parties do not reach an agreement as
to such adjustment (or payment) within 10 Business Days after the
giving of such notice, such procedures shall be initiated, and they
shall be comparable to the procedures set forth in Section
3.7(e)(iii), mutatis mutandis.
------- --------
(f) SMIT EBITDA shall be computed by SEACOR following the
conclusion of the second calendar quarter in 1997, following the
conclusion of calendar 1997 and following the conclusion of the first
three calendar quarters of 1998 and promptly reported by SEACOR to
SMIT in reasonable detail.
(g) In the event of the sale of any Owned Vessel or any
total loss or constructive total loss of any Owned Vessel on or prior
to December 31, 1998, the Sellers shall be entitled to receive, and
the Purchasers agree to pay to the Sellers, in each case in accordance
with the provisions of this Section 3.7, the Applicable Percentage (as
hereinafter defined) of the amount, if any (the "Gain Amount"), by
which the net proceeds from the sale of such Owned Vessel (which shall
be equal to the gross proceeds of sale less reasonable out-of-pocket
costs and expenses relating to such sale) or the net insurance
proceeds received in connection with any total loss or constructive
total loss of any Owned Vessel (which shall be equal to the gross
insurance proceeds less any out-of-pocket costs and expenses relating
to the collection of the same), as the case may be, exceed the value
allocated on Schedule 3.5 to such Owned Vessel. For purposes hereof,
the "Applicable Percentage" shall mean 36% in respect of any sale of
an Owned Vessel on or prior to January 31, 1997 and, in respect of any
sales occurring in any subsequent month, the percentage in effect for
the immediately preceding month reduced by 1.5% of the Gain Amount
(such that, for example, the Applicable Percentage in respect of sales
occurring during February 1997 shall be 34.5%, the Applicable
Percentage for sales occurring during March 1997 shall be 33% and the
Applicable Percentage for sales occurring during December 1998 shall
be 1.5%).
Section 3.8. Investment and Registration Rights Agreement;
---------------------------------------------
Restrictive Endorsement. (a) The issuance of the SEACOR Common Stock
-----------------------
and the SEACOR Convertible Note to the Sellers pursuant to this
Agreement will not be registered under the Securities Act, or any
state securities laws, in reliance upon certain exemptions from
registration contained therein and, therefore, will be subject to
restrictions on transfer. Pursuant to the terms and conditions of the
Investment and Registration Rights Agreement, in substantially the
form attached hereto as Exhibit E (the "Registration Rights
Agreement"), the Holders (as defined in the
Registration Rights Agreement) shall have certain rights to require
the registration of the resale by the Holders of their SEACOR Common
Stock, the SEACOR Convertible Note and the shares of SEACOR Common
Stock issuable upon conversion of the SEACOR Convertible Note.
(b) The certificate representing the shares of SEACOR
Common Stock and the SEACOR Convertible Note issued pursuant to this
Agreement shall be stamped with legends in the respective forms
specified in the Investment and Registration Rights Agreement.
ARTICLE 4.
REPRESENTATIONS AND WARRANTIES OF THE SELLERS
The Sellers represent and warrant to the Purchasers as follows:
Section 4.1. Organization. (a) Each of the Sellers is duly
------------
organized and validly existing under the laws of its jurisdiction of
incorporation and is in good standing in such jurisdictions where such
concept exists and has all corporate power and authority to carry on
its business as now being conducted and to own, lease and operate its
properties.
(b) Each JV Company is duly organized and validly existing
under the laws of its jurisdiction of incorporation and is in good
standing in such jurisdictions where such concept exists and has all
corporate power and authority to carry on its business as now being
conducted and to own, lease and operate its properties. To the
Sellers' Knowledge, each JV Company is duly qualified or licensed to
do business in each jurisdiction in which the character or location of
the properties owned or leased by it or the nature of the business
conducted by it makes such qualification or licensing necessary and is
in good standing in such jurisdictions where such concept exists,
except where the failure to be so qualified, licensed or in good
standing would not have a Material Adverse Effect on such JV Company.
Section 4.2. JV Companies. (a) Schedule 3.1(b) lists each JV
------------
Company, the name of each Seller owning any equity or other interest
therein and the percentage equity ownership therein of each such
Seller. All of the shares of capital stock of, or other equity
interests in, each JV Company have been duly authorized and validly
issued and are fully paid and nonassessable. Except as set forth on
Schedule 4.2(a), the Seller listed opposite the name of each JV
Company on Schedule 3.1(b) hereto is (and, since its initial
acquisition thereof, has
been) the record and beneficial owner of the interests in such JV
Company to be sold by it pursuant to this Agreement, free and clear of
any and all Liens or agreements of any kind whatsoever.
Section 4.3. Authority; Enforceable Agreement. (a) Each of the
--------------------------------
Sellers has the requisite corporate power and authority to enter into
this Agreement and to consummate the transactions contemplated hereby.
The execution and delivery of this Agreement by each of the Sellers
and the consummation by each of the Sellers of the transactions
contemplated hereby have been duly authorized by all necessary
corporate action on the part of each of the Sellers.
(b) This Agreement has been duly executed and delivered by
each of the Sellers and (assuming due execution and delivery by the
other parties hereto) constitutes a valid and binding obligation of
each of the Sellers, enforceable against each of the Sellers in
accordance with its terms, except as such enforceability may be
limited by bankruptcy, insolvency, reorganization or similar laws
affecting creditors' rights generally. The other agreements entered,
or to be entered, into by any of the Sellers in connection with this
Agreement have been, or will be, duly executed and delivered by any of
the Sellers and (assuming due execution and delivery by the other
parties thereto) constitute, or will constitute, valid and binding
obligations of such Seller, enforceable against such Seller in
accordance with their terms, except as such enforceability may be
limited by bankruptcy, insolvency, reorganization or similar laws
affecting creditors' rights generally.
Section 4.4. No Conflicts or Consents. (a) Except as set forth
------------------------
on Schedule 4.4(a), neither the execution, delivery nor performance of
this Agreement by the Sellers nor the consummation of the transactions
contemplated hereby will (i) violate, conflict with, or result in a
breach of any provision of, constitute a default (or an event that,
with notice or lapse of time or both, would constitute a default)
under, result in the termination of, or accelerate the performance
required by, or result in the creation of any adverse claim against
the Owned Vessels or any of the properties or assets of any JV Company
under (A) the certificate of incorporation, by-laws or any other
organizational documents of any member of the SMIT Group, or (B) any
note, bond, mortgage, indenture, deed of trust, lease, license,
agreement or other instrument or obligation to which any Seller is a
party, or by which any of the Sellers or any of their assets are bound
or, to the Sellers' Knowledge, to which any JV Company is a party or
by which any of its assets are bound, or
(ii) subject to obtaining clearance under the HSR Act, violate any
order, writ, injunction, decree, judgment, statute, rule or regulation
of any governmental body to which any member of the SMIT Group is
subject or by which any member of the SMIT Group or any of its assets
are bound.
(b) Except as set forth on Schedule 4.4(b), no consent,
approval, order, permit or authorization of, or registration,
declaration or filing with, any Person or of any government or any
agency or political subdivision thereof is required for the execution,
delivery and performance by the Sellers of this Agreement and the
covenants and transactions contemplated hereby or for the execution,
delivery and performance by the Sellers of any other agreements
entered, or to be entered, into by any of the Sellers in connection
with this Agreement, except for (i) the filing of the HSR Report by
SMIT under the HSR Act and the early termination or expiration of all
applicable waiting periods thereunder and (ii) notification to the
Social Economic Council in The Netherlands.
Section 4.5. Corporate Documents. (a) SMIT has delivered to
-------------------
SEACOR true and complete copies of the certificate of incorporation
and by-laws or other similar organizational documents, as amended or
restated through the Closing Date of each of the JV Companies.
Schedule 4.5(a) lists the registered seat of each member of the SMIT
Group organized under the laws of The Netherlands or The Netherlands
Antilles.
(b) SMIT has delivered to SEACOR true and correct copies of
(i) all stockholder agreements, voting agreements, warrants, stock
options or other contracts relating to the capital stock of, or other
debt or equity investment in, each JV Company (and any Subsidiary of
any JV Company) and (ii) all other Contracts pursuant to which any
Seller (or any Affiliate of any Seller) has any rights or obligations
with respect to a JV Company or any other Person in connection with
such JV Company. All such Contracts (including any amendments or
modifications thereto) with respect to each JV Company are listed
opposite such JV Company's name on Schedule 4.5(b).
Section 4.6. Financial Statements; Liabilities. SMIT has
---------------------------------
delivered to SEACOR (i) audited financial statements for each of the
JV Companies set forth on Schedule 4.6 (the "JV Financial Statements")
and (ii) with respect to each of the JV Financial Statements that were
not prepared in accordance with GAAP, a statement indicating any
material variations in accounting principles, practices and methods
used in the preparation of such JV Financial Statements as compared to
GAAP, together with a
reconciliation (for each period that an income statement is presented)
of net income to GAAP. Except as set forth on Schedule 4.6, the JV
Financial Statements for each JV Company have been prepared on a basis
consistent with prior periods and present fairly the financial
position of such JV Company as at the dates of the balance sheet
included therein and the results of operations and cash flows for the
periods then ended. Except as set forth on Schedule 4.6, to the
Sellers' Knowledge none of the JV Companies has, nor are any of their
assets subject to, any liability, commitment, debt or obligation (of
any kind whatsoever whether absolute or contingent, accrued, fixed,
known, unknown, matured or unmatured), except (i) as and to the extent
reflected on the latest balance sheet of such JV Company contained in
the JV Financial Statements (the "JV Balance Sheets"), (ii) as may
have been incurred or may have arisen since the date of such balance
sheet in the ordinary course of business and that are not material
individually or in the aggregate or (iii) as permitted by this
Agreement.
Section 4.7. [RESERVED]
Section 4.8. Absence of Certain Changes or Events. To the
------------------------------------
Sellers' Knowledge, except as set forth on Schedule 4.8 or as
contemplated by this Agreement, since September 30, 1996 each of the
JV Companies has conducted its business only in the ordinary course
and has not:
(a) amended its certificate of incorporation, by-laws or
similar organizational documents;
(b) incurred any liability or obligation of any nature
(whether absolute or contingent, accrued, fixed, known, unknown,
matured or unmatured), except in the ordinary course of business;
(c) suffered or permitted any of its assets to be or remain
subject to any lien other than those disclosed on Schedule 4.10 or
4.12(a) and that collateralize indebtedness reflected on the JV
Balance Sheets and Liens for Taxes accrued but not yet payable and
Permitted Liens;
(d) merged or consolidated with another Person or acquired
or agreed to acquire any Person or sold, leased, transferred or
otherwise disposed of any assets except for fair value in the ordinary
course of business;
(e) made any capital expenditure or commitment therefor,
except in the ordinary course of business, provided that any
acquisitions of vessels, or acquisitions of, or
improvements to, real property, shall not be considered to be in the
ordinary course of business;
(f) entered into or amended any employment, severance or
similar agreement or arrangement with any director or employee, or
granted any increase in the rate of wages, salaries, bonuses, employee
advances or other compensation or benefits of any executive officer or
other employee, other than any such agreement, arrangement or increase
that is in the ordinary course of business consistent with past
practice;
(g) made any change in any method of accounting principle
or practice;
(h) suffered the termination, suspension or revocation of
any license or permit necessary for the operation of its business or
any of the Vessel Assets;
(i) entered into any transaction other than on an arm's-
length basis;
(j) suffered any damage, destruction or loss (whether or
not covered by insurance) which has had or could reasonably be
expected to have a Material Adverse Effect on each JV Company;
(k) entered into any new line of business; or
(l) agreed, whether or not in writing, to do any of the
foregoing.
Section 4.9. Contracts. (a) To the Sellers' Knowledge, except
---------
as set forth on Schedule 4.5(b) or Schedule 4.9(a), no JV Company is a
party to: (i) any Contract with any director or management level
employee; (ii) any Contract containing an obligation to guarantee or
indemnify any other Person; (iii) any joint venture, partnership or
similar Contract involving a sharing of profits or expenses; (iv) any
charter, management or technical service Contracts relating to the JV
Vessels that are in effect on the Closing Date; (v) any Contract under
which any JV Company has borrowed any money or issued any note, bond
or other evidence of indebtedness for borrowed money or guaranteed
indebtedness for money borrowed by others; (vi) any hedge, swap,
exchange, futures or similar Contracts; or (vii) any Contract that has
had or may have a Material Adverse Effect on the Business.
(b) To the Sellers' Knowledge, Schedules 3.1(e), 4.5(b) and
4.9(b), taken together, contain a list and brief
description (including the names of the parties and the date and
nature of the agreement) of each material Contract to which any of the
JV Companies is a party and each material Contract relating to the
Acquired Assets to which any of the Sellers is a party (each a "SMIT
Material Contract"); provided, however, that, except for Contracts
-------- -------
listed on Schedule 3.1(e), 4.5(b) or 4.9(b), a Contract shall not be
deemed to be material if the obligations thereunder are reasonably
subject to quantification and such obligations do not involve
remaining payments to or from any JV Company that exceed $200,000 in
any period of 12 consecutive months. There is no existing breach by
any Seller and, to the Sellers' Knowledge, any JV Company, of any of
its SMIT Material Contracts and there has not occurred any event that
with the lapse of time or the giving of notice or both would in the
case of any Seller or, to Sellers' Knowledge, any JV Company,
constitute such a breach. There is not pending nor, to the knowledge
of SMIT, threatened, any claim that any of the Sellers or, to the
Sellers' Knowledge, the JV Companies, has breached any of the terms or
conditions of any of its SMIT Material Contracts and, to the Sellers'
Knowledge, no other parties to such SMIT Material Contracts have
breached any of their terms or conditions. SEACOR has been provided
with a complete and accurate copy of each SMIT Material Contract
listed on Schedule 4.9(b).
Section 4.10. Properties and Leases Other than Vessels. (a) To
----------------------------------------
the Sellers' Knowledge, except as set forth on Schedule 4.10(a), with
respect to assets other than JV Vessels used by a JV Company in the
conduct of its business and except for assets disposed of for adequate
consideration in the ordinary course of business and which are not
material to the operation of its business, each JV Company has good
and valid title to all real property and all other properties and
assets accounted for as belonging to such JV Company reflected in the
JV Balance Sheet of such JV Company free and clear of all Liens,
except for (i) Liens that secure indebtedness that is properly
reflected in the JV Balance Sheet of such JV Company, (ii) Liens for
Taxes accrued but not yet payable, (iii) Permitted Liens, provided
that the obligations collateralized by such Permitted Liens are not
delinquent or are being contested in good faith, (iv) such
imperfections of title and encumbrances, if any, as do not in the
aggregate materially detract from the value or materially interfere
with the present use of any such properties or assets or the potential
sale of any such properties and assets and (v) capital leases and
leases of such properties, if any, to third parties for fair and
adequate consideration.
(b) To the Sellers' Knowledge, with respect to each lease
of real property and material amount of personal property (other than
vessels) to which a JV Company is a party, (i) such JV Company has a
valid leasehold interest in such real property or personal property;
(ii) such lease is in full force and effect in accordance with its
terms, (iii) all rents and other monetary amounts that have become due
and payable thereunder have been paid in full, (iv) no waiver,
indulgence or postponement of the obligations thereunder has been
granted by the other party thereto; (v) there exists no material
default (or an event that, with notice or lapse of time or both would
constitute a material default) under such lease, (vi) such JV Company
has not violated any of the terms or conditions under any such lease,
(vii) there has been no (A) condition or covenant to be observed or
performed by any other party under any such lease that has not been
fully observed and performed and (B) in the case of each prime lease
concerning demised premises subleased to any member of the SMIT Group,
condition or covenant to be observed or performed by each party
thereto that has not been fully observed and performed and there does
not exist any event of default or event, occurrence, condition or act
that, with the giving of notice, the lapse of time or the happening of
any further event or condition, would become a default under any such
prime lease and (viii) the transactions described in this Agreement
will not constitute a default under or cause for termination or
modification of such lease.
(c) To the Sellers' Knowledge, except as disclosed on
Schedule 4.10, the rent charged to any JV Company under any lease
(other than with respect to vessels) between any member of the SMIT
Group and any of their Affiliates (other than another member of the
SMIT Group) is at or below the market rate and any such lease contains
such other terms and conditions that are no less favorable to such JV
Company than would be obtainable in an arm's-length transaction with
an independent third party lessor.
(d) To the Sellers' Knowledge, Schedule 4.10(a) contains a
list of all real property owned by each JV Company and a list of all
leases, other than with respect to vessels, to which any of the JV
Companies are parties, which list includes, to the Sellers' Knowledge,
a reasonable description of the location and approximate square
footage of each property, whether owned or leased, and the term of
each such lease, including all renewal options.
Section 4.11. Condition of Assets Other than Vessels. To the
--------------------------------------
Sellers' Knowledge, all of the tangible assets of the JV Companies
(other than vessels) are currently in good and usable
condition, ordinary wear and tear excepted, and are being used in the
business of the JV Companies. To the Sellers' Knowledge, there are no
defects in such assets or other conditions that in the aggregate have
or would be reasonably likely to have, a Material Adverse Effect on
any JV Company. To the Sellers' Knowledge, such assets and the other
properties being leased by a JV Company pursuant to the leases
described on Schedule 4.10, together with the vessels listed on
Schedule 4.12(b), constitute all of the operating assets being
utilized by the JV Companies in the conduct of their business and such
assets are sufficient in quantity and otherwise adequate for the
operations of the JV Companies as currently conducted.
Section 4.12. Vessels. (a) With respect to the Owned Vessels,
-------
a SMIT Subsidiary is the sole owner of each Owned Vessel owned by it
and has good title to each such vessel free and clear of all Liens,
except for (i) Liens for Taxes accrued but not yet payable and (ii)
Permitted Liens, provided that the obligations collateralized by such
Permitted Liens are not delinquent or are being contested in good
faith and, except with respect to the matters disclosed on Schedule
4.15, in no event shall such contested obligations, individually or in
the aggregate, exceed $100,000 in the aggregate. Schedule 4.12(a)
contains a list of all Liens on vessels collateralizing indebtedness
on the SMIT Balance Sheets and any guaranty or other credit support
arrangement pursuant to which any SMIT Subsidiary has guaranteed an
obligation of any other member of the SMIT Group where vessels are the
collateral.
(b) Schedule 4.12(b) hereto sets forth a list of each JV
Vessel. To the Sellers' Knowledge, with respect to the JV Vessels, a
JV Company is the sole owner of each JV Vessel owned by it and has
good title to each such vessel free and clear of all Liens, except for
(i) Liens that collateralize indebtedness that is properly reflected
in the JV Balance Sheet of such JV Company; (ii) Liens for Taxes
accrued but not yet payable; (iii) Permitted Liens, provided that the
obligations collateralized by such Permitted Liens are not delinquent
or are being contested in good faith and, except with respect to the
matters disclosed on Schedule 4.15, in no event shall such contested
obligations, individually or in the aggregate, exceed $100,000 in the
aggregate. To the Sellers' Knowledge, Schedule 4.12(b) contains a
list of all Liens on vessels collateralizing indebtedness on the JV
Balance Sheets and any guaranty or other credit support arrangement
pursuant to which any JV Company has guaranteed an obligation of any
other member of the SMIT Group where vessels are the collateral.
(c) To the Sellers' Knowledge, none of the JV Companies
bareboat charters in any vessels except from another member of the
SMIT Group and none of the JV Companies charters in or operates, under
any agreement forms other than a bareboat charter, any vessels other
than those that are owned by another member of the SMIT Group.
(d) [RESERVED]
(e) With respect to each Owned Vessel and each JV Vessel
and except as indicated on Schedule 4.12(e), (i) such Owned Vessel is
and, to the Sellers' Knowledge, such JV Vessel is lawfully and duly
documented under the flag of the nation listed on Schedule 3.1(a) or
4.12(b) for such Vessel Asset and such Owned Vessel and, to the
Sellers' Knowledge, such JV Vessel otherwise qualified to operate in
the trades where it is presently operating, (ii) such Owned Vessel is
and, to the Sellers' Knowledge, such JV Vessel is in good operating
condition and repair, consistent with its age, and has been maintained
and serviced in accordance with the SMIT Group's normal practices and
in the normal course of business, (iii) such Owned Vessel holds and,
to the Sellers' Knowledge, such JV Vessel holds in full force and
affect all certificates, licenses, permits and rights required for
operation in the manner vessels of its kind are being operated in the
geographical area in which such Vessel Asset is presently being
operated, (iv) to the Sellers' Knowledge, no event has occurred and no
condition exists that would materially or adversely affect the
condition of such Vessel Asset and (v) with respect to any Owned
Vessel which is classed and, to the Seller's Knowledge, any JV Vessel
which is classed, such vessel is in class, free of any recommendations
of which SMIT or any member of the SMIT Group has been informed.
(f) To the Sellers' Knowledge, except for the Owned
Vessels, the JV Vessels and as set forth on Schedule 4.12(f), no
member of the SMIT Group owns, operates or manages any Offshore
Vessel.
(g) Since October 14, 1996, Sellers have continued to
maintain their inventory of spare parts (whether on board or ashore)
for the Vessel Assets following the same policy and in the same usual
and customary manner as prior to such date, including any renewal or
replacement of spare parts used in the repair of any vessel.
(h) Since October 14, 1996, the Sellers have not: (i)
departed from any normal drydock and maintenance practices or
discontinued replacement or renewal of spares in operating its
fleet with respect to the Acquired Assets; (ii) deferred any scheduled
maintenance on any Vessel Assets; (iii) except as set forth in
Schedule 4.12(h) entered into any charter for any Vessel Assets which
has a term of longer than six months; (iv) authorized any of, or
agreed or committed to do any of, the foregoing actions; or (v) failed
to maintain, renew or assist SEACOR in obtaining all necessary
Environmental Permits or other permits required for its business and
vessels.
(i) SMIT has notified SEACOR of any Vessel Asset that has
been drydocked since October 14, 1996 and of any insurable or
noninsurable loss since October 14, 1996, in each case to the Sellers'
Knowledge with respect to any JV Vessel.
Section 4.13. Suppliers and Customers. To the Sellers'
-----------------------
Knowledge, except as disclosed on Schedule 4.13, (a) no supplier
providing products, materials or services to a Seller with respect to
any Acquired Assets or a JV Company intends to cease selling such
products, materials or services to such Seller or JV Company or to
limit or reduce such sales to such Seller or JV Company or materially
alter the terms or conditions of any such sales and (b) no customer of
a Seller with respect to any Acquired Assets or a JV Company intends
to terminate, limit or reduce its or their business relations with
such Seller or JV Company.
Section 4.14. Tax Matters. To the Sellers' Knowledge, each of
-----------
the following is true with respect to each JV Company to the extent
applicable to such entity:
(a) All Returns required to be filed by or with respect to
each JV Company have been, or will be, timely filed in accordance with
all applicable laws and all such Returns are true, correct and
complete in all material respects. All Taxes that are due, or claimed
by any taxing authority to be due from or with respect to each JV
Company have been, or will be, timely paid. With respect to any
period for which Returns have not yet been filed, or for which Taxes
are not yet due or owing, each JV Company, as the case may be, has
made due and sufficient current accruals for such Taxes as reflected
on its books (including, without limitation, the JV Balance Sheets);
(b) There are no outstanding agreements, consents, waivers
or arrangements extending the statutory period of limitation
applicable (A) to file any Return or (B) for assessment or collection
of any Taxes due from or with respect to any JV Company for any period
prior to the date hereof, and no JV
Company has been requested to enter into any such agreement, consent,
waiver or arrangement;
(c) All material elections with respect to Taxes affecting
any JV Company are set forth in Schedule 4.14(d);
(d) All Taxes that any JV Company is required by law to
withhold or collect (including Taxes required to be withheld and
collected from employee wages, salaries and other compensation) have
been duly withheld or collected, and have been timely paid over to the
appropriate governmental authorities;
(e) No Tax audits or other administrative proceedings are
pending with regard to any Taxes for which any JV Company may be
liable and no JV Company has received any notice from any taxing
authority that it intends to conduct such an audit or commence such an
administrative proceeding; and
(f) No claim has been made by a taxing authority in a
jurisdiction where any JV Company does not file Returns that such
entity is or may be subject to taxation by that jurisdiction.
Section 4.15. Litigation. Except as disclosed on Schedule 4.15,
----------
there are no actions, suits, proceedings, arbitrations or
investigations pending or, to the Sellers' Knowledge, threatened
before any court, any governmental agency or instrumentality or any
arbitration panel, against (i) any of the Sellers in connection with
or relating to the Business or (ii) to the Sellers' Knowledge, against
any JV Company or against any of the directors or officers of the
Sellers or the JV Companies in connection with or relating to the
Business. To the Sellers' Knowledge, no facts or circumstances exist
that would be likely to result in the filing of any such action that
would have a Material Adverse Effect on the Business. Except as
disclosed on Schedule 4.15, Seller and, to the Sellers' Knowledge, no
JV Company is subject to any currently pending judgment, order or
decree entered in any lawsuit or proceeding. To the Sellers'
Knowledge, all matters listed on Schedule 4.15 are either adequately
covered by insurance or accounted for through the establishment of
reasonable reserves on the JV Balance Sheets.
Section 4.16. Insurance. (a) Schedule 4.16(a) contains a list
---------
and description, including limits of coverage and deductibles, of the
insurance policies that each Seller and to the Sellers' Knowledge,
each JV Company, currently maintains with respect to the Acquired
Assets and the related business, vessels, properties and employees as
of the date hereof. Each of such policies maintained by any Seller
and, to the Sellers' Knowledge,
each of such policies maintained by any JV Company is in full force
and effect and a complete and correct copy of each has been delivered
to SEACOR. All insurance premiums, club calls, back calls and
assessments (if any) currently due with respect to such policies
maintained by the Sellers and, to the Sellers' Knowledge, with respect
to such policies maintained by the JV Companies, have been paid and no
Seller, and, to the Sellers' Knowledge, no JV Company, is otherwise in
default with respect to any such policy, nor has any Seller or, to the
Sellers' Knowledge, any JV Company, failed to give any notice or, to
the Sellers' Knowledge, present any claim under any such policy in a
due and timely manner. There are no outstanding unpaid claims under
any such policy other than any pending claims under the marine
insurance policies of any Seller or, to the Sellers' Knowledge, any JV
Company and the amount of such claims have,to the Sellers' Knowledge,
been recorded as a receivable and all of such claims are, to the
Sellers' Knowledge, fully collectible. No Seller and, to the Sellers'
Knowledge, no JV Company, has received notice of cancellation or non-
renewal of any such policy. Such policies maintained by the Sellers
and, to the Sellers' Knowledge, such policies maintained by the JV
Companies, are sufficient for compliance with all requirements of law
and all agreements to which any member of the SMIT Group is a party.
(b) All Vessel Assets are entered and, for a reasonable
period prior to the Closing, have been entered into The Standard P&I
Club.
Section 4.17. Environmental Compliance. (a) Except as set
------------------------
forth on Schedule 4.17(a), each Seller and, to the Sellers' Knowledge,
each JV Company, is and, to the Sellers' Knowledge, has been during
the three years prior to the date of this Agreement, in compliance
with all Environmental Laws that apply to or affect the Business or
any JV Company and each Seller and, to the Sellers' Knowledge, each JV
Company possesses all necessary licenses, permits, authorizations, and
other approvals and authorizations that are required under such
Environmental Laws ("Environmental Permits"), and all such
Environmental Permits are in full force and effect.
(b) Except as set forth on Schedule 4.17(b), no Seller and,
to the Sellers' Knowledge, no JV Company, is, nor has been during the
three years prior to the date of this Agreement, subject to any
pending or, to the knowledge of SMIT, threatened investigations,
administrative or judicial proceedings pursuant to, or has received
any notice of any violation of, or claim alleging liability under, any
Environmental Laws that apply to or affect the Business or any JV
Company, and, to the Sellers'
Knowledge, no facts or circumstances exist that would be likely to
result in a claim, citation or allegation against any member of the
SMIT Group for a violation of, or alleging liability under, any such
Environmental Laws.
(c) The disposal by each Seller and, to the Sellers'
Knowledge, each JV Company of its Hazardous Substances and wastes in
relation to the Business has been in compliance with all Environmental
Laws.
Section 4.18. Compliance With Law; Permits. Except with respect
----------------------------
to Environmental Laws, which is the subject of Section 4.17, the
following statements are true and correct:
(a) The operations and activities in relation to the
Business of each Seller and, to the Sellers' Knowledge, each JV
Company, complies with all applicable laws, regulations, ordinances,
rules or orders of any court of competent jurisdiction or any
governmental authority except for any violation or failure to comply
that could not reasonably be expected to result in a Material Adverse
Effect on the Business or any JV Company.
(b) Each Seller and, to the Sellers' Knowledge, each JV
Company, possesses all governmental licenses, permits and other
governmental authorizations that are (i) required under all applicable
laws and regulations for the ownership, use and operation of its
assets or (ii) otherwise necessary to permit the conduct of its
business without interruption, and such licenses, permits and
authorizations are in full force and effect and have been and are
being fully complied with by it except for any failure to possess and
for any violation or failure to comply that could not reasonably be
expected to result in a Material Adverse Effect on the Business. No
Seller and, to the Sellers' Knowledge, no JV Company has received any
notice of any violation of any of the terms or conditions of any such
license, permit or authorization and, to the Sellers' Knowledge, no
facts or circumstances exist that could form the basis of a
revocation, claim, citation or allegation against it for a violation
of any such license, permit or authorization. No such license, permit
or authorization or any renewal thereof of any Seller or, to the
Sellers' Knowledge, any JV Company will be terminated, revoked,
suspended, modified or limited in any respect as a result of the
transactions contemplated by this Agreement except for any violation
or failure to comply that could not reasonably be expected to result
in a Material Adverse Effect on the Business.
Section 4.19. Interests in Clients, Suppliers, Etc. Except as
------------------------------------
set forth on Schedule 4.19, to the Sellers' Knowledge, no officer or
director of any member of the SMIT Group possesses in relation to the
Business, directly or indirectly, any financial interest in, or is a
director, officer or employee of, any corporation or business
organization that is a supplier, customer, lessor, lessee, or
competitor or potential competitor of a member of the SMIT Group in
relation to the Business or that has entered into any contract with
any member of the SMIT Group in relation to the Business. Ownership
of less than 1% of any class of securities of a company whose
securities are registered under the Exchange Act or are publicly
traded outside the U.S. will not be deemed to be a financial interest
for purposes of this Section 4.19.
Section 4.20. Transactions With Related Parties. (a) To the
---------------------------------
Sellers' Knowledge, Schedule 4.20(a) lists all transactions relating
to the Business between January 1, 1993 and the Closing Date
involving, or for the benefit of, any member of the SMIT Group, on the
one hand, and any director or officer of any member of the SMIT Group
or Affiliate of such director or officer, on the other hand, including
(i) any debtor or creditor relationship, (ii) any transfer or lease of
real or personal property or charter or management of any Owned Vessel
and (iii) any purchases or sales of products or services.
(b) To the Sellers' Knowledge, Schedule 4.20(b) lists (i)
all agreements and claims of any nature in relation to the Business
that any officer or director of any member of the SMIT Group or any
Affiliate (other than another member of the SMIT Group) of such
officer or director has with or against any member of the SMIT Group
as of the Closing Date and (ii) all agreements and claims of any
nature in relation to the Business that any member of the SMIT Group
has with or against any officer or director of any member of the SMIT
Group or any Affiliate (other than another member of the SMIT Group)
of such officer or director as of the Closing Date.
Section 4.21. Broker's and Finder's Fee. No agent, broker,
-------------------------
person or firm acting on behalf of any Seller is or will be entitled
to any commission or broker's or finder's fee from any of the parties
hereto, or from any Affiliate of the parties hereto, in connection
with any of the transactions contemplated herein.
ARTICLE 5.
REPRESENTATIONS AND WARRANTIES OF THE PURCHASERS
The Purchasers represent and warrant to the Sellers as follows:
Section 5.1. Organization. The Purchasers are corporations duly
------------
organized, validly existing and in good standing under the laws of the
respective jurisdictions of their incorporation and have all corporate
power and authority to carry on their businesses as now being
conducted and to own, lease and operate their properties. Each other
member of the SEACOR Affiliated Group is duly organized under the laws
of the jurisdiction of its organization and has all the requisite
power and authority under the laws of such jurisdiction to carry on
its business as now being conducted and to own its properties. Each
member of the SEACOR Affiliated Group is duly qualified to do business
and is in good standing in each state and foreign jurisdiction in
which the character or location of the properties owned or leased by
it or the nature of the business conducted by it makes such
qualification necessary, except where the failure to be so qualified
or in good standing would not have a Material Adverse Effect on
SEACOR.
Section 5.2. Capitalization. The authorized capital stock of
--------------
SEACOR consists exclusively of 20,000,000 shares of common stock, $.01
par value per share, of which 13,126,882 shares were issued and
outstanding and 55,768 shares were held in its treasury as of December
16, 1996. As of December 16, 1996 the number of shares of SEACOR
Common Stock issuable upon conversion or exercise of securities issued
by SEACOR or any Subsidiary thereof or any option, warrant or other
right to acquire the same, was not in excess of 3,100,000. All of
such issued and outstanding shares have been validly issued, are fully
paid and nonassessable and were issued free of preemptive rights, in
compliance with any rights of first refusal, and in compliance with
all legal requirements.
Section 5.3. Authority; Enforceable Agreements. (a) Each of
---------------------------------
the Purchasers has the requisite corporate power and authority to
enter into this Agreement and to consummate the transactions
contemplated hereby. The execution and delivery of this Agreement by
each of the Purchasers and the consummation by each of the Purchasers
of the transactions contemplated hereby have been duly authorized by
all necessary corporate action on the part of the Purchasers.
(b) This Agreement has been duly executed and delivered by
each of the Purchasers, and (assuming due execution and delivery by
the other parties hereto) constitutes a valid and binding obligation
of each of the Purchasers, enforceable against each of the Purchasers
in accordance with its terms, except as such enforceability may be
limited by bankruptcy, insolvency, reorganization or similar laws
affecting creditors' rights generally. The other agreements and
instruments entered, or to be entered, into by any of the Purchasers
in connection with this Agreement have been, or will be, duly executed
and delivered by such Purchasers and (assuming due execution and
delivery by the other parties thereto) constitute, or will constitute,
valid and binding obligations of such Purchasers, enforceable against
such Purchasers in accordance with their terms, except as such
enforceability may be limited by bankruptcy, insolvency,
reorganization or similar laws affecting creditors' rights generally.
Section 5.4. No Conflicts or Consents. (a) Neither the
------------------------
execution, delivery nor performance of this Agreement by any of the
Purchasers nor the consummation of the transactions contemplated
hereby (i) violate, conflict with, or result in a breach of any
provision of, constitute a default (or an event that, with notice or
lapse of time or both, would constitute a default) under, result in
the termination of, or accelerate the performance required by, or
result in the creation of any adverse claim against any of the
properties or assets of any member of the SEACOR Affiliated Group
under (A) the certificates of incorporation, by-laws or other
organizational documents of any member of the SEACOR Affiliated Group
or (B) any note, bond, mortgage, indenture, deed of trust, lease,
license, agreement or other instrument or obligation to which any
member of the SEACOR Affiliated Group is a party, or by which any of
its assets are bound, or (ii) subject to obtaining clearance under the
HSR Act, violate any order, writ, injunction, decree, judgment,
statute, rule or regulation of any governmental body to which any
member of the SEACOR Affiliated Group is subject or by which any of
its assets are bound.
(b) No consent, approval, order, permit or authorization
of, or registration, declaration or filing with, any Person or of any
government or any agency or political subdivision thereof is required
for the execution, delivery and performance by any of the Purchasers
of this Agreement and the covenants and transactions contemplated
hereby or for the execution, delivery and performance by any of the
Purchasers of any other agreements entered, or to be entered, into by
any of the Purchasers in connection with this Agreement, except for
(i)
the filing of the HSR Report by SEACOR under the HSR Act and the early
termination or expiration of applicable waiting periods thereunder and
(ii) notification to the Social Economic Council of The Netherlands.
Section 5.5. Indenture; Enforceability; No Conflicts or
------------------------------------------
Consents. (a) SEACOR had the requisite corporate power and authority
--------
to enter into the Indenture and to consummate the transactions
contemplated thereby. The execution and delivery of the Indenture by
SEACOR and the consummation by SEACOR of the transactions contemplated
thereby were duly authorized by all necessary corporate action on the
part of SEACOR.
(b) The Indenture was duly executed and delivered by
SEACOR, and (assuming due execution and delivery by the Trustee)
constitutes a valid and binding obligation of SEACOR, enforceable
against it in accordance with its terms, except as such enforceability
may be limited by bankruptcy, insolvency, reorganization or similar
laws affecting creditors' rights generally.
(c) Neither the execution, delivery nor performance of the
Indenture by SEACOR nor the consummation of the transactions
contemplated thereby (i) violate, conflict with, or result in a breach
of any provision of, constitute a default (or an event that, with
notice or lapse of time or both, would constitute a default) under,
result in a termination of, or accelerate the performance required by,
or result in the termination of, or accelerate the performance
required by, or result in the creation of any adverse claim against
any of the properties or assets of any member of the SEACOR Affiliated
Group under (A) the certificates of incorporation, by-laws or other
organizational documents of any member of the SEACOR Affiliated Group
or (B) any note, bond, mortgage, indenture, deed of trust, lease,
license, agreement or other instrument or obligation to which any
member of the SEACOR Affiliated Group is subject or by which any of
its assets are bound.
Section 5.6. Corporate Documents. SEACOR has delivered to SMIT
-------------------
true and complete copies of the certificate of incorporation and by-
laws, or other similar organizational documents, as amended or
restated through the Closing Date of each of the Purchasers.
Section 5.7. SEC Documents; Financial Statements; Liabilities.
------------------------------------------------
(a) SEACOR has filed all required reports, schedules, forms,
statements and other documents with the SEC since December 31, 1993
(the "SEACOR SEC Documents"). As of
their respective dates, the SEACOR SEC Documents complied as to form
in all material respects with the requirements of the Securities Act
or the Exchange Act, as the case may be, and the rules and regulations
of the SEC promulgated thereunder applicable to such SEACOR SEC
Documents, and none of the SEACOR SEC Documents contained any untrue
statement of a material fact or omitted to state a material fact
required to be stated therein or necessary in order to make the
statements therein, in light of the circumstances under which they
were made, not misleading.
(b) The SEACOR Financial Statements included in the SEACOR
SEC Documents have been prepared in accordance with GAAP applied on a
basis consistent with prior periods, and present fairly the financial
position of SEACOR and its Subsidiaries at the dates of the balance
sheets included therein and the results of operations and cash flows
for the periods then ended, except, in the case of the SEACOR Interim
Financial Statements, as permitted by Rule 10-01 of Regulation S-X of
the SEC. The SEACOR Interim Financial Statements reflect all
adjustments (consisting only of normal recurring adjustments) that are
necessary for a fair statement of the results for the interim periods
presented therein. No member of the SEACOR Affiliated Group has, nor
are any of their respective assets subject to, any liability,
commitment, debt or obligation (of any kind whatsoever whether
absolute or contingent, accrued, fixed, known, unknown, matured or
unmatured), except (i) as and to the extent reflected on the SEACOR
Latest Balance Sheet, (ii) as may have been incurred or may have
arisen since the date of the SEACOR Latest Balance Sheet in the
ordinary course of business and that are not material individually or
in the aggregate or (iii) as permitted by this Agreement.
Section 5.8. Absence of Certain Changes or Events. Except as
------------------------------------
set forth on Schedule 5.8, since the date of the SEACOR Latest Balance
Sheet, each member of the SEACOR Affiliated Group has conducted its
business only in the ordinary course, and has not:
(a) amended its certificate of incorporation, by-laws or
similar organizational documents;
(b) merged or consolidated with another Person (other than
a subsidiary) or acquired or agreed to acquire any Person, or sold,
leased, transferred or otherwise disposed of any material portion of
its assets except for fair value in the ordinary course of business;
(c) suffered any damage, destruction or loss (whether or
not covered by insurance) which has had or could reasonably be
expected to have a Material Adverse Effect on the SEACOR Affiliated
Group; or
(d) declared or paid any dividend or made any distribution
with respect to any of its equity interests, or redeemed, purchased or
otherwise acquired any of its equity interests, or issued, sold or
granted any equity interests or any option, warrant or other right to
purchase or acquire any such interest or effected any split or
reclassification thereof other than (i) grants of stock options or
restricted stock and issuances of shares of SEACOR Common Stock upon
the exercise of stock options or conversion of any outstanding
convertible securities, (ii) the acceptance by SEACOR of any shares in
consideration of the exercise of any stock options or in satisfaction
of any tax or tax withholding obligations of the holders of such
options, and (iii) payments within the SEACOR Affiliated Group by
entities other than SEACOR as part of its cash management program; or
(e) agreed, whether or not in writing, to do any of the
foregoing.
Section 5.9. Contracts. Except as set forth on Schedule 5.9,
---------
each Contract which any member of the SEACOR Affiliated Group is a
party that would be required to be filed as an exhibit to a report,
schedule, form, statement or other document filed by SEACOR with the
SEC (each a "SEACOR Material Contract") has been so filed and, except
as set forth on Schedule 5.8, between the date of the filing of its
most recent Quarterly Report on Form 10-Q and the Closing Date, SEACOR
has not entered into any SEACOR Material Contract other than this
Agreement. No member of the SEACOR Affiliated Group has breached, nor
is there any pending or, to the knowledge of SEACOR, threatened, claim
that it has breached, any of the terms or conditions of any of its
Material Contracts and, to the knowledge of SEACOR, no other parties
to any such Material Contract have breached any of its terms or
conditions.
Section 5.10. Litigation. Except as disclosed in a SEACOR SEC
----------
Document or listed on Schedule 5.10, there are no actions, suits,
proceedings, arbitrations or investigations pending or, to the
knowledge of SEACOR, threatened, before any court, any governmental
agency or instrumentality or any arbitration panel, against or
affecting any member of the SEACOR Affiliated Group or, to the
knowledge of SEACOR, any of the directors or officers of the
foregoing, that would have a Material Adverse Effect on SEACOR. To
the knowledge of SEACOR, no facts or circumstances exist that would be
likely to result in the filing of any such
action. No member of the SEACOR Affiliated Group is subject to any
currently pending judgment, order or decree entered in any lawsuit or
proceeding.
Section 5.11. Legality, etc. of SEACOR Securities. The SEACOR
-----------------------------------
Common Stock to be issued pursuant to this Agreement or upon
conversion of the SEACOR Convertible Note, when issued and delivered
in accordance with the terms hereof, will be duly authorized, validly
issued, fully paid and non-assessable, and free of pre-emptive rights,
in compliance with any rights of first refusal and in compliance with
all legal and NYSE requirements. The SEACOR Convertible Note to be
issued pursuant to this Agreement, when issued and delivered in
accordance with the terms hereof, will be duly authorized, validly
issued and free of pre-emptive rights, in compliance with any rights
of first refusal and in compliance with all legal and NYSE
requirements and all requirements of the Indenture and will be
entitled to the benefits of the Indenture. The issuance of the SEACOR
Common Stock and the SEACOR Convertible Note as aforesaid will not
result in any downward adjustment of any conversion or exercise price,
or any upward adjustment of any conversion or exercise ratio, or any
similar event, with respect to any securities issued by SEACOR or any
Subsidiary thereof or any option, warrant or other right to acquire
the same. The Additional Purchase Price Note to be issued pursuant to
this Agreement, when issued and delivered in accordance with the terms
hereof, will be duly authorized and validly issued and will be
entitled to the benefits of the SEACOR Guaranty, which will be duly
authorized and validly issued. At all times from and after the
execution and delivery thereof, there has not existed, nor has the
trustee or any holder of notes under the Indenture given notice to
SEACOR of, any "Default" or "Event of Default" under the Indenture and
(ii) the conversion price has not been adjusted pursuant to Section
13.05 of the Indenture.
Section 5.12. Broker's and Finder's Fee. No agent, broker,
-------------------------
Person or firm acting on behalf of SEACOR is or will be entitled to
any commission or broker's or finder's fee from any of the parties
hereto, or from any Affiliate of the parties hereto, in connection
with any of the transactions contemplated herein.
ARTICLE 6.
DELIVERIES AT CLOSING
Section 6.1. Deliveries by the Sellers. At the Closing, the
-------------------------
Sellers shall deliver or cause to be delivered to the Purchasers the
following:
(a) Copies of all governmental and other material third-
party consents, including Environmental Permits, and approvals, if
any, necessary to permit the consummation of the transactions
contemplated by this Agreement, including, but not limited to, the
transfer or obtaining of all material permits, or to permit the
continued operation of the business of the SMIT Group in relation to
the Business in substantially the same manner after the Closing Date
as immediately prior to the Closing Date and otherwise consistent with
the provisions of this Agreement.
(b) Subject to Section 6.3, bills of sale, executed and
delivered by each of the Sellers, in recordable form in the
jurisdictions in which each vessel to be sold is registered or to be
registered and, if requested by SEACOR, a deletion certificate for any
such vessel.
(c) The assignment and assumption agreement, executed and
delivered by each of the Sellers, substantially in the form of Exhibit
F hereto with respect to the Assigned Contracts (collectively, the
"Assignment and Assumption Agreement").
(d) The Registration Rights Agreement executed and
delivered by Smit Internationale Overseas B.V.
(e) The services agreement substantially in the form of
Exhibits G-1 and G-2 hereto (the "Management Services Agreements")
executed and delivered by SMIT and its Subsidiaries party thereto.
(f) The salvage and maritime contracting agreement
substantially in the form of Exhibit H hereto (the "Salvage and
Maritime Contracting Agreement") executed and delivered by SMIT and
its Subsidiaries party thereto.
(g) The license agreement substantially in the form of
Exhibit I hereto (the "License Agreement") executed and delivered by
SMIT.
(h) The bareboat charter agreement or agreements relating
to the vessels Xxxx Xxxxx "Fame" and Xxxx Xxxxx "Fortune"
substantially in the form of Exhibit J hereto (the "Bareboat Charter
Agreement") executed and delivered by SMIT and its Subsidiaries party
thereto.
(i) The joint venture agreement substantially in the form
of Exhibit K hereto (the "Joint Venture Agreement") executed by SMIT
and its Subsidiaries party thereto.
(j) Subject to Section 6.3, all stock certificates
representing all of the shares of capital stock of the JV Companies
owned by the Sellers, accompanied by stock powers duly executed in
blank or duly executed instruments of transfer with all necessary
stock transfer and other documentary stamps attached.
(k) The joint written instructions with SEACOR to the
Escrow Agent pursuant to Section 4 of the Escrow Agreement executed
and delivered by SMIT.
Section 6.2. Deliveries by the Purchasers. At the Closing, the
----------------------------
Purchasers shall deliver or cause to be delivered to the Sellers the
following:
(a) Copies of all governmental and other material consents
and approvals, if any, necessary to permit the consummation of the
transactions contemplated by this Agreement.
(b) Subject to Section 6.3, the Assignment and
Assumption Agreement, the Registration Rights Agreement, the
Management Services Agreements, the Salvage and Maritime Contracting
Agreement, the License Agreement, the Bareboat Charter Agreement and
the Joint Venture Agreement, each executed by the applicable
Purchasers.
(c) The joint written instructions with SMIT to the Escrow
Agent pursuant to Section 4 of the Escrow Agreement executed and
delivered by SMIT.
Section 6.3. Certain Closing Matters.
-----------------------
(a) Contemporaneously with the Closing, the parties shall,
and shall use their best efforts to cause a designated notary to,
execute and deliver in The Netherlands notarial deeds relating to the
transfer of Vessel Assets under Dutch flag.
(b) In accordance with Section 8.8 hereof, the Sellers
intend to take the actions set forth in a letter from SMIT to SEACOR
dated December 19, 1996 delivered at the Closing and make specific
reference to this Section 6.3(b) for the purpose of transferring title
to the Sellers' interests in the JV Companies to the applicable
Purchasers as contemplated hereby.
(c) Notwithstanding anything to the contrary contained in
this Agreement, (i) the closing of the sale and purchase (the "Chilean
Closing") of the Sellers' interest in Ultragas (the "Ultragas
Interest") shall take place on the Chilean Closing
Date, (ii) the number of shares of SEACOR Common Stock deliverable at
the Closing shall be reduced by 31,517, representing the number of
such shares allocated to the Ultragas Interest on Schedule 3.5(a), and
no instruments evidencing the transfer of the Ultragas Interest shall
be delivered by the Sellers at the Closing, (iii) such shares shall be
delivered to SMIT International Overseas B.V., at the direction and
for the benefit of the applicable Seller, on the Chilean Closing Date
against delivery to the applicable Purchaser of such evidence of the
transfer of the Ultragas Interest to such Purchaser as shall be
reasonably satisfactory to such Purchaser, (iv) all representations
and warranties of the Sellers with respect to the Ultragas Interest or
Ultragas contained herein shall be deemed to have been made at both
the Closing Date and the Chilean Closing Date, (v) any Assumed
Liabilities with respect to the Ultragas Interest shall be assumed by
the applicable Purchaser as of the Chilean Closing Date, and (vi) in
the event that the Chilean Closing does not occur on the Chilean
Closing Date (or such other date as SMIT and SEACOR may otherwise
agree upon), without limiting any Person's rights or remedies for
breach of contract in connection therewith, this Agreement shall be
amended to properly adjust the Additional Purchase Price payable
hereunder and to otherwise reflect the exclusion of such asset from
the purchase and sale transactions contemplated hereby.
ARTICLE 7.
INDEMNIFICATION AND RELATED MATTERS
Section 7.1. Indemnification. (a) The Sellers agree to
---------------
indemnify and hold the Purchasers harmless from and against any and
all liabilities, obligations, damages, losses, deficiencies, costs,
penalties, interest and expenses (collectively, "Losses") arising out
of, based upon, attributable to or resulting from:
(i) any misrepresentation, breach of warranty or non-ful-
fillment of any agreement on the part of the Sellers under
the terms of this Agreement or the Bills of Sale or the
Assignment and Assumption Agreements (collectively, the
"Related Documents");
(ii) the failure of the Sellers to pay or discharge any
Retained Liabilities; and
(iii) all actions, suits, proceedings, demands,
assessments, judgments, costs, penalties and expenses,
including reasonable attorneys' fees, incident to the
foregoing.
(b) The Purchasers agree to indemnify and hold the Sellers
harmless from and against any and all Losses arising out of, based
upon, attributable to or resulting from:
(i) any misrepresentation, breach of warranty or non-
fulfillment of any agreement on the part of the Purchasers
under the terms of this Agreement or any of the Related
Documents;
(ii) any claim that arises from the Purchasers' ownership
of the Owned Vessels or ownership of equity interests in, or
operation of the JV Companies subsequent to the Closing
Date;
(iii) the failure of the Purchasers to pay or discharge any
liabilities expressly assumed by the Purchasers pursuant to
Section 3.3 hereof;
(iv) the failure of any member of the SEACOR Affiliated
Group that uses the name "Smit" in its corporate name or its
business to pay or discharge any liabilities arising out of
or based upon any business or activities thereof other than
the Business and other than any transaction contemplated
hereby, in each case to the extent that liability therefor
shall have been improperly asserted against SMIT or an
Affiliate thereof; and
(v) all actions, suits, proceedings, demands, assessments,
judgments, costs, penalties and expenses, including
reasonable attorneys' fees, incident to the foregoing.
Section 7.2. Procedures for Indemnification. Whenever a claim
------------------------------
shall arise for indemnification under Section 7.1 of this Agreement
(with the exception of claims for litigation expenses in respect of a
litigation as to which a notice of claim, as provided below in this
Section 7.2, has previously been given, which expenses shall be funded
on an ongoing basis), the party entitled to indemnification (the
"Indemnified Party") shall promptly notify the party from whom
indemnification is sought (the "Indemnifying Party") of such claim
and, when known, the facts constituting the basis for such claim;
provided, however, that in the event of any claim for indemnification
-------- -------
hereunder resulting from or in connection with any claim or legal
proceedings by a third party (a "Third Party Assertion"), the
Indemnified Party shall give such notice thereof to the Indemnifying
Party not later than ten (10) business days prior to
the time any response to the Third Party Assertion is required, if
possible, and in any event within five (5) Business Days following
receipt of notice thereof. In the event of any such claim for
indemnification resulting from or in connection with a Third Party
Assertion, the Indemnifying Party may, at its sole cost and expense,
assume the defense thereof; provided, however, that the Indemnifying
-------- -------
Party shall first have agreed in writing that it does not and will not
contest its responsibility for indemnifying the Indemnified Party in
respect of Losses, attributable to such Third Party Assertion in
accordance with the terms hereof. If an Indemnifying Party assumes
the defense of any such Third Party Assertion, the Indemnifying Party
shall be entitled to select counsel, which counsel shall be reasonably
acceptable to the Indemnified Party, be obligated to pay the
reasonable costs (including reasonable attorney's fees and expenses)
incurred by the Indemnified Party in defending such Third Party
Assertion between the date of the commencement of such Third Party
Assertion and the date of the Indemnifying Party's assumption of such
defense and take all steps necessary in the defense thereof; provided,
--------
however, that no settlement shall be made without the prior written
-------
consent of the Indemnified Party, which consent shall not be
unreasonably withheld (and if the Indemnified Party shall withhold its
consent to any monetary settlement proposed by the Indemnifying Party
and which the other party to the action has indicated it is prepared
to accept, the Indemnified Party shall in no event be deemed for
purposes of this Agreement to have suffered Losses in connection with
such claim or proceeding in excess of the proposed amount of such
settlement); provided, further, that the Indemnified Party may, at its
-------- -------
own expense, participate in any such proceeding with the counsel of
its choice without any right of control thereof. So long as the
Indemnifying Party is in good faith defending such Third Party
Assertion, the Indemnified Party shall not compromise or settle such
claim without the prior written consent of the Indemnifying Party,
which consent shall not be unreasonably withheld. If the Indemnifying
Party does not assume the defense of any such Third Party Assertion in
accordance with the terms hereof, the Indemnified Party may defend
against such Third Party Assertion in such manner as it may deem
appropriate, including, but not limited to, settling such Third Party
Assertion (after giving prior written notice of the same to the
Indemnifying Party and obtaining the prior written consent of the
Indemnifying Party, which consent shall not be unreasonably withheld)
on such terms as the Indemnified Party may deem appropriate, and the
Indemnifying Party will promptly indemnify the Indemnified Party in
accordance with the provisions of this Section 7.2; provided, however,
-------- -------
that if the Indemnified Party does not obtain the prior written
consent of the Indemnifying Party to any such settlement,
and such written consent is not unreasonably withheld by the
Indemnifying Party, the Indemnified Party shall not be entitled to
indemnification hereunder from such Indemnifying Party with respect to
the claim settled.
Section 7.3. Certain Limitations on Remedies. (a) Neither the
-------------------------------
Sellers nor the Purchasers shall have any liability under this Article
7 unless the aggregate amount of Damages to the party (and/or its
Affiliates) seeking indemnification under this Article 7 exceeds
$100,000 in the aggregate (in which event such party shall have
liability for the total amount of Damages, including the first
$100,000).
(b) The aggregate liability of the Sellers under this
Article 7 shall be limited to the value of 50% of the Purchase Price
paid by the Purchasers, and the aggregate liability of the Purchasers
under this Article 7 shall be limited to such value; provided,
--------
however, to the extent that such liabilities for the Purchasers or
-------
Sellers exceed in the aggregate 50% of the Initial Purchase Price,
such liabilities shall not be payable by the Purchasers or Sellers, as
applicable, unless and until the Additional Purchase Price is paid
hereunder and, provided further, to the extent that , in the case of
-------- -------
the Sellers, such liabilities exceed in the aggregate the amount of
cash paid to the Sellers as part of the Purchase Price hereunder, the
Sellers may transfer to the Purchasers in satisfaction of such
liabilities shares of SEACOR Common Stock and/or all or a portion of
the SEACOR Convertible Note and/or all or a portion of the Additional
Purchase Price Note, with shares of SEACOR Common Stock being valued
for this purpose at $49.16 per share (as properly adjusted to reflect
any stock split, subdivision, combination, reclassification, merger or
similar event) plus accrued but unpaid dividends and other
distributions thereon and with the SEACOR Convertible Note (or portion
thereof) and the Additional Purchase Price Note (or portion thereof)
being valued at its principal amount plus accrued but unpaid interest
thereon.
(c) The aggregate liability of the Sellers under this
Article 7 for all Losses in respect of any representations or
warranties with respect to a JV Company or an Owned Vessel shall be
limited to the amount of the Purchase Price allocated to such JV
Company or Owned Vessel on Schedule 3.5; provided, however, that such
-------- -------
aggregate liability with respect to Supplylink (U.K.) Ltd. and
Supplylink International B.V. shall be limited to $2,000,000.
(d) Notwithstanding the foregoing, the limitations of this
Section 7.3 shall not limit, restrict or impair any claim
(A) by the Sellers or the Purchasers or their respective Affiliates
against the other for indemnification pursuant to this Article 7
relating to or arising out of any Third Person Assertion, (B) by the
Purchasers or any of their Affiliates against the Sellers for
indemnification pursuant to this Article 7 relating to or arising out
of clauses (ii) and (iii) (to the extent relating to matters covered
by clause (ii)) of Section 7.1(a) or (C) by the Sellers or any of
their Affiliates against the Purchasers for indemnification pursuant
to this Article 7 relating to or arising out of clauses (ii), (iii),
(iv) and (v) (to the extent relating to matters covered by clause
(ii), (iii) or (iv)) of Section 7.1(b).
(e) Notwithstanding anything to the contrary contained in
this Article 7, there shall be no right to indemnification under this
Article 7 in respect of any Losses to the extent that an adjustment
has been made therefor under Section 3.6.
(f) Each party shall use, and shall cause its Affiliates to
use, commercially reasonable efforts to mitigate any and all Losses in
respect of which it or its Affiliates may be entitled to
indemnification hereunder.
Section 7.4. Exclusivity. The remedy of indemnification
-----------
pursuant to this Article 7 shall be the sole and exclusive remedy of
the Purchasers and the Sellers for Losses arising out of any breach,
violation or failure to comply with the terms of this Agreement or the
Related Documents or transactions effected thereby.
Section 7.5. Survival. All covenants and all representations and
--------
warranties contained herein shall survive indefinitely the execution
and delivery of this Agreement, the Closing and the completion of the
transactions contemplated herein, regardless of any investigation made
by the parties hereto; provided, however, that (i) the representations
-------- -------
and warranties of the Sellers contained in Article 4 hereof (other
than those contained in Sections 4.2, 4.3, 4.5 and 4.12) and the
representations and warranties of the Purchasers contained in Article
5 hereof (other than those contained in Sections 5.1, 5.2, 5.3, 5.5,
5.6 and 5.11) shall expire on December 31, 1998. From and after the
expiration of such respective representations and warranties of the
Sellers and the Purchasers in accordance with the immediately
preceding sentence, none of the Sellers or the Purchasers or any of
their respective Affiliates shall be under any liability whatsoever
with respect to any such representation or warranty or any obligation
or liability based upon such representation or warranty, except for
breaches as to
which a party shall have given notice (specifying with reasonable
particularity facts establishing such breach) to the other parties
prior to the expiration date. This Section 7.5 shall have no effect
upon any other obligation of the parties hereto.
Section 7.6. Confidentiality. (a) Between the Closing Date and
---------------
the third anniversary of such date, the Purchasers and their
Affiliates will hold, and will use their best efforts to cause their
respective officers, directors, employees, accountants, counsel,
consultants, advisors and agents to hold, in confidence, unless
compelled to disclose by judicial or administrative process or by
other requirements of law, all confidential documents and information
concerning the Sellers furnished to the Purchasers or their Affiliates
in connection with the transactions contemplated by this Agreement,
except to the extent that such information can be shown to have been
(i) previously known on a nonconfidential basis by the Purchasers,
(ii) in the public domain through no fault of the Purchasers or
(iii) later lawfully acquired by the Purchasers from sources other
than the Sellers; provided, however, that the Purchasers may disclose
-------- -------
such information to their officers, directors, employees, accountants,
counsel, consultants, advisors and agents in connection with the
transactions contemplated by this Agreement, so long as such Persons
are informed by the Purchaser of the confidential nature of such
information and are directed by the Purchasers to treat such
information confidentially. The obligation of the Purchasers and
their Affiliates to hold any such information in confidence shall be
satisfied if they exercise the same care with respect to such
information as they would take to preserve the confidentiality of
their own similar information.
(b) Between the Closing Date and the third anniversary of
such date, the Sellers and their Affiliates will hold, and will use
their best efforts to cause their respective officers, directors,
employees, accountants, counsel, consultants, advisors and agents to
hold, in confidence, unless compelled to disclose by judicial or
administrative process or by other requirements of law, (i) all
confidential documents and information concerning the Purchasers
furnished to the Sellers or their Affiliates in connection with the
transactions contemplated by this Agreement and (ii) with respect to
the Business, all confidential documents and information in their
possession, except to the extent that, with respect to the information
referred to in clause (i) above, such information can be shown to have
been (i) previously known on a nonconfidential basis by the Sellers,
(ii) in the public domain through no fault of the Sellers or
(iii) later lawfully acquired by the Sellers from sources other than
the Purchaser;
provided, however, that the Sellers may disclose such information to
-------- -------
its officers, directors, employees, accountants, counsel, consultants,
advisors and agents in connection with the transactions contemplated
by this Agreement, so long as such Persons are informed by the Sellers
of the confidential nature of such information and are directed by the
Sellers to treat such information confidentially. The obligation of
the Sellers and their Affiliates to hold any such information in
confidence shall be satisfied if they exercise the same care with
respect to such information as they would take to preserve the
confidentiality of their own similar information.
ARTICLE 8.
CERTAIN COVENANTS
Section 8.1. Non-Competition. (a) SMIT agrees that it shall
---------------
not, and shall cause its Subsidiaries not to, compete with Purchaser
for the period of 36 months from and after the Closing Date. During
such period, SMIT and its Subsidiaries shall not, without the prior
written consent of SEACOR, market "Offshore Vessels" (as hereinafter
defined), whether owned or chartered-in, for use in (i) transporting
supplies, materials, waste and personnel to and from rigs engaged in
offshore oil and gas exploration and production, (ii) interfield and
intrafield towing of semi-submersible rigs and pipeline barges, (iii)
providing standby safety services or (iv) supporting seismic or
geophysical research and activity (collectively, "Offshore Vessel
Services"). Further, during such period SMIT and its Subsidiaries
shall not, directly or indirectly, acquire or construct any new
Offshore Vessels and shall not, directly or indirectly, operate or
manage Offshore Vessels for third parties, excluding any vessels which
are the subject of such vessel management agreements in force as of
October 14, 1996 and as listed on Schedule 8.1(a). If during such 36-
month period, SMIT and its Subsidiaries were to take any action which,
directly or indirectly, would put it in competition with SEACOR, or
result in managing Offshore Vessels or providing technical services
for Offshore Vessels for any party other than the Purchasers or those
vessels under management on October 14, 1996, in addition to any other
rights the Purchaser may have in law or in equity, the Purchasers
shall have the right to terminate any and all management or technical
services agreements with Sellers or any of their Affiliates.
(b) As used in this Section 8.1, the term "Offshore Vessel"
shall refer to platform supply vessels, offshore supply vessels,
towing supply vessels, anchor handling supply vessels,
crew boats, as those terms are commonly used in the offshore trades.
(c) SEACOR agrees that it shall not, and shall cause its
Subsidiaries not to, compete with the SMIT or its Subsidiaries for the
period of 36 months from and after the Closing Date. During such
period, SEACOR and its Subsidiaries shall not, without the prior
written consent of SMIT, market Offshore Vessels, whether owned or
chartered in, for use in maritime salvage activities, either on any
form of "no cure-no pay" salvage agreement, or under any common law or
statute, or under any form of wreck removal contract; provided,
--------
however, in the event that SEACOR or any of its Subsidiaries acquires
-------
a Person or business which includes, but a majority of the fair value
of which on the date of acquisition does not relate to, the operation
of a maritime salvage business, the restrictions contained in this
Section 8.1(c) shall not apply to the operation of such maritime
salvage business (including any growth in such business following such
acquisition) and, provided, further, the restrictions contained in
-------- -------
this Section 8.1(c) shall not apply to any maritime salvage activities
that may be engaged in or contracted for by SEACOR or its Subsidiaries
under the terms of the Salvage and Maritime Contracting Agreement.
Section 8.2. Nomination of SMIT's Board Designee. With respect
-----------------------------------
to the year 1997 and any subsequent year thereafter at the beginning
of which SMIT and its Affiliates collectively beneficially own the
Requisite Amount (as defined below), SEACOR shall use reasonable
commercial efforts (whether or not any dispute shall be pending with
respect to this Agreement or any of the transactions contemplated
hereby) to nominate, support the election of and cause the election of
one person designated by SMIT to serve on SEACOR's Board of Directors,
which designation shall be made by SMIT by written notice to SEACOR
after prior consultation with SEACOR. For purposes hereof, SMIT and
its Affiliates shall collectively beneficially own the Requisite
Amount on any date if the number of shares of SEACOR Common Stock
beneficially owned by SMIT and its Affiliates on such date plus the
number of shares of SEACOR Common Stock issuable upon conversion of
the SEACOR Convertible Note owned by SMIT and its Affiliates on such
date equals at least 5% of all the shares of SEACOR Common Stock
outstanding on such date.
Section 8.3. SEACOR Form 8-K Information. The Sellers agree to
---------------------------
provide to SEACOR, not later than 30 days after the Closing Date, all
financial and other information with respect to the Sellers' Business,
Acquired Assets and the JV Companies for any Pre-Closing Period as
shall be necessary, in the reasonable
judgment of SEACOR, its accountants or its counsel, for inclusion in
any Current Report on Form 8-K, or any amendment thereto, to be filed
by SEACOR with the SEC in respect of the transactions contemplated
hereby.
Section 8.4. Offers of Employment. All of the employees of the
--------------------
Sellers who are listed on Schedule 8.4 were offered employment with
one of the Purchasers as of the Closing Date upon terms and conditions
similar to those of other employees of the Purchasers of their
Affiliates in like positions in comparable geographic regions. The
Purchasers reserve the right to specify the physical location of such
employment.
Section 8.5. Certain Assignments. To the extent that (i) any of
-------------------
the Contracts or other intangible assets used in the Business would
terminate or be terminable at the election of another Person if
assigned to a Purchaser or Purchasers as contemplated by this
Agreement, as the case may be, without the consent of another Person,
or (ii) the assignment of Contracts or other intangible assets
pursuant to this Agreement would violate applicable law, this
Agreement shall not be deemed (nor shall it be deemed to require) an
assignment or an attempted assignment thereof if such consent shall
not have been obtained or if compliance with applicable law shall not
have been effected, as the case may be, prior to the Closing. In such
event, the Sellers agree to cooperate with the Purchasers in
subsequently seeking such consent or compliance and, until and unless
such consent or compliance is obtained, in any reasonable arrangements
designed to provide to the Purchasers after the Closing the benefits
under any such Contract or intangible asset, including by consenting
to the enforcement by any of the Purchasers, in the name of any of the
Sellers, of any and all rights of the Sellers against each other party
thereto. To the extent that the Buyer is provided the net benefits,
pursuant to this Section 8.5 of any Contract or intangible asset
(which shall be equal to the gross revenues derived from such Contract
or intangible asset less the (i) reasonable out-of-pocket costs and
other costs and expenses directly attributable to the provision of
services or the performance of other obligations under such Contract
or intangible right), the Purchasers shall perform for the benefit of
the other party or parties thereto the obligations of the Sellers
thereunder or in connection therewith. Nothing contained in this
Section 8.6 shall limit or restrict the Purchasers from obtaining
indemnification hereunder for Losses to the extent that the
arrangements made or benefits obtained pursuant to this Section 8.6 do
not provide the economic equivalent to the Purchasers of having
obtained the requisite consents.
Section 8.6. Certain Guarantees. (a) SEACOR hereby guarantees
------------------
the due and punctual performance by each of the Purchasers of all such
Purchaser's obligations under this Agreement and agrees that Sellers
need not pursue any remedy against any such Purchaser for breach of
this Agreement prior to proceeding directly against SEACOR hereunder.
(b) SMIT hereby guarantees that due and punctual
performance by each of the Sellers of all of such Seller's obligations
under this Agreement and agrees that Purchasers need not pursue any
remedy against any such Seller for breach of this Agreement prior to
proceeding directly against SMIT hereunder.
Section 8.7. Limitation on Representations. Except as set forth
-----------------------------
in this Agreement, no representations, warranties or guaranties have
been, are being or shall be made by any Seller as to the quality,
condition, character, size, quantity, type, earnings, revenues,
expenses, suitability or value of any of the Acquired Assets or any of
the JV Companies or any of the subsidiaries thereof or any of the
properties owned, leased or used by any of the JV Companies or any of
the subsidiaries thereof and ALL REPRESENTATIONS, WARRANTIES OR
GUARANTIES IMPLIED OR OTHERWISE CREATED UNDER ANY APPLICABLE LAW ARE
EXPRESSLY DISCLAIMED BY THE SELLERS. Without limiting the generality
of the foregoing, no representations, warranties or guaranties have
been, are being or shall be made by any Seller as to any offering or
descriptive materials relating to the Acquired Assets or the
transactions contemplated hereby.
Section 8.8. Further Assurances by the Sellers. From time
---------------------------------
to time after the Closing Date, the Sellers will, at the request and
with the cooperation of the Purchasers, execute and deliver such other
and further instruments of sale, assignment, transfer and conveyance
and take such other and further action as the Purchasers may
reasonably request as are necessary or desirable to vest, perfect or
confirm of record in the Purchasers the title to any Acquired Assets
as contemplated hereby.
ARTICLE 9.
REGULATION S UNDERTAKINGS
Section 9.1. Compliance with United States Securities Laws.
---------------------------------------------
Each of the Sellers and, in the case of clause (iii) below, each of
the Purchasers understands and acknowledges that (i) the Securities
have not been and will not be registered under the Securities Act
(except as set forth in the Registration Rights Agreement), or under
any state securities or blue sky laws, and may not be offered, sold,
transferred, pledged or otherwise disposed of, in the United States or
to, or for the account or benefit of, any "U.S. person" (as defined in
Rule 902(o) of Regulation S) unless such Securities are registered
under the Securities Act and any applicable state securities or blue
sky laws or exemptions from the registration requirements of such laws
are available, (ii) the Securities are being offered and sold in a
manner intended to comply with the conditions contained in Regulation
S, which permits securities to be sold to persons who are not "U.S.
persons" in "offshore transactions" (as defined in Rule 902(i) of
Regulation S), subject to certain terms and conditions and (iii) none
of the Sellers is acquiring the Securities in any transaction or
series of transactions that, although in technical compliance with
Regulation S, is part of a plan or scheme to evade the registration
provisions of the Securities Act.
Section 9.2. Status of Seller. Each of the Sellers that is
----------------
acquiring Securities is acquiring such Securities for its own account
or for persons or accounts as to which it exercises investment
discretion for investment purposes only and not for any trading or
arbitrage purposes and not with a view to, or for sale in connection
with, any distribution of the Securities at any particular time or at
any particular price. Neither such Seller nor such person or account
is a "U.S. person" or is acquiring the Securities for the account or
benefit of any "U.S. person." Each of the Sellers has executed this
Agreement outside the United States, and at the time the decision to
acquire the Securities was made or communicated to the Purchasers, the
Seller was outside the United States. Each of the Sellers acquiring
Securities (and any person or account on whose behalf such Seller is
acquiring Securities) is knowledgeable, sophisticated and experienced
in making, and is qualified to make decisions with respect to
investments in restricted securities (such as the Securities) and has
requested, received, reviewed and considered all information it deems
relevant in making a decision to execute this Agreement and to
purchase the Securities. To the extent that any certificate
representing the Securities is registered in
the name of any nominee of any of the Sellers, such Seller confirms
that such nominee is acting solely as its custodian.
Section 9.3. Restrictions on Resale. For a period (the
----------------------
"Restricted Period") of forty (40) days following the Closing Date
(which Restricted Period shall expire not earlier than midnight (New
York time) on January 29, 1997) each of the Sellers that is acquiring
Securities shall not engage in any activity for the purpose of, or
which may reasonably be expected to have the effect of, conditioning
the market in the United States for the Securities, or offer, sell,
transfer, pledge or otherwise dispose of the Securities, in the United
States or to, or for the account or benefit of a "U.S. person." Each
of such Sellers understands and agrees that the Securities are only
transferable on the books and records of SEACOR and its transfer agent
and that SEACOR and the transfer agent will not register any transfer
of the Securities which the Company in good faith believes violates
the restrictions set forth herein. Any proposed offer, sale,
transfer, pledge or other disposition of any of the Securities prior
to the end of the Restricted Period shall be subject to the condition
that each of the Sellers must deliver to the Company (i) a written
certification that the Securities have not been offered or sold in the
United States or to, or for the account or benefit of, any "U.S.
person," by such Seller (ii) a written certification of the proposed
transferee that such transferee (or any account for which such
transferee is acquiring such Securities) is not a "U.S. person," is
not acquiring such Securities for the account or benefit of any "U.S.
person," is acquiring such Securities for such transferee's own
account (or an account over which it has investment discretion) for
investment purposes only and not for any trading or arbitrage purposes
and not with a view to, or for sale in connection with, any
distribution of the Securities at any particular time or at any
particular price, and that such transferee is knowledgeable of and
agrees to be bound by the provisions of Regulation S and the terms of
Section 9.3 and 9.5 of this Agreement during the Restricted Period and
(iii) a written opinion of United States legal counsel, in form and
substance satisfactory to the Company, to the effect that such offer,
sale, transfer, pledge or other disposition of such Securities is
exempt from registration under the Securities Act. Each of the
Sellers that is acquiring Securities will not, directly or indirectly,
offer, sell, pledge, transfer or otherwise dispose of (or solicit any
offers to buy, purchase or otherwise acquire or take a pledge,
transfer or otherwise dispose of (or solicit any offers to buy,
purchase or otherwise acquire or take a pledge of) its rights under
this Agreement or Securities otherwise than in compliance with the
Securities Act, any applicable state securities or blue sky laws
and any applicable securities laws of jurisdictions outside the United
States, and the rules and regulations promulgated thereunder.
Section 9.4. Sales by Sellers in the United States. Each of the
-------------------------------------
Sellers that is acquiring Securities acknowledges that if it sells all
or any part of the Securities in the United States, such Seller
(and/or certain persons who participate in any such sale) may be
deemed, under certain circumstances, to be an "underwriter" as defined
in Section 2(11) of the Securities Act. Prior to offering or selling
all or any part of the Securities in the United States each of the
Sellers that is acquiring Securities understands that it should
consult with United States legal counsel in order to determine its
liabilities and obligations under this Agreement, the Securities Act
and any applicable state securities or blue sky laws.
Section 9.5. Prohibition of Certain Trading Transactions. Each
-------------------------------------------
of the Purchasers: (i) has not engaged (and has not permitted any of
its Affiliates or any person acting on its behalf or on behalf of its
Affiliates to engage) with respect to the Securities in any "directed
selling efforts" (as defined in Regulation S) in or directed towards
the United States, (ii) has complied with all "offering restrictions"
(as defined in Rule 902(h) of Regulation S) in respect of the
Securities, (iii) has not made any offers of any of the Securities in
the United States or to, or for the account or benefit of, any "U.S.
person," and (iv) has not made any offers of any of the Securities to
any person other than the Sellers.
ARTICLE 10.
MISCELLANEOUS
Section 10.1. Notices. All notices hereunder must be in writing
-------
and will be deemed to have been duly given upon receipt of hand
delivery; certified or registered mail; return receipt requested; or
telecopy transmission with confirmation of receipt:
(a) If to the Purchasers:
c/o SEACOR Holdings, Inc.
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xx. Xxxxxxx Xxxxxxxxx
Telecopy No.: (000) 000-0000
with a copy to: Xx. Xxxxxxx Xxxxx
and to:
Weil, Gotshal & Xxxxxx LLP
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxx X. Xxxxxxx, Esq.
Telecopy No.: (000) 000-0000
(b) If to the Sellers:
c/o SMIT Internationale X.X.
Xxxxxxxxxx 0
0000 XX Xxxxxxxxx
Xxx Xxxxxxxxxxx
Attention: Xx. Xxxxxx X. Xxxxxxxx
Telecopy No.: (00) 00-000-00-00
with a copy to: Mr. Cees W.D. Bom
and to:
Sidley & Austin
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxx X. Xxxxxx, Esq.
Telecopy No.: (000) 000-0000
Such names, addresses and telecopy numbers may be changed by written
notice to each person listed above.
Section 10.2. Governing Law. This Agreement shall be governed
-------------
by, construed and interpreted 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 laws thereof. This Agreement
has been executed and delivered in Rotterdam, The Netherlands.
Section 10.3. Counterparts. This Agreement may be executed in
------------
counterparts, each of which will be deemed an original but all of
which together will constitute one and the same instrument.
Section 10.4. Interpretation. When a reference is made in this
--------------
Agreement to a Section, Exhibit or Schedule, such reference shall be
to a Section of, or an Exhibit or Schedule to, this Agreement unless
otherwise indicated. The table of contents and headings contained in
this Agreement are for reference purposes only and shall not affect in
any way the meaning or interpretation of this Agreement. Whenever the
words "include,"
"includes" or "including" are used in this Agreement, they shall be
deemed to be followed by the words "without limitation."
Section 10.5. Entire Agreement; Severability. (a) This
------------------------------
Agreement, including the Exhibits and Schedules hereto, embodies the
entire agreement and understanding of the parties hereto in respect of
the subject matter contained herein. This Agreement supersedes all
prior agreements and understandings (whether written or oral) between
the parties with respect to such subject matter, including the letter
of intent dated October 14, 1996, as amended.
(b) If any provision of this Agreement is determined to be
invalid or unenforceable, in whole or in part, it is the parties'
intention that such determination will not be held to affect the
validity or enforceability of any other provision of this Agreement,
which provisions will otherwise remain in full force and effect.
Section 10.6. Amendment and Modification. This Agreement may be
--------------------------
amended or modified only by written agreement of the parties hereto.
Section 10.7. Extension; Waiver. At any time prior to the
-----------------
Closing Date, the parties may (a) extend the time for the performance
of any of the obligations or other acts of the other parties, (b)
waive any inaccuracies in the representations and warranties contained
in this Agreement or in any document delivered pursuant to this
Agreement or (c) waive compliance with any of the agreements or
conditions contained in this Agreement. The failure of a party to
insist upon strict adherence to any term of this Agreement on any
occasion shall not be considered a waiver or deprive that party of the
right thereafter to insist upon strict adherence to that term or any
other term of this Agreement. No waiver of any breach of this
Agreement shall be held to constitute a waiver of any other or
subsequent breach. Any waiver must be in writing.
Section 10.8. Binding Effect; Benefits. This Agreement will
------------------------
inure to the benefit of and be binding upon the parties hereto and
their respective successors and assigns. Nothing in this Agreement,
express or implied, is intended to confer on any Person other than the
parties hereto and their respective successors and assigns (and, to
the extent provided in Section 7.1, the Indemnified Parties and their
successors and assigns) any rights, remedies, obligations or
liabilities under or by reason of this Agreement.
Section 10.9. Assignability. This Agreement is not assignable
-------------
by any party hereto without the prior written consent of the other
parties.
Section 10.10. Expenses. Each of the parties hereto shall pay
--------
all of its own expenses relating to the transactions contemplated by
this Agreement, including without limitation the fees and expenses of
its own financial, legal and tax advisors, except as expressly set
forth in Article 7.
Section 10.11. Gender and Certain Definitions. All words used
------------------------------
herein, regardless of the number and gender specifically used, shall
be deemed and construed to include any other number, singular or
plural, and any other gender, masculine,
feminine or neuter, as the context requires.
IN WITNESS WHEREOF, the parties hereto have duly executed this
Agreement as of the date first written above.
PURCHASERS:
SEACOR HOLDINGS, INC.
By:/s/Xxxx Xxxxxxx
-----------------------------------------------
Name: Xxxx Xxxxxxx
Title: Attorney-in-Fact
SEACOR-SMIT OFFSHORE I B.V.
By:/s/Xxxx Xxxxxxx
------------------------------------------
Name: Xxxx Xxxxxxx
Title: Attorney-in-Fact
SEACOR-SMIT (AQUITAINE) LTD.
By:/s/Xxxxx Xxxxxxx
------------------------------------------
Name: Xxxxx Xxxxxxx
Title: Vice President
SELLERS:
SMIT INTERNATIONALE N.V.
By:/s/Xxxxx Xxxxx
-----------------------------------------------
Name: Xxxxx Xxxxx
Title: Area Manager
SMIT INTERNATIONAL SINGAPORE PTE. LTD.
By:/s/Cees W.D. Bom
-----------------------------------------------
Name: Cees W.D. Bom
Title: Authorized Signatory
SMIT INTERNATIONAL (TRINIDAD) LIMITED
By:/s/Cees W.D. Bom
-----------------------------------------
Name: Cees W.D. Bom
Title: Authorized Signatory
XXXX XXXXX B.V.
By:/s/Xxxx Xxxxxx
-----------------------------------------
Name: Xxxx Xxxxxx
Title: General Manager Offshore Shipping
XXXX XXXXX BEHEER ANTILLES OFFSHORE N.V.
By:/s/Cees W.D. Bom
-----------------------------------------
Name: Cees W.D. Bom
Title: Authorized Signatory
SMIT INTERNATIONAL AMERICAS, INC.
By:/s/ Cees W.D. Bom
---------------------------------------------
Name: Cees W.D. Bom
Title: Authorized Signatory
MAASMAIN B.V.
By:/s/Xxxx Xxxxxx
---------------------------------------------
Name: Xxxx Xxxxxx
Title: General Manager Offshore Shipping
XXXX XXXXX (ANTILLES) N.V.
By:/s/Cees W.D. Bom
-----------------------------------
Name: Cees W.D. Bom
Title: Authorized Signatory
XXXX-XXXXX (U.K.) LTD.
By:/s/Cees W.D. Bom
-----------------------------
Name: Cees W.D. Bom
Title: Authorized Signatory
SMIT INTERNATIONAL GROUP (U.K.) LTD.
By:/s/Cees W.D. Bom
----------------------------------
Name: Cees W.D. Bom
Title: Authorized Signatory
XXXX-XXXXX ODIN B.V.
By:/s/Xxxx Xxxxxx
---------------------------------
Name: Xxxx Xxxxxx
Title: General Manager Offshore Shipping
AUVERGNE SHIPPING COMPANY S.A.
By:/s/Xxxxxx X. Xxxxx
----------------------------------
Name: Xxxxxx X. Xxxxx
Title: Director
BRETAGNE SHIPPING COMPANY S.A.
By:/s/Xxxxxx X. Xxxxx
----------------------------------
Name: Xxxxxx X. Xxxxx
Title: Director
LAZIO SHIPPING COMPANY S.A.
By:/s/ Xxxxxx X. Xxxxx
----------------------------------
Name: Xxxxxx X. Xxxxx
Title: Director
LOMBARDIA SHIPPING COMPANY S.A.
By:/s/ Xxxxxx X. Xxxxx
----------------------------------
Name: Xxxxxx X. Xxxxx
Title: Director
XXXXXXX SHIPPING COMPANY S.A.
By:/s/Xxxxxx X. Xxxxx
----------------------------------
Name: Xxxxxx X. Xxxxx
Title: Director
UMBRIA SHIPPING COMPANY S.A.
By:/s/Xxxxxx X. Xxxxx
----------------------------------
Name: Xxxxxx X. Xxxxx
Title: Director
NYFS11...:\93\73293\0013\1645\AGRN086A.38L
