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EXHIBIT 2.1
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STOCK EXCHANGE AGREEMENT
regarding shares in
NEWPARK SHIPBUILDING AND REPAIR, INC.
and
FIRST WAVE MARINE, INC.
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Dated as of October 16, 1997
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TABLE OF CONTENTS
1. Definitions..............................................................................................1
1.1 Defined Terms............................................................................................1
1.2 Certain Additional Defined Terms.........................................................................1
2. Exchange.................................................................................................2
3. Closing Date; Buyer Stock................................................................................2
3.1 Closing Date....................................................................................2
3.2 Buyer Stock.....................................................................................2
4. Representations and Warranties...........................................................................3
4.1 Representations and Warranties of the Sellers...................................................3
(a) Validity of Agreement; Capitalization..................................................3
(b) No Approvals or Notices Required; No Conflict with Instruments.........................3
(c) Title to Shares; Absence of Liens and Encumbrances.....................................3
(d) Certain Fees...........................................................................3
(e) Investment Representations.............................................................3
(f) No Reliance............................................................................4
4.2 Representations and Warranties of Buyer.........................................................5
(a) Due Organization; Good Standing and Power..............................................5
(b) Authorization and Validity of Agreement................................................5
(c) No Conflict with Instruments...........................................................5
(d) Certain Fees...........................................................................5
(e) No Reliance............................................................................5
(f) Legal Opinion..........................................................................5
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4.3 Survival of Representations and Warranties......................................................6
5. Additional Restrictions on Transfer of Stock.............................................................6
6. Conditions to Closing, Termination.......................................................................6
6.1 Buyer's Conditions to Closing...................................................................6
(a) Representations and Warranties.........................................................6
(b) Covenants..............................................................................6
(c) Absence of Restraint...................................................................6
(d) Certificates...........................................................................7
(e) Consummation of Transfers..............................................................7
6.2 Sellers' Conditions to Closing..................................................................7
(a) Representations and Warranties.........................................................7
(b) Covenants..............................................................................7
(c) Absence of Restraint...................................................................7
(d) Certificates...........................................................................7
(e) Consummation of Transfers..............................................................7
6.3 Termination.....................................................................................8
7. Closing..................................................................................................8
7.1 Deliveries by Buyer.............................................................................8
7.2 Deliveries by Sellers...........................................................................8
7.3 Termination of Prior Agreement Regarding Purchased Shares.......................................8
8. Indemnification..........................................................................................8
8.1 Indemnification by the Sellers..................................................................8
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8.2 Indemnification by Buyer........................................................................8
8.3 Limits on Indemnification Liability.............................................................9
9. Miscellaneous............................................................................................9
9.1 Payment of Certain Fees and Expenses............................................................9
9.2 Notices.........................................................................................9
9.3 Entire Agreement...............................................................................10
9.4 Binding Effect; Benefit........................................................................10
9.5 Assignability..................................................................................10
9.6 Amendment; Waiver..............................................................................10
9.7 Section Headings; Index........................................................................10
9.8 Severability...................................................................................10
9.9 Counterparts...................................................................................10
9.10 Applicable Law.................................................................................10
9.11 References.....................................................................................10
9.12 Dispute Resolution.............................................................................11
(a) Good Faith Negotiations...............................................................11
(b) Mediation.............................................................................11
(c) Arbitration...........................................................................11
(d) Consent to Jurisdiction; Venue........................................................11
9.13 Confidentiality................................................................................12
9.14 ▇▇▇▇▇▇ Financial...............................................................................12
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STOCK EXCHANGE AGREEMENT
This Stock Exchange Agreement (this "Agreement") is made as of October
16, 1997 by First Wave Marine, Inc., a Delaware corporation ("Buyer") and the
parties named on Schedule A, attached hereto and incorporated herein for all
purposes ("Sellers").
AGREEMENT
In consideration of the premises and of the respective
representations, warranties, covenants, agreements and conditions of the
parties contained herein, it is hereby agreed as follows:
1. Definitions.
1.1 Defined Terms. As used in this Agreement, each of the
following terms has the meaning given it below:
"Applicable Law" means any statute, law, rule or regulation
or any judgment, order, writ, injunction or decree, of any
governmental entity to which a specified person or property is
subject.
"Encumbrances" means liens, charges, pledges, options,
mortgages, deeds of trust, security interests, claims, restrictions
(whether on voting, sale, transfer, disposition or otherwise),
easements, licenses, sublicenses and other encumbrances of every type
and description, whether imposed by law, agreement, understanding or
otherwise.
"person" means any individual, corporation, partnership,
joint venture, association, joint-stock company, trust, enterprise,
unincorporated organization or governmental entity.
"reasonable best efforts" means a party's best efforts in
accordance with reasonable commercial practice and without the
incurrence of unreasonable expense.
"Restricted Stock" means Buyer Stock.
"Securities Act" means the Securities Act of 1933, as amended.
"Taxes" means any income taxes or similar assessments or any
sales, excise, occupation, use, ad valorem, property, production,
severance, transportation, employment, payroll, franchise or other tax
imposed by any United States federal, state or local, or any foreign
or provincial, taxing authority, including any interest, penalties or
additions attributable thereto.
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1.2 Certain Additional Defined Terms. In addition to such terms
as are defined in Section 1.1, the following terms are used in this Agreement
as defined in the Sections of this Agreement referenced opposite such terms:
Defined Terms Reference
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Agreement Preamble
Buyer Preamble
Buyer Stock Section 3.2
Closing Section 3.1
Closing Date Section 3.1
Damages Section 8.1
Dispositions Section 5
Dispute Section 9.12
Disputing Parties Section 9.12
Purchase Price Section 3.2
Purchased Shares Section 2
Sellers Preamble
2. Exchange. Subject to the terms and conditions of this Agreement,
Sellers shall deliver to Buyer all of Sellers' 17,000 shares in Newpark
Shipbuilding and Repair, Inc. (the "Purchased Shares"), free and clear of all
Encumbrances, solely in exchange for voting stock in Buyer as described in
Section 3.2.
3. Closing Date; Buyer Stock.
3.1 Closing Date. The closing of the transactions provided for in this
Agreement (the "Closing") shall take place at the offices of ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇,
P.C., ▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇. The date on which the
Closing takes place shall be a date before March 31, 1998 as determined by
Buyer on three (3) business days notice, and is herein referred to as the
"Closing Date".
3.2 Buyer Stock. Buyer shall exchange for the Purchased Shares 93,840
shares of voting common stock, $0.01 par value, of Buyer (the "Buyer Stock"),
which shall be issued to Sellers at the Closing. The number of shares of Buyer
Stock issuable to each Seller, and the
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number of Purchased Shares exchanged therefor, are set forth beside such
Seller's name on the version of Schedule B signed by such Seller. Each Seller
will receive a copy of this Agreement, Schedule A and only the version of
Schedule B signed by such Seller. At the closing, Buyer shall deliver share
certificates representing the appropriate number of shares of Buyer Stock to
each Seller.
4. Representations and Warranties.
4.1 Representations and Warranties of the Sellers. Each Seller,
severally and not jointly, represents and warranties to Buyer, as of the date
hereof and as of the Closing Date, as follows:
(a) Validity of Agreement; Capitalization. This Agreement has
been duly executed and delivered by each Seller and constitutes a
legal, valid and binding obligation of each of them, enforceable
against them in accordance with its terms.
(b) No Approvals or Notices Required; No Conflict with
Instruments. The execution, delivery and performance of this Agreement
by the Sellers and the consummation by them of the transactions
contemplated hereby (i) will not violate (with or without the giving
of notice or the lapse of time or both) or require any consent,
approval, filing or notice under, any provision of any Applicable Law,
and (ii) will not result in the creation of any Encumbrance on the
Purchased Shares under, conflict with, or result in the breach or
termination of any provision of, or constitute a default under, or
result in the acceleration of the performance of the obligations of
the Sellers under, any instrument or agreement to which the Seller is
a party or by which any of them or any of their assets is bound or
affected, except under pledges to ▇▇▇▇▇▇ Financial Leasing, Inc. to
secure the performance of obligations of Newpark Shipbuilding and
Repair, Inc. The Purchased Shares are transferable and assignable to
Buyer as contemplated by this Agreement without the waiver of any
right of first refusal or the consent of any other party being
obtained, and there exists no preferential right of purchase in favor
of any person with respect to any of the Purchased Shares.
(c) Title to Shares; Absence of Liens and Encumbrances. Each
of the Sellers owns good, marketable and indefeasible title to free
the Purchased Shares to be sold by such Seller pursuant to this
Agreement, free and clear of all Encumbrances, and other restrictions
of any kind and nature.
(d) Certain Fees. None of the Sellers has employed any
broker or finder or incurred any other liability for any brokerage fees,
commissions or finders' fees in connection with the transactions
contemplated hereby.
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(e) Investment Representations.
(i) Each Seller is acquiring the Buyer Stock for
its own account for investment and not with a view to, or
for sale or other disposition in connection with, any
distribution of all or any part thereof, except pursuant to
an applicable exemption under the Securities Act or in an
offering covered by an effective registration statement
under the Securities Act relating to the Buyer Stock. In
acquiring the Buyer Stock, each Seller is not offering or
selling, and will not offer or sell, for Buyer in
connection with any distribution of the Buyer Stock, and no
Seller has a participation or will participate in any such
undertaking or in any underwriting of such an undertaking,
except in compliance with applicable federal and state
securities laws.
(ii) Each Seller acknowledges that it or its
representatives have been furnished with substantially the
same kind of information regarding Buyer and its business,
assets, results of operations and financial condition as
would be contained in a registration statement prepared in
connection with a public sale of the Buyer Stock.
(iii) Each Seller acknowledges that it can bear the
economic risk of its investment in the Buyer Stock, and has
such knowledge and experience in financial and business
matters that it is capable of evaluating the merits and risks
of an investment in the Buyer Stock.
(iv) Each Seller understands that the Buyer Stock,
when issued to each Seller, will not have been registered
pursuant to the Securities Act or any applicable state
securities laws, that the Restricted Stock will be
characterized as "restricted securities" under federal
securities laws, and that under such laws and applicable
regulations the Restricted Stock cannot be sold or otherwise
disposed of without registration under the Securities Act or
an exemption therefrom. In this connection, each Seller
represents that it is familiar with Rule 144 promulgated
under the Securities Act, as currently in effect, and
understands the resale limitations imposed thereby and by the
Securities Act. Stop transfer instructions may be issued
accordingly to the transfer agent for the Restricted Stock.
(v) It is agreed and understood by each Seller that
the certificates representing the Buyer Stock shall each
conspicuously set forth on the face or back thereof, in
addition to any legends required by Applicable Law or other
agreement, a legend in substantially the following form:
THE SHARES REPRESENTED BY THIS CERTIFICATE HAVE NOT
BEEN REGISTERED PURSUANT TO THE SECURITIES ACT OF
1933, AS AMENDED, OR ANY STATE SECURITIES LAWS. SUCH
SHARES MAY NOT BE SOLD OR OTHERWISE
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TRANSFERRED EXCEPT (i) PURSUANT TO AN EFFECTIVE
REGISTRATION STATEMENT UNDER SUCH ACT, OR (ii) IN
ACCORDANCE WITH RULE 144 UNDER SUCH ACT, UNLESS THE
CORPORATION RECEIVES A WRITTEN OPINION OF COUNSEL,
WHICH OPINION AND COUNSEL ARE SATISFACTORY TO THE
CORPORATION, TO THE EFFECT THAT SUCH REGISTRATION IS
NOT REQUIRED. THE SALE OF SUCH SHARES IS ALSO SUBJECT
TO RESTRICTIONS ON TRANSFER CONTAINED IN A STOCK
EXCHANGE AGREEMENT DATED OCTOBER ___, 1997, A COPY OF
WHICH IS IN THE CORPORATION'S OFFICE.
(f) No Reliance. Sellers have not relied and are not
relying on any representations or warranties made by Buyer or any
officer, representative or agent of Buyer, except the representations
and warranties written in this Agreement, and the statements in the
written materials described in Section 4.1(e)(ii) above, in deciding to
enter into this Agreement and to close this Agreement.
4.2 Representations and Warranties of Buyer. Buyer represents and
warrants to the Sellers, as of the date hereof and as of the Closing Date, as
follows:
(a) Due Organization; Good Standing and Power. Buyer is a
corporation duly organized, validly existing and in good standing
under the laws of Delaware. Buyer has all requisite corporate power
and authority to enter into this Agreement to perform its obligations
hereunder and to own, lease and operate its assets and to conduct its
business as now conducted.
(b) Authorization and Validity of Agreement. The execution,
delivery and performance of this Agreement by Buyer and the
consummation by Buyer of the transactions contemplated hereby has been
duly authorized by all requisite corporate action on its part. No
other corporate action is necessary for the authorization, execution,
delivery and performance by Buyer of this Agreement and the
consummation by Buyer of the transactions contemplated hereby. This
Agreement has been duly executed and delivered by Buyer and
constitutes a legal, valid and binding obligation of Buyer,
enforceable against Buyer in accordance with its terms.
(c) No Conflict with Instruments. The execution, delivery and
performance of this Agreement by Buyer and the consummation by it of
the transactions contemplated hereby (i) will not violate (with or
without the giving of notice or the lapse of time or both), or require
any consent, approval, filing or notice under any provision of any
law, rule or regulation, court order, judgment or decree applicable to
buyer, and (ii) will not result in the creation of any Encumbrance
(except as specifically provided in this Agreement) on the Buyer Stock
under, conflict with, or result in the breach or termination of any
provision of, or constitute a default under, or result in the
acceleration of the
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performance of the obligations of Buyer, under, the Certificate of
Incorporation or bylaws of Buyer or any instrument or agreement to
which Buyer is a party or by which Buyer or any of its assets or
properties is bound.
(d) Certain Fees. Neither Buyer nor any of its respective
officers, directors or employees, on behalf of it, has employed any
broker or finder or incurred any other liability for any brokerage
fees, commissions or finders' fees in connection with the transactions
contemplated hereby.
(e) No Reliance. Buyer has not relied and is not relying on
any representations or warranties made by Sellers or agent of Sellers,
except the representations and warranties written in this Agreement,
in deciding to enter into this Agreement and to close this Agreement.
(f) Legal Opinion. At least three (3) days before the Closing
Date, Buyer will deliver to Sellers a legal opinion by ▇▇▇▇▇▇ ▇.
▇▇▇▇▇▇▇ and ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & ▇▇▇▇▇▇, L.L.P., addressed to Sellers,
that the exchange described in Section 2 of this Agreement will qualify
as a tax-free reorganization pursuant to Section 368(a)(1)(B) of the
Internal Revenue Code of 1986, as amended, in form and substance
reasonably satisfactory to Seller's counsel.
4.3 Survival of Representations and Warranties. The respective
representations and warranties of the parties contained herein shall survive
the Closing.
5. Additional Restrictions on Transfer of Stock. In addition to the
transfer restrictions described elsewhere in this Agreement or required under
Applicable Law, each Seller hereby covenants and agrees that it will not,
directly or indirectly, offer, sell, offer to sell, contract to sell, pledge,
grant any option to purchase or otherwise sell or dispose of (collectively,
"Dispositions") (i) more than 7% of the Restricted Stock issued to such Seller
prior to the first anniversary of the Closing Date or (ii) more than 27% of
such Restricted Stock (cumulatively with all prior Dispositions) until after
the second anniversary of the Closing Date or (iii) more than 47% of such
Restricted Stock (cumulatively with all prior Dispositions) until after the
third anniversary of the Closing Date or (iv) more than 67% of such Restricted
Stock (cumulatively with all prior Dispositions) until after the fourth
anniversary of the Closing Date or (v) more than 87% of such Restricted Stock
(cumulatively with all prior Dispositions) until after the fifth anniversary of
the Closing Date. The restrictions created by this Section 5 shall expire after
the fifth anniversary of the Closing Date. Sellers agree that the restrictions
created by this Section 5 may be waived, varied or extinguished, as to all
Sellers, or as to one or more but not all Sellers, by Buyer in its sole
discretion, without the joinder of any Sellers.
6. Conditions to Closing, Termination.
6.1 Buyer's Conditions to Closing. The obligations of Buyer to perform
its obligations under this Agreement are, at the option of the Buyer, subject
to the satisfaction on or before
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the Closing Date of the conditions set forth below, any of which may be waived
by Buyer in writing; provided, however, Buyer's election to proceed with the
Closing of the transactions contemplated hereby shall not be deemed a waiver of
any breach of any representation, warranty or covenant herein, whether or not
known to Buyer or existing on the Closing Date, and such action shall not
prejudice Buyer's right to recover damages for such breach.
(a) Representations and Warranties. The representations and
warranties of Sellers contained in this Agreement shall be true and
correct in all material respects on the date hereof, and shall be true
and correct in all material respects on the Closing Date with the same
force and effect as if they had been made on and as of the Closing
Date.
(b) Covenants. The agreements and covenants of Sellers to be
performed or complied with on or before the Closing Date pursuant to
this Agreement shall have been performed or complied with by them in
all material respects.
(c) Absence of Restraint. No order to restrain, enjoin or
otherwise prevent the consummation of this Agreement or the
transactions in connection herewith shall have been entered and, on
the Closing Date, there shall not be any pending or threatened
litigation in any court, or any proceeding by or before any
governmental commission, board or agency, with a view to seeking to
restrain or prohibit consummation of the transactions contemplated
hereby or in which divestiture, rescission or significant damages are
sought in connection with the transactions contemplated hereby and no
investigation by any governmental agency shall be pending or
threatened that might result in any such litigation or other
proceeding.
(d) Certificates. Sellers shall have delivered to Buyer one
or more certificates dated as of the Closing Date executed by Sellers
certifying to the effect set forth in Sections 6.1(a) and (b) hereof.
(e) Consummation of Transfers. ▇▇▇▇▇▇ Financial Leasing, Inc.
shall have approved the consummation of the transfers contemplated
hereunder.
6.2 Sellers' Conditions to Closing. The obligations of Sellers to
perform their obligations under this Agreement are, at the option of Sellers,
subject to the satisfaction on or before the Closing Date of the conditions set
forth below, any of which may be waived by Sellers in writing; provided,
however, Sellers' election to proceed with the Closing of the transactions
contemplated hereby shall not be deemed a waiver of any breach of any
representation, warranty or covenant herein, whether or not known to Sellers or
existing on the Closing Date, and such action shall not prejudice Sellers'
right to recover damages for such breach. If any Seller opts not to close
pursuant to this Section, the other Sellers may opt to close.
(a) Representations and Warranties. The representations and
warranties of Buyer contained in this Agreement shall be true and
correct in all material respects on the
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date hereof, and shall be true and correct in all material respects on
the Closing Date with the same force and effect as if they had been
made on and as of the Closing Date.
(b) Covenants. The agreements and covenants of Buyer to be
performed or complied with on or before the Closing Date pursuant to
this Agreement shall have been performed or complied with by them in
all material respects.
(c) Absence of Restraint. No order to restrain, enjoin or
otherwise prevent the consummation of this Agreement or the
transactions in connection herewith shall have been entered and, on
the Closing Date, there shall not be any pending or threatened
litigation in any court, or any proceeding by or before any
governmental commission, board or agency, with a view to seeking to
restrain or prohibit consummation of the transactions contemplated
hereby or in which divestiture, rescission or significant damages are
sought in connection with the transactions contemplated hereby and no
investigation by any governmental agency shall be pending or
threatened that might result in any such litigation or other
proceeding.
(d) Certificates. Buyer shall have delivered to Sellers one
or more certificates dated as of the Closing Date executed by Buyer
certifying to the effect set forth in Sections 6.2(a) and (b) hereof.
(e) Consummation of Transfers. ▇▇▇▇▇▇ Financial Leasing,
Inc. shall have approved the consummation of the transfers contemplated
hereunder.
6.3 Termination. If this Agreement has not closed by March 31, 1998,
it will terminate. In the event of any termination of this Agreement, this
Agreement shall forthwith become wholly void and of no further force or effect
and there shall be no liability on the part of Buyer, or its respective
officers, directors, or agents, or any Seller except that the provisions of
Section 9.1, 9.10, and 9.12 hereof shall remain in full force and effect, and
provided that termination shall not release any party from liability for any
prior failure to comply with any provision, covenant or agreement contained
herein.
7. Closing.
7.1 Deliveries by Buyer. At the Closing, the Buyer shall issue
and deliver to the Seller share certificates representing the Buyer Stock.
7.2 Deliveries by Sellers. At the Closing, the Sellers shall deliver
to the Buyer original share certificates representing the Purchased Shares and
duly executed share transfer certificates effecting the transfer of the
Purchased Shares to the Buyer.
7.3 Termination of Prior Agreement Regarding Purchased Shares. The
parties hereto include all parties to the Shareholder Agreement and Stock
Purchase Agreement regarding stock in Newpark Shipbuilding and
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Repair, Inc. The parties, joined by Newpark Shipbuilding and Repair, Inc., for
this specific purpose, hereby terminate that agreement as of the Closing Date.
No covenant or agreement under that agreement will cause a default of any party
under this Agreement.
8. Indemnification.
8.1 Indemnification by the Sellers. Subject to the provisions of
Section 8.3, each Seller shall protect, indemnify and hold harmless Buyer, each
officer, director and agent of Buyer and each person who controls Buyer in
respect of any losses, claims, damages, liabilities, deficiencies,
delinquencies, defaults, assessments, fees, penalties or related costs or
expenses, including, but not limited to, court costs, attorneys' and
accountants' fees and disbursements, and any federal, state or local income or
franchise Taxes payable in respect of the receipt of cash or money in discharge
of the foregoing, (collectively referred to herein as "Damages") to which Buyer
(or such related parties) may become subject if such Damages arise out of or
are based upon the breach of any of the representations, warranties, covenants
or agreements made by that Seller in this Agreement, including Schedules A and
B hereto, or in any certificate or instrument delivered by or on behalf of that
Seller pursuant to this Agreement.
8.2 Indemnification by Buyer. Subject to the provisions of Section
8.3, Buyer shall protect, indemnify and hold harmless the Sellers in respect of
any Damages to which the Sellers may become subject if such Damages arise out
of or are based upon the breach of any of the representations, warranties,
covenants or agreements made by Buyer in this Agreement, including Schedule A
hereto or in any certificate or instrument delivered by or on behalf of Buyer
pursuant to this Agreement.
8.3 Limits on Indemnification Liability. Notwithstanding any other
provisions to the contrary in this Agreement, the indemnification obligations
of Buyer and the Sellers set forth in this Agreement shall be limited to
indemnification for actual damages, and shall not include incidental,
consequential, or punitive damages.
9. Miscellaneous.
9.1 Payment of Certain Fees and Expenses. Each of the parties hereto
shall pay the fees and expenses incurred by it in connection with the
negotiation, preparation, execution and performance of this Agreement,
including, without limitation, brokers' fees, attorneys' fees and accountants'
fees.
9.2 Notices. All notices, requests, demands and other communications
which are required or may be given under this Agreement shall be in writing and
shall be deemed to have been duly given if delivered personally or by courier,
or mailed by first class mail, postage prepaid, return receipt requested, or
sent by facsimile, as follows:
(a) If to a Seller, to the address or facsimile
number shown on Schedule A with a copy to:
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▇▇▇▇▇▇ & ▇▇▇▇▇▇, L.L.P.
▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇. ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Facsimile: 228-1331
(b) If to Buyer:
First Wave Marine, Inc.
▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇., ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
with a copy to:
▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇, P.C.
▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇, Esq.
Facsimile (▇▇▇) ▇▇▇-▇▇▇▇
or to such other address as either party shall have specified by notice in
writing to the other party. All such notices, requests, demands and
communications shall be deemed to have been received on the earlier of the date
of delivery or on the fifth business day after the mailing thereof.
9.3 Entire Agreement. This Agreement (including Schedules A and B
hereto) constitutes the entire agreement between the parties hereto and
supersedes all prior agreements and understandings, oral and written, between
the parties hereto with respect to the subject matter hereof.
9.4 Binding Effect; Benefit. This Agreement shall inure to the benefit
of and be binding upon the parties hereto and their respective permitted heirs,
personal representatives, successors and assigns. Nothing in this Agreement,
expressed or implied, is intended to confer on any person other than the
parties hereto or their respective heirs, personal representatives, successors
and assigns, any rights, remedies, obligations or liabilities under or by
reason of this Agreement.
9.5 Assignability. This Agreement shall not be assignable by the
Sellers without the prior written consent of Buyer or by Buyer without the
prior written consent of the Sellers.
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9.6 Amendment; Waiver. This Agreement may be amended, supplemented or
otherwise modified only by a written instrument executed by the parties hereto.
No waiver by any party of any of the provisions hereof shall be effective
unless explicitly set forth in writing and executed by the party so waiving.
Except as provided in the preceding sentence, no action taken pursuant to this
Agreement, including without limitation, any investigation by or on behalf of
any party, shall be deemed to constitute a waiver by the party taking such
action of compliance with any representations, warranties, covenants, or
agreements contained herein, and in any documents delivered or to be delivered
pursuant to this Agreement and in connection with the Closing hereunder. The
waiver by any party hereto of a breach of any provision of this Agreement shall
not operate or be construed as a waiver of any subsequent breach.
9.7 Section Headings; Index. The section headings contained in this
Agreement are for reference purposes only and shall not affect the meaning or
interpretation of this Agreement.
9.8 Severability. If any provision of this Agreement shall be declared
by any court of competent jurisdiction to be illegal, void or unenforceable,
all other provisions of this Agreement shall not be affected and shall remain
in full force and effect.
9.9 Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be deemed to be an original and all of which
together shall be deemed to be one and the same instrument.
9.10 Applicable Law. This Agreement shall be governed by, and
construed in accordance with, the laws of the State of Texas.
9.11 References. All references in this Agreement to Sections,
paragraphs and other subdivisions refer to the Sections, paragraphs and other
subdivisions of this Agreement unless expressly provided otherwise. The words
"this Agreement", "herein", "hereof", "hereby", "hereunder" and words of similar
import refer to this Agreement as a whole and not to any particular subdivision
unless expressly so limited. Whenever the words "include", "includes" and
"including" are used in this Agreement, such words shall be deemed to be
followed by the words "without limitation".
9.12 Dispute Resolution. Any dispute, difference or question
("Dispute") between Buyer on the one hand and any Sellers on the other
("Disputing Parties"), arising with respect to this Agreement shall be resolved
in accordance with the following dispute resolution procedures:
(a) Good Faith Negotiations. The Disputing Parties shall
endeavor, in good faith, to resolve the Dispute through negotiations.
(b) Mediation. In the event that the negotiations do not
result in a mutually acceptable resolution, either Disputing Party may
require that the Dispute shall be referred to mediation in Houston,
Texas. One mediator shall be appointed by the agreement of the
Parties. The mediator shall be a suitably qualified person having no
direct or personal
11
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interest in the outcome of the Dispute. Mediation shall be held within
thirty (30) days of referral to mediation. In the event the Disputing
Parties are unable to agree to a mediator, the Parties agree to the
appointment of a mediator pursuant to the Commercial Mediation Rules of
the American Arbitration Association.
(c) Arbitration. In the event the Parties are unsuccessful in
their mediation of the Dispute, either Disputing Party may request
that the Dispute will be settled by Arbitration by an arbitrator
mutually acceptable to the Disputing Parties in an Arbitration
Proceeding conducted in Houston, Texas in accordance with the rules
existing at the date hereof of the American Arbitration Association.
If the Disputing Parties hereto cannot agree on an arbitrator within
ten (10) business days of the initiation of the Arbitration
Proceeding, an arbitrator shall be selected for the Disputing Parties
by the American Arbitration Association. The Disputing Parties shall
use their reasonable best efforts to have the Arbitration Proceeding
concluded and a judgment rendered by the arbitrator within forty (40)
business days of the initiation of the Arbitration Proceeding. The
decision of such arbitrator shall be final, and judgment upon the
award rendered by the arbitration may be entered in any court having
jurisdiction thereof, and the costs (including, without limitation,
reasonable fees and expenses of counsel and experts for the Disputing
Parties) of such arbitration (including the costs to enforce or
preserve the rights awarded in the arbitration) shall be borne by the
Disputing Party whom the decision of the arbitrator is against. If the
decision of the arbitrator is not clearly against one of the disputing
Parties or the decisions of the arbitrator is against more than one
Disputing Party on one or more issues, the costs of such Arbitration
shall be borne equally by the Disputing Parties. Notwithstanding the
foregoing, Buyer may apply to any court of competent jurisdiction for
injunctive relief without breach of this arbitration provision.
(d) Consent to Jurisdiction; Venue. The parties hereto agree
that all actions relating to the enforcement of this Section 9.12 or
any award rendered hereunder, and over which the United States federal
courts have subject matter jurisdiction, shall be litigated, if at
all, exclusively in the United States District Court for the Southern
District of Texas, Houston Division, and, if necessary, the
corresponding appellate courts. The parties further agree that all
actions relating to the enforcement of this Section 9.12 or any award
rendered hereunder, and over which the United States federal courts
do not have subject matter jurisdiction, shall be litigated, if at
all, exclusively in the Courts of the State of Texas, in ▇▇▇▇▇▇
County, and, if necessary, the corresponding appellate courts. Each
party hereto hereby submits itself to the personal jurisdiction of,
and consents to venue in, any such court, and hereby waives any claim
it may otherwise have that such court lacks personal jurisdiction
over it, or that such court is an inconvenient forum, with respect to
any such matter or proceeding. Each party hereto further agrees to
voluntarily appear and to enter a general appearance in any such
proceeding which is brought in any such court.
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9.13 Confidentiality. Except as may be required by Applicable Law, no
party shall disclose to or discuss with anyone outside their immediate family,
the terms of this Agreement or the transactions contemplated hereby without the
prior written consent of the other parties.
9.14 ▇▇▇▇▇▇ Financial. Any provision of this Agreement to the contrary
notwithstanding, neither the pledge of the Purchased Shares to ▇▇▇▇▇▇ Financial
Leasing, Inc. to secure the performance of obligations of Newpark Shipbuilding
and Repair, Inc., nor the related covenants against transfer of the Purchased
Shares, shall be a default of any Seller of any provision hereunder.
[THE NEXT PAGE IS THE SIGNATURE PAGE TO THIS AGREEMENT]
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IN WITNESS WHEREOF, the parties hereto have executed and delivered
this Agreement on the date first above written.
SELLERS:
/s/ ▇▇▇ ▇'▇▇▇▇▇
--------------------------
▇▇▇ ▇'▇▇▇▇▇
/s/ ▇▇▇▇▇▇▇ ▇▇▇▇
--------------------------
▇▇▇▇▇▇▇ ▇▇▇▇
/s/ ▇▇▇▇▇ ▇▇▇▇▇▇
--------------------------
▇▇▇▇▇ ▇▇▇▇▇▇
/s/ ▇▇▇▇ ▇▇▇▇▇, III
--------------------------
▇▇▇▇ ▇▇▇▇▇, III
/s/ ▇▇▇▇▇ ▇▇▇▇
--------------------------
▇▇▇▇▇ ▇▇▇▇
/s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇, III
--------------------------
▇▇▇▇ ▇. ▇▇▇▇▇▇, III
/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
--------------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
--------------------------
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
/s/ ▇▇▇▇ ▇. ▇▇▇▇▇
--------------------------
▇▇▇▇ ▇. ▇▇▇▇▇
/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇.
--------------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇.
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19
/s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇.
--------------------------
▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇.
/s/ ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇
--------------------------
▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇
/s/ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
--------------------------
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
--------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
/s/ ▇▇▇▇▇ ▇▇▇▇▇
--------------------------
▇▇▇▇▇ ▇▇▇▇▇
/s/ ▇▇▇▇ ▇▇▇▇▇▇ (CHAKA)
--------------------------
▇▇▇▇ ▇▇▇▇▇▇ (▇▇▇▇▇)
BUYER:
FIRST WAVE MARINE, INC.,
a Delaware corporation
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
-----------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇
---------------------
Title: President
--------------------
The undersigned hereby joins the parties to terminate the Shareholder
Agreement and Stock Purchase Agreement described in Section 7.3 above.
NEWPARK SHIPBUILDING AND REPAIR,
INC., A TEXAS CORPORATION
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
-----------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇
---------------------------
Title: President
--------------------------
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SCHEDULE A
NAMES AND ADDRESSES OF SELLERS
▇▇▇ ▇'▇▇▇▇▇
--------------------------
--------------------------
--------------------------
▇▇▇▇▇▇▇ ▇▇▇▇
--------------------------
--------------------------
--------------------------
▇▇▇▇▇ ▇▇▇▇▇▇
--------------------------
--------------------------
--------------------------
▇▇▇▇ ▇▇▇▇▇, III
--------------------------
--------------------------
--------------------------
▇▇▇▇▇ ▇▇▇▇
--------------------------
--------------------------
--------------------------
▇▇▇▇ ▇. ▇▇▇▇▇▇, III
--------------------------
--------------------------
--------------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
--------------------------
--------------------------
--------------------------
21
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
--------------------------
--------------------------
--------------------------
▇▇▇▇ ▇. ▇▇▇▇▇
--------------------------
--------------------------
--------------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇.
--------------------------
--------------------------
--------------------------
▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇.
--------------------------
--------------------------
--------------------------
▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇
--------------------------
--------------------------
--------------------------
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
--------------------------
--------------------------
--------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
--------------------------
--------------------------
--------------------------
▇▇▇▇▇ ▇▇▇▇▇
--------------------------
--------------------------
--------------------------
▇▇▇▇ ▇▇▇▇▇▇ (▇▇▇▇▇)
--------------------------
--------------------------
--------------------------