EXHIBIT A
PURCHASE AGREEMENT
By and Among
Trico Marine Services, Inc.
Inverness/Phoenix Partners LP,
and
Executive Capital Partners I LP
Common Stock, par value $.01 per share
April 16, 1999
TABLE OF CONTENTS
ARTICLE I.
DEFINITIONS........................................................... A-1
Section 1.1 Definitions............................................. A-1
Section 1.2 References and Titles................................... A-4
ARTICLE II.
PURCHASE OF THE SECURITIES............................................ A-4
Section 2.1 Purchase of the Shares.................................. A-4
Section 2.2 Commitment Fee.......................................... A-4
ARTICLE III.
REPRESENTATIONS AND WARRANTIES OF THE COMPANY......................... A-5
Section 3.1 Organization, Standing and Power........................ A-5
Section 3.2 Subsidiaries............................................ A-5
Section 3.3 Capital Structure....................................... A-5
Section 3.4 Authority; No Violations; Approvals..................... A-6
Section 3.5 SEC Documents........................................... A-6
Section 3.6 Absence of Certain Changes or Events.................... A-7
Section 3.7 No Undisclosed Material Liabilities..................... A-7
Section 3.8 Compliance with Applicable Laws......................... A-7
Section 3.9 Litigation.............................................. A-7
Section 3.10 Permits................................................. A-8
Section 3.11 Title to Properties; Condition.......................... A-8
Section 3.12 Vessels................................................. A-8
Section 3.13 Certain Agreements...................................... A-8
Section 3.14 Tax Returns and Tax Payments............................ A-9
Section 3.15 Employee Benefit Plans.................................. A-9
Section 3.16 Labor Matters........................................... A-9
Section 3.17 Intangible Property..................................... A-10
Section 3.18 Environmental Matters................................... A-10
Section 3.19 Insurance............................................... A-10
Section 3.20 No Brokers or Finders................................... A-10
Section 3.21 Vote.................................................... A-10
Section 3.22 Internal Procedures..................................... A-10
Section 3.23 Ability to Meet Obligations............................. A-11
Section 3.24 Relationships with Related Persons...................... A-11
Section 3.25 Restrictions on Business Activities..................... A-11
Section 3.26 Certain Business Practices.............................. A-11
Section 3.27 Disclosure.............................................. A-11
ARTICLE IV.
REPRESENTATIONS AND WARRANTIES OF THE PURCHASERS...................... A-12
Section 4.1 Organization, Standing and Power........................ A-12
Section 4.2 Authority; Approvals.................................... A-12
Section 4.3 Investment Intent....................................... A-12
Section 4.4 Purchaser Inquiry....................................... A-12
Section 4.5 Transfer Restrictions................................... A-12
Section 4.6 Purchaser Status........................................ A-13
Section 4.7 Sufficient Funds........................................ A-13
Section 4.8 Citizenship............................................. A-13
Section 4.9 Brokers or Finders...................................... A-13
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ARTICLE V.
COVENANTS........................................................ A-13
Section 5.1 Confidentiality................................... A-13
Section 5.2 Conduct of Business............................... A-14
Section 5.3 Approvals......................................... A-15
Section 5.4 HSR Act Notification.............................. A-15
Section 5.5 Notification of Certain Matters................... A-15
Section 5.6 Directors......................................... A-15
Section 5.7 Indemnification of Directors...................... A-15
Section 5.8 Listing........................................... A-16
Section 5.9 Stockholders' Meeting; Proxy Statement............ A-16
Section 5.10 Rights Plan Amendment............................. A-16
Section 5.11 Use of Proceeds................................... A-17
ARTICLE VI.
CONDITIONS PRECEDENT TO CLOSING.................................. A-17
Section 6.1 Conditions Precedent to Each Party's Obligation... A-17
Section 6.2 Conditions Precedent to Obligation of the
Purchasers........................................ A-17
Section 6.3 Conditions Precedent to Obligations of the
Company........................................... A-18
ARTICLE VII.
CLOSINGS......................................................... A-18
Section 7.1 First Closing..................................... A-18
Section 7.2 Actions to Occur at the First Closing............. A-19
Section 7.3 Second Closing.................................... A-19
Section 7.4 Actions to Occur at the Second Closing............ A-19
ARTICLE VIII.
TERMINATION...................................................... A-20
Section 8.1 Termination....................................... A-20
Section 8.2 Effect of Termination............................. A-20
ARTICLE IX.
RECOVERY OF FEES................................................. A-21
ARTICLE X.
MISCELLANEOUS.................................................... A-21
Section 10.1 Survival of Provisions............................ ▇-▇▇
▇▇▇▇▇▇▇ ▇▇.▇ ▇▇ ▇▇▇▇▇▇; Modification in Writing................ A-21
Section 10.3 Specific Performance.............................. A-21
Section 10.4 Severability...................................... A-21
Section 10.5 Fees and Expenses................................. A-22
Section 10.6 Parties in Interest............................... A-22
Section 10.7 Notices........................................... A-22
Section 10.8 Counterparts...................................... A-22
Section 10.9 Entire Agreement.................................. A-22
Section 10.10 Governing Law..................................... A-23
Section 10.11 Public Announcements.............................. A-23
Section 10.12 Assignment........................................ A-23
Section 10.13 Director and Officer Liability.................... A-23
Section 10.14 Headings.......................................... A-23
Exhibits and Annexes
Exhibit 2.1 Allocation of Purchase Price
Annex A Stockholders' Agreement
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PURCHASE AGREEMENT
PURCHASE AGREEMENT, dated as of April 16, 1999, by and among Trico Marine
Services, Inc., a Delaware corporation (together with its successors, if any,
the "Company"), and Inverness/Phoenix Partners LP, a Delaware limited
partnership, and Executive Capital Partners I LP, a Delaware limited
partnership (collectively, the "Purchasers").
In consideration of the mutual covenants and agreements set forth herein and
for good and valuable consideration, the receipt of which is hereby
acknowledged, the parties hereto agree as follows:
ARTICLE I.
Definitions
Section 1.1 Definitions. In addition to the other defined terms used in this
Agreement, and unless the context requires a different meaning, the following
terms have the meanings indicated:
"Affiliate" means, with respect to any Person, any other Person directly, or
indirectly through one or more intermediaries, controlling, controlled by or
under common control with such Person. For purposes of this definition and
this Agreement, the term "control" (and correlative terms "controlling,"
"controlled by" and "under common control with") means possession of the
power, whether by contract, equity ownership or otherwise, to direct the
policies or management of a Person.
"Agreement" means this Purchase Agreement, as the same may be amended,
supplemented or modified from time to time in accordance with the terms
hereof.
"Applicable Law" means any constitutional provision, statute or other law,
ordinance, rule, regulation or interpretation of any thereof and any Order of
any Governmental Entity (including Environmental Laws).
"Approval" means any approval, authorization, grant of authority, consent,
order, qualification, permit, license, variance, exemption, franchise,
concession, certificate, filing or registration or any waiver of the
foregoing, or any notice, statement or other communication required to be
filed with, delivered to or obtained from any Governmental Entity or any other
Person.
"Board" means the Board of Directors of the Company.
"Business Day" means any day except Saturday, Sunday and any day which shall
be a legal holiday or a day on which banking institutions in Houston, Texas or
New York City, New York generally are authorized or required by law or other
government actions to close.
"Bylaws" mean the Company's bylaws, as amended from time to time.
"Capital Stock" means (1) with respect to any Person that is a corporation
or company, any and all shares, interests, participations or other equivalents
(however designated) of capital or capital stock of such Person and (2) with
respect to any Person that is not a corporation or company, any and all
partnership or other equity interests of such Person.
"Certificate of Incorporation" means the Company's Amended and Restated
Certificate of Incorporation, as amended from time to time.
"Code" means the Internal Revenue Code of 1986, as amended, and the rules
and regulations thereunder as in effect on the date hereof.
"Common Stock" means the Company's common stock, par value $.01 per share.
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"Confidential Information" means all information about the Company furnished
to the Purchasers or any of their Representatives by the Company or any of its
Representatives, but shall exclude information that (i) is in the possession
of the Purchasers or their Representatives prior to receipt from the Company,
(ii) is or becomes available in the public domain, other than as a result of
an unauthorized disclosure by Purchasers or its Representatives, or (iii) is
not acquired from the Company or any other person known by the Purchasers or
its Representatives to be subject to a confidentiality agreement with the
Company.
"Contractual Obligation" means, as to any Person, any loan or credit
agreement, note, bond, mortgage, indenture, lease, permit, concession,
franchise, license or any other contract, agreement, arrangement or
understanding, written or otherwise, to which such Person is a party or by
which it or any of its property is bound.
"Credit Agreements" means, (1) that certain Second Amended and Restated
Revolving Credit Agreement, dated as of March 13, 1998, among the Company, as
borrower, BankBoston, N.A., as administration agent, and the lenders signatory
thereto, as amended by Amendment No. 1 thereto, dated as of December 31, 1998,
and as the same may from time to time be amended or supplemented and (2) that
certain Loan Agreement, dated as of June 23, 1998, among Saevik Shipping AS,
as borrower, Den Norske Bank ASA, as agent, and the other lending institutions
that may become party thereto from time to time in accordance with the terms
thereof, as the same may from time to time be amended or supplemented.
"ERISA" means the Employee Retirement Income Security Act of 1974, as
amended from time to time, and the rules and regulations promulgated
thereunder from time to time in effect.
"ERISA Affiliate" means any trade or business (whether or not incorporated)
that is treated as a single employer together with the Company under section
414 of the Code.
"Exchange Act" means the Securities Exchange Act of 1934, as amended, and
the rules and regulations of the SEC promulgated thereunder.
"First Tranche" means the 4,000,000 shares of Common Stock to be purchased
by the Purchasers at the First Closing.
"Governmental Entity" means any agency, bureau, commission, court,
authority, department, official, political subdivision, tribunal or other
instrumentality of any government, whether (1) regulatory, administrative or
otherwise, (2) federal, state or local, or (3) domestic or foreign.
"HSR Act" means the ▇▇▇▇-▇▇▇▇▇-▇▇▇▇▇▇ Antitrust Improvements Act of 1976, as
amended.
"Indenture" means the Indenture, dated as of September 22, 1998, among Trico
Marine Services, Inc., the guarantors listed on the signature page thereto and
Chase Bank of Texas, National Association, as trustee, as the same may from
time to time be amended or supplemented.
"Knowledge" of any Person means the actual knowledge of such Person's
executive and financial officers and directors, in each case after reasonable
inquiry of such other officers of such Person with direct responsibility for
the Person's business relating to such knowledge.
"Lien" means any mortgage, lien, pledge, encumbrance, easement, charge or
security interest of any kind (including any agreement to give any of the
foregoing, any conditional sale or other title retention agreement or any
lease in the nature thereof).
"Material" means material in relation to the business, operations,
properties, condition (financial or otherwise), results of operations, assets,
liabilities or prospects of the Company and its Subsidiaries taken as a whole.
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"Material Adverse Effect" means any effect, change, event or occurrence that
(1) is materially adverse to the business, operations, properties, condition
(financial or otherwise), results of operations, prospects, assets or
liabilities of the Company and its Subsidiaries taken as a whole, (2) has
impaired and could impair the ability of the Company to perform its
obligations under any of the Transaction Documents in any material respect, or
(3) could delay in any material respect or prevent the consummation of any of
the transactions contemplated by any of the Transaction Documents.
"Order" means any decree, injunction, judgment, settlement, order, ruling,
assessment or writ of a court.
"Partner" means, with respect to any Purchaser, any limited partner or
general partner of such Purchaser or any of such Purchaser's Affiliates,
whether or not such limited partner or general partner is an Affiliate of such
Purchaser.
"Person" means an individual or a corporation, partnership, trust,
incorporated or unincorporated association, limited liability company, joint
venture, joint stock company, government (or an agency or political
subdivision thereof) or other entity of any kind.
"Proceedings" means actions, causes of action, suits, claims, complaints,
demands, litigations or legal, administrative or arbitral proceedings.
"Representatives" of any Person means the officers, directors, employees,
agents and other representatives of such Person.
"Requirement of Law" means, as to any Person, the certificate of
incorporation and bylaws or other organizational or governing documents of
such Person, and any law, treaty, rule, regulation, ordinance, qualification,
license or franchise or determination (including, without limitation, those
related to taxes and to environmental matters) of an arbitrator or a court or
other Governmental Entity or of the Nasdaq National Market or any national
securities exchange on which the Common Stock is listed or admitted to
trading, in each case applicable or binding upon such Person or any of its
property or to which such Person or any of its property is subject or
pertaining to any or all of the transactions contemplated hereby.
"SEC" means the Securities and Exchange Commission.
"Second Tranche" means the 4,000,000 shares of Common Stock to be purchased
by the Purchasers at the Second Closing.
"Securities Act" means the Securities Act of 1933, as amended, and the rules
and regulations of the SEC promulgated thereunder.
"Shares" means the shares of Common Stock constituting the First Tranche and
the Second Tranche purchased by the Purchasers pursuant to this Agreement.
"Stockholders' Agreement" means that certain Stockholders' Agreement, in the
form attached hereto as Annex A, among the Company and the Purchasers, dated
as of the date hereof.
"Subsidiary" means, (1) a corporation, a majority of whose stock with voting
power, under ordinary circumstances, to elect directors is at the time,
directly or indirectly, owned by the Company, by a Subsidiary of the Company
or by the Company and another Subsidiary, or (2) any other Person (other than
a corporation) in which the Company, a Subsidiary or the Company and a
Subsidiary, directly or indirectly, at the date of determination thereof has
at least a majority ownership interest.
"Transaction Documents" means this Agreement and the Stockholders'
Agreement.
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Section 1.2 References and Titles. All references in this Agreement to
Exhibits, Schedules, Articles, Sections, subsections, and other subdivisions
refer to the corresponding Exhibits, Schedules, Articles, Sections,
subsections, and other subdivisions of this Agreement unless expressly
provided otherwise. Titles appearing at the beginning of any Articles,
Sections, subsections, or other subdivisions of this Agreement are for
convenience only, do not constitute any part of such Articles, Sections,
subsections or other subdivisions, and shall be disregarded in construing the
language contained therein. The words "this Agreement," "herein," "hereby,"
"hereunder," and "hereof," and words of similar import, refer to this
Agreement as a whole and not to any particular subdivision unless expressly so
limited. The words "this Section," "this subsection," and words of similar
import, refer only to the Sections or subsections hereof in which such words
occur. The word "including" (in its various forms) means "including without
limitation." Pronouns in masculine, feminine, or neuter genders shall be
construed to state and include any other gender and words, terms, and titles
(including terms defined herein) in the singular form shall be construed to
include the plural and vice versa, unless the context otherwise expressly
requires. Unless the context otherwise requires, all defined terms contained
herein shall include the singular and plural forms of such defined terms.
ARTICLE II.
Purchase of the Securities
Section 2.1 Purchase of the Shares.
(a) Subject to the terms and conditions herein set forth, the Company will
sell to the Purchasers, and the Purchasers will purchase from the Company, the
First Tranche and the Second Tranche, as allocated among the Purchasers as set
forth in Exhibit 2.1.
(b) The aggregate purchase price payable for the First Tranche shall be
$25,000,000.00 (the "First Tranche Purchase Price") and the aggregate purchase
price payable for the Second Tranche shall be $25,000,000.00 (the "Second
Tranche Purchase Price").
(c) Delivery of the shares of Common Stock constituting the First Tranche
shall be made at the First Closing by delivery to the Purchasers, against
payment of the First Tranche Purchase Price therefor as provided herein, of
one or more share certificates, registered in the name and amounts requested
by the Purchasers at least two Business Days prior to the First Closing,
representing an aggregate of 4,000,000 shares of Common Stock, all to be
purchased at the First Closing by the Purchasers hereunder.
(d) Delivery of the shares of Common Stock constituting the Second Tranche
shall be made at the Second Closing by delivery to the Purchasers, against
payment of the Second Tranche Purchase Price therefor as provided herein, of
one or more share certificates, registered in the name and amounts requested
by the Purchasers at least two Business Days prior to the Second Closing,
representing an aggregate of 4,000,000 shares of Common Stock, all to be
purchased at the Second Closing by the Purchasers hereunder.
(e) Payment of the First Tranche Purchase Price for the First Tranche and
payment of the Second Tranche Purchase Price for the Second Tranche to be
purchased hereunder shall be made by or on behalf of the Purchasers by wire
transfer of immediately available funds to an account of the Company (the
number for which account shall have been furnished to the Purchasers at least
two Business Days prior to the First Closing Date or the Second Closing Date,
as the case may be).
Section 2.2 Commitment Fee. The Company shall pay the Purchasers a
commitment fee of $2,000,000 (the "Commitment Fee"), $1,000,000 of which shall
be paid by the Company at the First Closing and the remaining $1,000,000 of
which shall be paid by the Company upon the earlier to occur of the Second
Closing or July 15, 1999, in each case, by wire transfer of immediately
available funds to an account of the Purchasers (the number for which account
shall have been furnished to the Company at least two Business Days prior to
the date of such payment).
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ARTICLE III.
Representations and Warranties of the Company
The Company represents and warrants to the Purchasers as follows:
Section 3.1 Organization, Standing and Power. Each of the Company and its
Subsidiaries: (a) has been duly organized and is validly existing as a
corporation in good standing under the laws of its jurisdiction of
incorporation; (b) has all requisite corporate power and authority to carry on
its business as it is currently being conducted and as described in the SEC
Documents and to own, lease and operate its properties; and (c) is duly
qualified and in good standing as a foreign corporation, authorized to do
business in each jurisdiction in which the nature of its business or its
ownership or leasing of property requires such qualification, except where the
failure to be so qualified could not reasonably be expected to result,
individually or in the aggregate, in a Material Adverse Effect. The Company
has all requisite corporate power and authority to enter into this Agreement
and the Stockholders' Agreement and to consummate each of the transactions and
perform each of the obligations contemplated hereby and thereby.
Section 3.2 Subsidiaries. All of the issued and outstanding capital stock
(or equivalent interests) of each Subsidiary has been duly authorized and
validly issued, is fully paid and non-assessable and is owned by the Company
free and clear of any Liens (other than Liens created pursuant to the Credit
Agreements), and there are no rights, options or warrants outstanding or other
agreements to acquire shares of capital stock (or equivalent interests) of
such Subsidiary. Except for the Company's Subsidiaries, the Company has no
Material interest or investments in any corporation, partnership, limited
liability company, trust or other entity or organization.
Section 3.3 Capital Structure.
(a) The authorized capital stock of the Company consists of 40,000,000
shares of Common Stock and 5,000,000 shares of preferred stock, par value $.01
per share, of which, as of the date of this Agreement, (1) 20,450,448 shares
of Common Stock are issued and 20,378,416 shares of Common Stock are
outstanding; (2) 100,000 shares of Series AA Participating Cumulative
Preference Stock were issued and outstanding; (3) 1,810,855 shares of Common
Stock have been authorized and are reserved for or subject to issuance upon
the exercise of outstanding options to purchase Common Stock granted under the
Company's director and employee stock incentive plans disclosed in the SEC
Documents; (4) 72,032 shares of Common Stock are held by the Company in its
treasury; and (5) no shares of Common Stock are held by any of the Company's
Subsidiaries. Except for shares of Common Stock issuable upon the exercise of
outstanding stock options granted under the director and employee stock
incentive plans disclosed in the SEC Documents, there are no shares of Common
Stock or any other equity security of the Company issuable upon conversion or
exchange of any security of the Company, nor are there any rights, options or
warrants outstanding or other agreements to acquire shares of capital stock of
the Company, nor will the Company be contractually obligated to issue any
shares of capital stock or to purchase, redeem or otherwise acquire any of its
outstanding shares of capital stock as a result of the transactions
contemplated hereby. None of the Company's outstanding debt or debt
instruments provide voting rights with respect to the Company to the holders
thereof. No stockholder of the Company or other Person is entitled to any
preemptive or similar rights to subscribe for shares of capital stock of the
Company. All of the issued and outstanding shares of Common Stock are, and the
Shares (when issued hereunder) after payment of the purchase price therefor to
the Company, will be, duly authorized, validly issued, fully paid,
nonassessable, and free and clear of all Liens (other than any such Liens
imposed by the Purchasers or any of their creditors). Except for the
registration rights granted pursuant to the Stockholders' Agreement, no Person
has the right to demand or request that the Company effect a registration
under the Securities Act of any securities held by such Person or to include
any securities of such Person in any such registration by the Company. Except
as described in this Section 3.3, the Company has no authorized, issued or
outstanding shares or capital stock as of the date of this Agreement.
(b) Except as contemplated hereby or in the Stockholders' Agreement or as
set forth in the SEC Documents, there are no registration rights agreements,
shareholder agreements, voting agreements or trusts, proxies or other
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agreements or contractual obligations to which the Company or any of its
Subsidiaries is a party or bound with respect to the registration with any
Government Entity, or the voting or disposition of any capital stock of the
Company or any of its Subsidiaries and, to the Company's Knowledge there are
no other shareholder agreements, voting agreements or trusts, proxies or other
agreements or contractual obligations among the shareholders of the Company
with respect to the voting or disposition of any capital stock of the Company
or any of its Subsidiaries.
Section 3.4 Authority; No Violations; Approvals.
(a) The Board has approved this Agreement, the Stockholders' Agreement and
the transactions contemplated hereby and thereby. The execution, delivery and
performance by the Company of this Agreement and the Stockholders' Agreement
and the transactions contemplated hereby and thereby, (1) have been duly
authorized by all necessary corporate action of the Company; (2) do not
contravene the terms of the certificate of incorporation or bylaws of the
Company or the organizational documents of its Subsidiaries; and (3) do not
violate or result in any breach or contravention of, a default under, or an
acceleration of any obligation under or the creation (with or without notice,
lapse of time or both) of any Lien under, any Contractual Obligation of the
Company or its Subsidiaries or any Requirement of Law applicable to the
Company or its Subsidiaries. No event has occurred and no condition exists
that (upon notice or the passage of time or both) would constitute, or give
rise to: (1) any breach, violation, default, change of control or right to
cause the Company to repurchase or redeem under; (2) any Lien on the assets of
the Company or any of its Subsidiaries under; (3) any termination right of any
part under; or (4) any change or acceleration in the rights or obligations of
any party under, any Contractual Obligation of the Company or its Subsidiaries
or any Order or Requirement of Law applicable to the Company or any of its
Subsidiaries, except for any such breach, violation, default, acceleration,
creation or change that does not, individually or in the aggregate, have a
Material Adverse Effect.
(b) No Approval of any Governmental Entity or any other Person in respect of
any Requirement of Law, Contractual Obligation or otherwise, and no lapse of a
waiting period under a Requirement of Law, is necessary or required in
connection with the execution, delivery or performance (including, without
limitation, the sale, issuance and delivery of the Shares) by the Company, or
enforcement against the Company, of this Agreement or the transactions
contemplated thereby, except for the filing of a notification report by the
Company under the HSR Act and the expiration or termination of the applicable
waiting period with respect thereto.
(c) This Agreement has been, and the Stockholders' Agreement when executed
and delivered will be, duly executed and delivered by the Company and
constitutes, or will constitute, the legal, valid and binding obligation of
the Company enforceable against the Company in accordance with its terms.
Section 3.5 SEC Documents.
(a) The Company has made available to the Purchasers a true and complete
copy of each report, schedule, registration statement and definitive proxy
statement filed by the Company with the SEC since December 31, 1997 (the "SEC
Documents"), which are all the documents (other than preliminary materials)
that the Company was required to file with the SEC since December 31, 1997. As
of their respective dates, the SEC Documents complied 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 thereunder applicable to such
SEC Documents, and none of the SEC Documents contained as of their respective
dates any untrue statement of a material fact or omitted to state a material
fact required to be stated therein or necessary to make the statements
therein, in light of the circumstances under which they were made, not
misleading.
(b) The financial statements of the Company included in the SEC Documents,
including the notes and schedules thereto, complied as to form in all material
respects with the rules and regulations of the SEC with respect thereto, were
prepared in accordance with United States generally accepted accounting
principles ("GAAP") applied on a consistent basis during the periods involved
(except as may be indicated in the notes thereto or, in the case of the
unaudited statements, as permitted by Rule 10-01 of Regulation S-X of the SEC)
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and fairly present the consolidated financial position of the Company and its
consolidated Subsidiaries as of their respective dates and the consolidated
results of operations and the consolidated cash flows of the Company and its
consolidated Subsidiaries for the periods presented therein in accordance with
applicable requirements of GAAP (subject, in the case of the unaudited
statements, to normal, recurring adjustments, none of which are material)
applied on a consistent basis during the periods presented.
Section 3.6 Absence of Certain Changes or Events.
(a) Except as disclosed in the SEC Documents filed with the SEC after
December 31, 1998 and prior to the date of this Agreement, or except as
contemplated by this Agreement, since December 31, 1998, each of the Company
and its Subsidiaries have conducted their business only in the ordinary course
of business consistent with past practice, and there has not been: (1) any
declaration, setting aside or payment of any dividend or other distribution by
the Company (whether in cash, stock or property) with respect to any capital
stock of the Company or any of its Subsidiaries; (2) any split, combinations,
reclassification or amendment of any term of any outstanding capital stock or
other security of the Company; (3) other than issuance of Common Stock upon
the exercise of outstanding options to purchase Common Stock granted under the
Company's director and employee stock incentive plans disclosed in the SEC
Documents, any issuance or the authorization of the issuance of any equity
securities of the Company or any of its Subsidiaries, other than in connection
with the transactions contemplated hereby; (4) any repurchase, redemption or
other acquisition by the Company or any Subsidiary of the Company of any
outstanding capital stock or other securities of the Company or any Subsidiary
of the Company; (5) (A) any grant by the Company or any of its Subsidiaries to
any officer of the Company or any of its Subsidiaries of any increase in
compensation, except for increases in the ordinary course of business
consistent with past practice or (B) any grant by the Company or any of its
Subsidiaries to any such officer of any increase in severance or termination
pay, except as was required or provided for under any employment, severance,
termination or other agreements or benefit arrangements in effect as of
December 31, 1998; (6) except as required by a change in GAAP, any material
change in accounting methods, principles or practices by the Company or any of
its Subsidiaries; or (7) any material casualties affecting the Company and its
Subsidiaries, taken as a whole, or any material loss, damage or destruction to
any of their properties or assets, whether covered by insurance or not.
(b) Except as disclosed in the Company's consolidated financial statements
included in the Company's Annual Report on Form 10-K for the year ended
December 31, 1998, and the notes thereto since December 31, 1998, there has
not been any event, circumstance or fact that has had or could reasonably be
expected to have a Material Adverse Effect.
Section 3.7 No Undisclosed Material Liabilities. Neither the Company nor any
of its Subsidiaries has any liabilities or obligations of any nature, whether
or not accrued, contingent or otherwise, except (a) liabilities or obligations
disclosed or reserved against in the SEC Documents filed prior to the date
thereof or (b) liabilities or obligations which could not have, individually
or in the aggregate, have not had, and could not reasonably be expected to
have, a Material Adverse Effect.
Section 3.8 Compliance with Applicable Laws. Except as would not have a
Material Adverse Effect, the Company and each of its Subsidiaries: (a) in the
conduct of its business, is not, and since December 31, 1998, has not been, in
violation of any Requirement of Law; (b) has all Approvals, which are in full
force and effect, and has made all filings, applications and registrations
with, all Governmental Entities that are required in order to permit it to
conduct its businesses in all Material respects as presently conducted; and
(c) since December 31, 1998, has received no notification or communication
from any Governmental Entity (1) asserting that it is not in compliance with
any of the Requirements of Law that such Governmental Entity enforces or (2)
threatening to revoke any Approval.
Section 3.9 Litigation.
(a) There are no Proceedings pending or, to the Knowledge of the Company,
threatened against or affecting the Company or any of its Subsidiaries or
relating to this Agreement or the transactions contemplated hereby,
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nor is there any Order of any Governmental Entity or arbitrator outstanding
against or binding upon the Company or any of its Subsidiaries that could
reasonably be expected to have a Material Adverse Effect.
(b) There are no Orders restricting or limiting in any Material respect the
business or operations of the Company or any of its Subsidiaries, to which the
Company or any of its Subsidiaries is a party or by which the Company or any
of its Subsidiaries or any of their respective assets or properties are bound.
Section 3.10 Permits. Each of the Company and its Subsidiaries has such
permits, licenses, franchises and authorizations of governmental or regulatory
authorities ("permits"), including, without limitation, under any applicable
Environmental Laws, as are necessary to own, lease and operate their
respective properties and to conduct their businesses, except as could not
reasonably be expected to have a Material Adverse Effect. Each of the Company
and its Subsidiaries has fulfilled and performed all of its obligations with
respect to such permits and no event has occurred which allows, or after
notice or lapse of time would allow, revocation or termination thereof or
could result in any other material impairment of the rights of the holder of
any such permit, except as could not reasonably be expected to have a Material
Adverse Effect. Except as described in the SEC Documents, such permits contain
no restrictions that are or will be materially burdensome to the Company or
such Subsidiary, as the case may be.
Section 3.11 Title to Properties; Condition. The Company or its Subsidiaries
owns, of record (to the extent applicable) and beneficially, all material
personal property and real property and has a valid and enforceable leasehold
interest in all material leases, in each case, as reflected in the
consolidated financial statements of the Company included in the SEC Documents
as being owned or leased by it or any of its Subsidiaries and all such
property thereafter acquired by it or any of its Subsidiaries (except to the
extent that such properties have thereafter been disposed of in the ordinary
course of business consistent with past practice or after the date hereof in
compliance with Section 5.2), free and clear of any Liens (other than Liens
created pursuant to the Credit Agreements), except in each case as could not
reasonably be expected to have a Material Adverse Effect. To the Company's
Knowledge, each piece of personal property other than the vessels currently in
use by the Company or its Subsidiaries is free from defects (patent and
latent), has been maintained in accordance with normal industry practice, is
in good operating condition and repair (subject to normal wear and tear), and
is suitable for the purposes for which it presently is used.
Section 3.12 Vessels. The Company and its Subsidiaries own and operate all
of their vessels in all Material respects in accordance with Applicable Law.
To the Company's Knowledge, each of the vessels presently operated by the
Company and its Subsidiaries, or upgraded pursuant to the Company's capital
improvement program, is free from any Material defects (patent and latent),
has been maintained in accordance with normal industry practice, is in good
operating condition and repair (subject to normal wear and tear), and is
suitable to be used for the purposes for which it presently is used.
Section 3.13 Certain Agreements.
(a) All of the Company's Contractual Obligations that are required to be
described in the SEC Documents or to be filed as exhibits thereto ("Material
Contracts") are described in the SEC Documents or filed as exhibits thereto,
as so required. Each Material Contract is a valid and binding agreement of the
Company or its Subsidiaries, as the case may be, enforceable in accordance
with its terms, and neither the Company nor any of its Subsidiaries is in
breach of or in default under any Material Contract except for such breaches
and defaults that could not, individually or in the aggregate, reasonably be
expected to have a Material Adverse Effect.
(b) The Company or the relevant Subsidiary and, to the Company's Knowledge,
each other party to the Material Contracts has performed in all material
respects the obligations required to be performed by it under the Material
Contracts and is not (with or without lapse of time or the giving of notice,
or both) in breach or default thereunder. No party to any Material Contract
has given written or, to the Company's Knowledge, oral notice of any action to
terminate, cancel, rescind or procure a judicial reformation thereof.
(c) A complete copy of each Material Contract has been made available to the
Purchasers prior to the date of this Agreement.
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(d) Neither the Company nor any of its Subsidiaries is a party to any oral
or written agreement, plan or arrangement with any employee, consultant or
independent contractor of the Company or a Subsidiary (1) the benefits of
which are contingent, or the terms of which will be materially altered, upon,
or result from, the occurrence of the transactions contemplated by this
Agreement or (2) any of the benefits of which will be increased, or the
vesting of benefits of which will be accelerated, by the occurrence of any of
the transactions contemplated by this Agreement or the value of any of the
benefits of which will be calculated on the basis of the transactions
contemplated by this Agreement.
(e) The Company has made available to the Purchasers (1) true and correct
copies of all material loan or credit agreements (including the Credit
Agreements), notes, bonds, mortgages, indentures and other agreements and
instruments pursuant to which any debt of the Company or any of its
Subsidiaries is outstanding or may be incurred and (2) accurate information
regarding the respective principal amounts currently outstanding thereunder to
the extent materially different than as set forth in the financial statements
included in the Company's annual report on Form 10-K for the year ended
December 31, 1998.
Section 3.14 Tax Returns and Tax Payments. The Company and its Subsidiaries
have filed all tax returns that are required to have been filed in any
jurisdiction, and have paid all taxes shown to be due and payable on such
returns and all other taxes and assessments levied upon them or their
properties, assets, income or franchises, to the extent such taxes and
assessments have become due and payable and before they have become
delinquent, except for any taxes and assessments (a) the amount of which is
not individually or in the aggregate Material or (b) the amount, applicability
or validity of which is currently being contested in good faith by appropriate
proceedings and with respect to which the Company or a Subsidiary, as the case
may be, has established adequate reserves in accordance with GAAP. The Company
knows of no basis for any other tax or assessment that could reasonably be
expected to have a Material Adverse Effect.
Section 3.15 Employee Benefit Plans.
(a) The Company has made available to Purchasers complete and correct copies
of all written plans under which the Company, any of its Subsidiaries or any
ERISA Affiliate, have any present or future obligations or liabilities in
respect of employees or former employees of the Company, any of its
Subsidiaries or any ERISA Affiliate or their dependents or beneficiaries
(individually, a "Plan").
(b) The Company and each ERISA Affiliate has operated and administered each
Plan in compliance with Applicable Law except for such instances of
noncompliance as have not resulted in and could not reasonably be expected to
result in a Material Adverse Effect. Neither the Company nor any ERISA
Affiliate has incurred any liability pursuant to Title I or IV of ERISA or the
penalty or excise tax provisions of the Code relating to employee benefit
plans (as defined in Section 3 of ERISA), and no event, transaction or
condition has occurred or exists that could reasonably be expected to result
in the incurrence of any such liability by the Company or any ERISA Affiliate,
or in the imposition of any Lien on any of the rights, properties or assets of
the Company or any ERISA Affiliate, in either case pursuant to Title I or IV
of ERISA or to such penalty or excise tax provisions or to Section 401(a)(29)
or 412 of the Code, other than such liabilities or Liens as would not be
individually or in the aggregate Material.
Section 3.16 Labor Matters. Except as set forth in the SEC Documents:
(a) there is no unfair labor practice charge or grievance arising out of
a collective bargaining agreement or other grievance procedure against the
Company or any of its Subsidiaries pending, or, to the Knowledge of the
Company, threatened, that, individually or in the aggregate, has had or
could reasonably be expected to have a Material Adverse Effect;
(b) there is no strike, dispute, slowdown, work stoppage or lockout
pending, or, to the Knowledge of the Company, threatened, against or
involving the Company or any of its Subsidiaries that, individually or in
the aggregate, has had or could reasonably be expected to have a Material
Adverse Effect; or
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(c) there is no Proceeding pending or, to the Knowledge of the Company,
threatened, in respect to which any current or former director, officer,
employee or agent of the Company or any of its Subsidiaries is or may be
entitled to claim indemnification from the Company or any of its
Subsidiaries pursuant to (1) the Certificate of Incorporation or Bylaws of
the Company; (2) any provision of the comparable charter or organizational
documents of any of its Subsidiaries; (3) any indemnification agreement to
which the Company or any Subsidiary of the Company is a party; or (4)
Applicable Law.
Section 3.17 Intangible Property. Except as disclosed in the SEC Documents,
each of the Company and its Subsidiaries owns, possesses or has the right to
employ all licenses, trademarks, service marks and trade names, inventions,
computer programs, technical data and information (collectively, the
"Intellectual Property") presently employed by it in connection with the
businesses now operated by it free and clear of and without violating any
right, claimed right, charge, encumbrance, pledge, security interest,
restriction or lien of any kind of any other person, except where the failure
to own, possess, license or have the right to employ its Intellectual Property
could not reasonably be expected to have a Material Adverse Effect. To the
Company's Knowledge, the Company will not suffer any Material Adverse Effect
with respect to Year 2000 non-compliance.
Section 3.18 Environmental Matters. Neither the Company nor any of its
Subsidiaries has violated any foreign, federal, state or local law or
regulation relating to the protection of human health and safety, the
environment or hazardous or toxic substances or wastes, pollutants or
contaminants ("Environmental Laws") that could reasonably be expected to have
a Material Adverse Effect.
Section 3.19 Insurance. Each of the Company and its Subsidiaries maintains,
or the Company maintains on behalf of its Subsidiaries, insurance (including
self insurance) covering its or their properties, operations, personnel and
businesses, except as could not reasonably be expected to have a Material
Adverse Effect. Such insurance insures against such losses and risks as are
adequate in accordance with customary industry practice to protect the Company
and its Subsidiaries and their respective businesses, except as could not
reasonably be expected to have a Material Adverse Effect. Neither the Company
nor its Subsidiaries has received notice from any insurer or agent of such
insurer that substantial capital improvements or other material expenditures
will have to be made in order to continue such insurance. All such insurance
is outstanding and duly in force on the date hereof, subject only to changes
made in the ordinary course of business, consistent with past practice, that
do not, singly or in the aggregate, materially alter the coverage thereunder
or the risks covered thereby and except where the failure to maintain such
insurance could not reasonably be expected to have a Material Adverse Effect.
Section 3.20 No Brokers or Finders. Except for fees payable to Bear ▇▇▇▇▇▇▇
& Co., Inc., no agent, broker, finder or investment or commercial banker, or
other Person or firm engaged by or acting on behalf of the Company or its
Subsidiaries in connection with the negotiation, execution or performance of
this Agreement is or will be entitled to any brokerage or finder's or similar
fee or other commission as a result of this Agreement, the Stockholders'
Agreement or the transactions contemplated hereby or thereby.
Section 3.21 Vote. Except for the approval by the Company's stockholders of
the issuance of the shares of Common Stock constituting the Second Tranche,
there are no approvals required of the holders of any class or series of
shares or stock of the Company necessary to approve this Agreement or the
Stockholders' Agreement and the transactions contemplated hereby or thereby.
Section 3.22 Internal Procedures. Each of the Company and its Subsidiaries
maintains a system of internal accounting controls sufficient to provide
reasonable assurance that: (a) transactions are executed in accordance with
management's general or specific authorizations; (b) transactions are recorded
as necessary to permit preparation of financial statements in conformity with
generally accepted accounting principles and to maintain accountability for
assets; (c) access to assets is permitted only in accordance with management's
general or specific authorization; and (d) the recorded accountability for
assets is compared with the existing assets at reasonable intervals and
appropriate action is taken with respect thereto.
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Section 3.23 Ability to Meet Obligations. Neither the Company nor any of its
Subsidiaries intends to, nor does it believe that it will, incur debts beyond
its ability to pay such debts as they mature, assuming the ability of the
Company to refinance such debts. The present fair saleable value of the assets
of each of the Company and its Subsidiaries exceeds the amount that it will be
required to be paid on or in respect of its existing debts and other
liabilities (including contingent liabilities) as they become absolute and
matured. The assets of each of the Company and its Subsidiaries do not
constitute unreasonably small capital to carry out its business as conducted
or as proposed to be conducted.
Section 3.24 Relationships with Related Persons. Except as disclosed in the
SEC Documents filed with the SEC prior to the date hereof and except for this
Agreement, the Stockholders' Agreement, the transactions contemplated hereby
and thereby matters relating to the provision of benefits of employees of the
Company or its Subsidiaries, there are no, and since December 31, 1998 have
not been any, undischarged contracts or agreements or other material
transactions between the Company or any of its Subsidiaries, on the one hand,
and any director or executive officer of the Company or any of their
respective Related Persons (as defined below), on the other hand, and no
director or executive officer of the Company or any of their respective
Related Persons have any interest in any of the assets of the Company or any
of its subsidiaries. No executive officer, director of the Company or any of
their respective Related Persons has any claim, charge, action or cause of
action against the Company or any of its Subsidiaries, except for claims for
accrued vacation pay, accrued benefits under the Company benefit plans, claims
for compensation, expense reimbursement and similar obligations and similar
matters and agreements. For purposes hereof, the term "Related Persons" shall
mean (a) each other member of such individual's Family and (b) any Person or
entity that is directly or indirectly controlled by any one or more members of
such individual's Family. For purposes of this definition, the "Family" of an
individual includes (a) such individual, (b) the individual's spouse,
siblings, or ancestors, (c) any lineal descendent of such individual, or their
siblings, or ancestors, or (d) a trust for the benefit of any of the
foregoing.
Section 3.25 Restrictions on Business Activities. Except as set forth in the
SEC Documents and except for the financial covenants in the Credit Agreements,
there is no Contractual Obligation or Order binding upon the Company or its
Subsidiaries or their properties which has or could reasonably be expected to
have the effect of prohibiting or materially impairing any material
acquisition of property by the Company or any of its Subsidiaries or the
conduct of the business by the Company or any of its Subsidiaries.
Section 3.26 Certain Business Practices. None of the Company, any of its
Subsidiaries or, to the Knowledge of the Company, any director, officer,
employee or agent of the Company or any of its Subsidiaries had, in
furtherance of any business of the Company: (1) used any funds for unlawful
contributions, gifts, entertainment or other unlawful payments or expenses
relating to political activity; (2) made any direct or indirect unlawful
payment to any foreign or domestic government official or employee or to any
foreign or domestic political party or campaign; (3) violated or is in
violation of any provision of the Foreign Corrupt Practices Act of 1977, as
amended; or (4) made any bribe, rebate, payoff, influence payment, kickback or
other unlawful payment.
Section 3.27 Disclosure. No representation or warranty of Company contained
in this Agreement, and no statement contained in any document or certificate
furnished or to be furnished by or on behalf of the Company to Purchaser or
any of its representatives pursuant to this Agreement, contains or, as of the
First Closing Date or the Second Closing Date, will contain, any untrue
statement of a material fact, or omits or, as of the First Closing Date or the
Second Closing Date, will omit to state any material fact necessary, in light
of the circumstances under which it was or will be made, in order to make the
statements herein or therein not misleading or necessary in order to fully and
fairly provide the information required to be provided in any such document or
certificate.
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ARTICLE IV.
Representations and Warranties of the Purchasers
Each Purchaser represents and warrants to the Company as follows:
Section 4.1 Organization, Standing and Power. It is an entity duly
organized, validly existing, and in good standing under the laws of the
jurisdiction of its organization and has all requisite power and authority to
own, lease, and operate its properties and to carry on its business as now
being conducted and to execute and deliver this Agreement and the
Stockholders' Agreement and consummate the transactions contemplated hereby
and thereby.
Section 4.2 Authority; Approvals.
(a) (1) The execution and delivery of this Agreement and the Stockholders'
Agreement and the purchase of the Shares to be purchased by it have been duly
and properly authorized; (2) this Agreement has been, and the Stockholders'
Agreement when executed and delivered will be, duly executed and delivered by
such Purchaser and constitutes, or will constitute, the legal, valid and
binding obligation of such Purchaser enforceable against such Purchaser in
accordance with its terms; (3) the purchase of the Shares to be purchased by
it does not conflict with or violate (A) its organizational documents or (B)
assuming the approvals referred to in Section 4.2(b) are duly and timely made
or obtained, any Applicable Law in a manner that could reasonable be expected
to materially hinder or impair the completion of any of the transactions
contemplated hereby; and (4) the purchase of Shares to be purchased by it does
not impose any penalty or other onerous condition on such Purchaser that could
reasonably be expected to materially hinder or impact the completion of any of
the transactions contemplated hereby.
(b) No Approval of any Governmental Entity or any other Person in respect of
any Requirement of Law, Contractual Obligation or otherwise, and no lapse of a
waiting period under a Requirement of Law, is necessary or required in
connection with the execution, delivery or performance by such Purchaser, or
enforcement against such Purchaser, of this Agreement or the transactions
contemplated thereby, except for the filing of a notification report by such
Purchaser under the HSR Act and the expiration or termination of the
applicable waiting period with respect thereto.
Section 4.3 Investment Intent. The Shares to be acquired by it hereunder are
being acquired for its own account for investment and with no intention of
distributing or reselling such Shares or any part thereof or interest therein
in any transaction which would be in violation of the securities laws of the
United States of America or any applicable state or any foreign country or
jurisdiction.
Section 4.4 Purchaser Inquiry. Such Purchaser and its advisors have reviewed
the business, management and financial information made available by or on
behalf of the Company as part of their "due diligence" exercise and have had
an opportunity to ask questions of, and receive answers from, the Company and
its management and advisors concerning the business, management and financial
affairs of the Company and its Subsidiaries, which questions, if any, have
been answered, and have had an opportunity to obtain, and have received, any
additional information deemed necessary by them to form a decision concerning
their investment in the Company contemplated herein; provided, however, that
none of the foregoing shall limit, diminish or constitute a waiver of any
representation, warranty or covenant made under this Agreement by the Company.
Section 4.5 Transfer Restrictions. If such Purchaser should decide to
dispose of any of the Shares to be purchased by it, such Purchaser understands
and agrees that it may do so only pursuant to an effective registration
statement under the Securities Act or pursuant to an exemption from
registration under the Securities Act. In connection with any offer, resale,
pledge or other transfer (individually and collectively, a "Transfer") of any
Shares other than pursuant to an effective registration statement, the Company
may require that the transferor of such Shares provide to the Company an
opinion of counsel which opinion shall be reasonably satisfactory in form and
substance to the Company, to the effect that such Transfer is being made
pursuant to an exemption
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from, or in a transaction not subject to, the registration requirements of the
Securities Act and any applicable state or foreign securities laws. Such
Purchaser agrees to the imprinting, so long as appropriate, of substantially
the following legend on certificates representing the Shares:
THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED
UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR THE SECURITIES LAWS OF ANY
STATE AND MAY NOT BE OFFERED FOR SALE, SOLD OR OTHERWISE TRANSFERRED EXCEPT
PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER SUCH ACT AND
APPLICABLE STATE SECURITIES LAWS OR PURSUANT TO AN APPLICABLE EXEMPTION
FROM THE REGISTRATION REQUIREMENTS OF SUCH ACT AND SUCH LAWS.
The legends set forth above may be removed if and when the Shares
represented by such certificate are disposed of pursuant to an effective
registration statement under the Securities Act or the opinion of counsel
referred to above has been provided to the Company. The Share Certificates
shall also bear any additional legends required by applicable federal, state
or foreign securities laws, which legends may be removed when, in the opinion
of counsel to the Company, the same are no longer required under the
applicable requirements of such securities laws. Such Purchaser agrees that,
in connection with any Transfer of Shares by it pursuant to an effective
registration statement under the Securities Act, it will comply with all
prospectus delivery requirements of the Securities Act. The Company makes no
representation, warranty or agreement as to the availability of any exemption
from registration under the Securities Act with respect to any resale of
Shares.
Section 4.6 Purchaser Status. Such Purchaser represents and warrants to, and
covenants and agrees with the Company that (a) at the time it was offered the
Shares, it was, (b) at the date hereof, it is, and (c) at each of the First
Closing Date and the Second Closing Date, it will be, an accredited investor
as defined in Rule 501(a) under the Securities Act, and has such knowledge,
sophistication and experience in business and financial matters so as to be
capable of evaluating the Company and an investment in the Shares, and is able
to bear the economic risk of such investment.
Section 4.7 Sufficient Funds. Such Purchaser will have available funds
sufficient to purchase its allocation of the Shares in accordance with the
terms of this Agreement and to perform its obligations hereunder.
Section 4.8 Citizenship. Such Purchaser is "a citizen of the United States"
within the meaning of Section 2 of the Shipping Act of 1916, as amended.
Section 4.9 Brokers or Finders. Other than the Commitment Fee, the Company
has not incurred, and will not incur, directly or indirectly, as a result of
any action taken by the Purchaser any liability for brokerage or finders' fees
or agents' commissions or any similar charges in connection with this
Agreement.
ARTICLE V.
Covenants
Section 5.1 Confidentiality. For a period of three years from the date of
this Agreement, the Purchasers will refrain, and will cause their respective
Representatives to refrain from disclosing to any other Person any
Confidential Information. Disclosure of Confidential Information will not be
deemed to be a breach of this Section 5.1 if such disclosure is made with the
consent of the Company or pursuant to a subpoena or order issued by a court of
competent jurisdiction or by a judicial or administrative or legislative body
or committee; provided that, upon receipt by the Purchasers of any subpoena or
order covering Confidential Information of the Company, the Purchasers will
promptly notify the Company of such subpoena or order. If this Agreement is
terminated, the Purchasers further agree that they will, upon the request of
the Company, promptly deliver to the Company all Confidential Information,
including all copies, reproductions and extracts thereof in their possession
or in the possession of any of their Representatives, and, upon the request of
the Company, the Purchasers and their Representatives will destroy all other
documents or records prepared by the Purchasers or their Representatives that
are based on, derived from or otherwise reflect the Confidential Information.
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Section 5.2 Conduct of Business. The Company hereby covenants and agrees
that, until the earlier of the Second Closing or the termination of this
Agreement, unless otherwise expressly contemplated by this Agreement or
consented to in writing by the Purchasers (such consent not to be unreasonably
withheld):
(a) the Company will and will cause each of its Subsidiaries to (1)
operate its business in the usual and ordinary course consistent with past
practices except as contemplated by this Agreement; (2) use commercially
reasonable efforts to maintain and keep its properties and assets in as
good a repair and condition as at present, ordinary wear and tear excepted;
and (3) use all reasonable efforts to keep in full force and effect
insurance and bonds comparable in amount and scope of coverage to that
currently maintained; and
(b) the Company shall not, and shall not permit any of its Subsidiaries
to:
(1) acquire or agree to acquire (whether pursuant to a definitive
agreement, a non-binding letter of intent or otherwise), by merging or
consolidating with, by purchasing an equity interest in or a portion of
the assets of, or by any other manner, any business or any corporation,
partnership, association or other business organization or division
thereof, or otherwise acquire or agree to acquire any assets of any
other Person (other than assets which, individually or in the
aggregate, are not Material to the business or operations of the
Company or any of its Subsidiaries), except for any acquisitions or
agreements to acquire that have previously been disclosed to the
Purchasers;
(2) other than in connection with the Credit Agreements, refinancing
of the debt under the Credit Agreements and financings disclosed in the
SEC Documents, sell, exchange, mortgage, pledge, transfer or otherwise
dispose of, or agree to sell, exchange, mortgage, pledge, transfer or
otherwise dispose of, any of its assets or any assets of any of its
Subsidiaries that are, individually or in the aggregate, Material to
the business or operations of the Company or any of its Subsidiaries;
(3) adopt or propose to adopt any amendments to the Certificate of
Incorporation or Bylaws, or make any Material changes in the Company's
capital structure;
(4) change any of its accounting methods, principles, practices or
policies or make or rescind any express or deemed election relating to
Taxes, settle or compromise any Proceeding relating to Taxes, or change
any of its methods of reporting income or deductions for federal or
other income Tax purposes from those employed in the preparation of the
federal or other income Tax Returns or other Tax Returns for the
taxable year ending December 31, 1997, except as may be required by
Applicable Law or GAAP and except as would not be Material to the
Company or its Subsidiaries;
(5) other than borrowings under or permitted by the Credit Agreements
refinancing of the debt under the Credit Agreements and financings
disclosed in the SEC Documents, incur any obligation for borrowed money
or purchase money indebtedness, whether or not evidenced by a note,
bond, debenture or similar instrument or under any financing lease,
whether pursuant to a sale-and-leaseback transaction or otherwise;
(6) make any loans or advances to any Person, except in the ordinary
course of business;
(7) declare or pay any dividend or make any other distribution
(whether in cash, stock or property) with respect to its capital stock
(or other voting or equity securities or interests, as applicable),
other than dividends paid by any Subsidiary to the Company or another
Subsidiary in the ordinary and usual course of the Company's business;
(8) split, combine, reclassify or amend any term of any of the
Company's shares or capital stock (or other voting or equity securities
or interests, as applicable);
(9) (A) in any Material amount, issue, sell or deliver (whether
through the issuance or granting of options, warrants, commitments,
subscriptions, rights to purchase, or otherwise) any of its shares of
capital stock or other securities other than (i) as contemplated herein
or (ii) pursuant to awards issued and outstanding as of the date hereof
under outstanding options to purchase Common Stock granted
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under the Company's director and employee stock incentive plans
disclosed in the SEC Documents or as required under the terms of any
other security of the Company outstanding as in effect as of the date
of this Agreement or (B) in any Material amount, purchase or otherwise
acquire any of its shares or capital stock, employee or director stock
options, warrants or other equity securities or debt securities other
than pursuant to the terms thereof as in effect as of the date of this
Agreement; or
(10) agree in writing or otherwise to do any of the foregoing.
Section 5.3 Approvals. The Company and the Purchasers each agree to
cooperate and use all commercially reasonable efforts to obtain (and will
promptly prepare all registrations, filings and applications, requests and
notices preliminary to) all Approvals that may be necessary or which may be
reasonably requested by the Company or the Purchasers to consummate the
transactions contemplated by this Agreement and the Stockholders' Agreement.
Section 5.4 HSR Act Notification. To the extent the HSR Act will be
applicable to the acquisition of the Shares by the Purchasers, each of the
parties hereto shall (a) file or cause to be filed, as promptly as practicable
after the execution and delivery of this Agreement, with the Federal Trade
Commission and the United States Department of Justice, all reports and other
documents required to be filed by such party under the HSR Act concerning the
transactions contemplated hereby and (b) promptly comply with or cause to be
complied with any requests by the Federal Trade Commission or the United
States Department of Justice for additional information concerning the
transactions contemplated hereby, in each case so that the waiting period
applicable to this Agreement and the transactions contemplated hereby under
the HSR Act shall expire as soon as practicable after the execution and
delivery of this Agreement. Each party hereto agrees to request, and to
cooperate with the other party or parties in requesting, early termination of
any applicable waiting period under the HSR Act. If after the First Closing
and until the Second Closing, further filings are required under the HSR Act
so that the Purchasers may acquire the Second Tranche, the Company will upon
the written request of a Purchaser, and the Purchasers will upon the written
request of the Company, (a) file or cause to be filed, as promptly as
practicable after the receipt of such notice and in no event later than
fifteen Business Days after the receipt of such notice with the Federal Trade
Commission and the United States Department of Justice, all reports and other
documents required to be filed by such party under the HSR Act concerning the
transactions contemplated in such notice; (b) promptly comply with or cause to
be complied with any requests by the Federal Trade Commission or the United
States Department of Justice for additional information so that the waiting
period applicable thereto under the HSR Act shall expire as soon as
practicable; and (c) cooperate with the other parties in requesting, early
termination of any applicable waiting period under the HSR Act. The Company
will reimburse the Purchasers for any filing fees in connection with the first
such filings by the Purchasers.
Section 5.5 Notification of Certain Matters. The Company shall give prompt
notice to the Purchasers, and the Purchasers shall give prompt notice to the
Company, of (a) the occurrence, or failure to occur, of any event that causes
any representation or warranty contained in any Transaction Document to be
untrue or inaccurate in any material respect at any time from the date of this
Agreement to the Second Closing and (b) any failure of the Company or the
Purchasers to comply with or satisfy, in any material respect, any covenant,
condition or agreement to be complied with or satisfied by it under any
Transaction Document. The provisions of this Section 5.5 shall survive for so
long as any representation, warranty, covenant, or agreement shall survive
hereunder.
Section 5.6 Directors. The Company shall take, or cause to be taken, such
action as may be necessary or advisable to ensure that simultaneously with the
First Closing the Board of Directors shall consist of eight directorships, six
of which shall be held by Company's existing directors and two of which shall
be designees of Inverness/Phoenix Capital LLC pursuant to the Stockholders'
Agreement.
Section 5.7 Indemnification of Directors.
(a) At the First Closing, the Company shall enter into indemnification
agreements with each of the directors designated by the Purchasers.
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(b) The Company currently maintains a directors' and officers' liability
insurance policy providing an aggregate of $10.0 million in coverage. The
Company shall use all commercially reasonable efforts to ensure that, as of
the date of their appointment, the directors and officers liability policy
provide coverage for the Purchasers' designees in their capacity as directors
of the Company on the same basis as the existing directors of the Company.
Section 5.8 Listing. Prior to each of the First Closing and the Second
Closing, the Company shall file an additional listing application with the
Nasdaq National Market with respect to the shares of Common Stock constituting
the First Tranche and Second Tranche, respectively, and shall use reasonable
best efforts to obtain the approval of the Nasdaq National Market to the
listing of such Shares of Common Stock.
Section 5.9 Stockholders' Meeting; Proxy Statement.
(a) The Company shall take all action necessary in accordance with
Applicable Law and the Certificate of Incorporation and Bylaws to duly call,
give notice of, convene and hold its 1999 annual meeting of stockholders (the
"Meeting") as promptly as practicable after the date hereof, but in all cases
prior to July 15, 1999, to consider and vote upon the approval and adoption
under the rules of the Nasdaq National Market of the issuance of the shares of
Common Stock constituting the Second Tranche. The Company, through its
officers and the Board, shall (1) unanimously recommend to the stockholders of
the Company that they vote in favor of the adoption and approval of the
issuance of shares of Common Stock constituting the Second Tranche; (2) use
commercially reasonable efforts to solicit from the stockholders of the
Company proxies in favor of such adoption and approval; and (3) take all other
commercially reasonable efforts to secure a vote of the stockholders of the
Company in favor of such adoption and approval; provided, however, that
neither the Board nor any committee thereof shall withdraw or modify, or
propose to withdraw or modify, in any manner adverse to the Purchasers the
approval or recommendation by the Board or any such committee thereof of the
issuance of the shares of Common Stock constituting the Second Tranche or take
any action having such effect.
(b) As promptly as practicable after the date hereof, the Company shall
prepare, and file with the Commission under the Exchange Act, shall use
commercially reasonable efforts to have cleared by the Commission, and
promptly thereafter shall mail to its stockholders, a proxy statement with
respect to the Meeting. The proxy statement shall contain the unanimous
recommendation of the Board that the stockholders of the Company vote in favor
of the adoption and approval of the issuance of the shares of Common Stock
constituting the Second Tranche. The Company shall vote all management proxies
in favor of such adoption and approval, except for such proxies that
specifically indicate to the contrary. The Company shall notify the Purchasers
promptly of the receipt of any comments on, or any requests for amendments or
supplements to, the proxy statement by the Commission, and the Company shall
supply the Purchasers with copies of all correspondence between it and its
representatives, on the one hand, and the Commission or members of its staff,
on the other, with respect to the proxy statement. The Company, after
consultation with the Purchasers, shall use commercially reasonable efforts to
respond promptly to any comments made by the Commission with respect to the
proxy statement. The Company and the Purchasers shall cooperate with each
other in preparing the proxy statement, and the Company and the Purchasers
shall each use commercially reasonable efforts to obtain and furnish the
information required to be included in the proxy statement. Each of the
Company and the Purchasers agrees promptly to correct any information provided
by it for use in the proxy statement if and to the extent that such
information shall have become false or misleading in any material respect, and
the Company further agrees to take all steps necessary to cause the proxy
statement as so corrected to be filed with the SEC and to be disseminated
promptly to holders of shares of the Common Stock, in each case as and to the
extent required by Applicable Law.
Section 5.10 Rights Plan Amendment. The Company shall take all action
necessary to cause the Rights Agreement dated as of February 19, 1998 by and
between the Company and ChaseMellon Shareholder Services, L.L.C. as Rights
Agent (as amended, the "Trico Rights Agreement"), to be amended prior to the
First Closing Date so that the execution and delivery of this Agreement and
the consummation of the transactions contemplated hereby shall not cause the
rights issued pursuant to the Trico Rights Agreement to become exercisable
under the Trico Rights Agreement.
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Section 5.11 Use of Proceeds. The Company shall use the proceeds from the
sale of the Shares for working capital and general corporate purposes.
ARTICLE VI.
Conditions Precedent to Closing
Section 6.1 Conditions Precedent to Each Party's Obligation. The respective
obligations of the Purchasers and the Company to effect the transactions
contemplated hereby are subject to the satisfaction on or prior to (1) the
First Closing Date, in the case of the First Closing, or (2) the Second
Closing Date, in the case of the Second Closing, of the following conditions:
(a) Approvals. All Approvals of, or expirations of waiting periods imposed
by, any Governmental Entity necessary for the consummation of the transactions
contemplated by this Agreement shall have been filed, occurred, or been
obtained, as applicable, including the expiration or termination of any
applicable waiting period under the HSR Act, and including, in the case of the
Second Closing, the approval contemplated in Section 5.9 hereof.
(b) No Injunctions or Restraints. No temporary restraining order,
preliminary or permanent injunction, or other order issued by any court of
competent jurisdiction or other legal restraint or prohibition preventing the
consummation of the transactions contemplated hereby shall be in effect.
(c) No Action. No action shall have been taken nor any statute, rule, or
regulation shall have been enacted by any Governmental Entity that makes the
consummation of the transactions contemplated hereby illegal.
Section 6.2 Conditions Precedent to Obligation of the Purchasers. The
obligation of the Purchasers to effect the transactions contemplated by this
Agreement is subject to the satisfaction of the following conditions unless
waived, in whole or in part, by the Purchasers:
(a) Representations and Warranties. The representations and warranties of
the Company set forth in this Agreement shall be true and correct in all
respects (provided that, for purposes of this Section 6.2(a), any
representation or warranty of the Company contained herein that is qualified
by a materiality standard or a Material Adverse Effect qualification shall be
read without regard to any such qualifications as if such qualifications were
not contained therein) as of the date of this Agreement and as of the First
Closing Date and as of the Second Closing Date as though made on and as of the
First Closing Date and the Second Closing Date, respectively, except for such
failures which, individually or in the aggregate, have not had and could not
reasonably be expected to have a Material Adverse Effect, and the Purchasers
shall have received a certificate to the foregoing effect signed on behalf of
the Company and its Subsidiaries by the chief executive officer or by the
chief financial officer of the Company at each of the First Closing and the
Second Closing, if any.
(b) Performance of Obligations. The Company and its subsidiaries shall have
performed in all material respects all obligations required to be performed by
it or them under this Agreement prior to the First Closing Date and prior to
the Second Closing Date, if any, and the Purchasers shall have received a
certificate to such effect signed on behalf of the Company and its
Subsidiaries by the chief executive officer or by the chief financial officer
of the Company at each of the First Closing and the Second Closing, if any.
(c) No Adverse Action or Decision. There shall be no action, suit,
investigation or proceeding, pending or threatened, against or affecting the
Company or any of its Subsidiaries or any of their respective properties or
rights, or any of their Affiliates, officers or directors, before any court,
arbitrator or administrative or governmental body which (1) seeks to restrain,
enjoin or prevent the consummation of or otherwise affect the transactions
contemplated by this Agreement or the Stockholders' Agreement or (2) questions
the validity or legality of any such transaction or seeks to recover damages
or to obtain other relief in connection with any such transaction.
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(d) Consents Under Agreements. The Purchasers shall have been furnished with
evidence of all consents or approvals, including, in the case of the Second
Closing, the approval of the Company's stockholders of the issuance of the
shares of Common Stock constituting the Second Tranche, required to be
obtained by the Company or any of its Subsidiaries with respect to the
consummation of each of the transactions contemplated by this Agreement the
failure of which to obtain reasonably could be expected to result in a
Material Adverse Effect, and each such consent or approval shall be
unconditional.
(e) Legal Opinions. The Purchasers shall have received from Jones, Walker,
Waechter, Poitevent, Carrere & ▇▇▇▇▇▇▇, L.L.P., counsel to the Company and its
Subsidiaries, or other counsel to the Company and its Subsidiaries reasonably
acceptable to the Purchasers an opinion dated the First Closing Date, with
respect to the First Closing, and the Second Closing Date, with respect to the
Second Closing, in form and substance reasonably acceptable to the Purchasers.
(f) Appointment to the Board. The Board shall have appointed the designees
of Inverness/Phoenix Capital LLC to the Board in accordance with Section 5.6
and the Purchasers shall have received a copy of the resolutions of the Board
pursuant to which such appointments were made.
(g) Closing Deliveries. All documents, instruments, certificates or other
items required to be delivered by the Company pursuant to Section 7.2(b) or
Section 7.4(b), as the case may be, shall have been delivered.
Section 6.3 Conditions Precedent to Obligations of the Company. The
obligation of the Company to effect the transactions contemplated by this
Agreement is subject to the satisfaction of the following conditions unless
waived, in whole or in part, by the Company:
(a) Representations and Warranties. The representations and warranties of
the Purchasers set forth in this Agreement shall be true and correct in all
respects (provided that, for purposes of this Section 6.3(a), any
representation or warranty of the Purchasers contained herein that is
qualified by a materiality standard or a Material Adverse Effect qualification
shall be read without regard to any such qualifications as if such
qualifications were not contained therein) as of the date of this Agreement
and as of the First Closing Date and as of the Second Closing Date as though
made on and as of the First Closing Date and the Second Closing Date,
respectively, except for such failures which, individually or in the
aggregate, have not had and could not reasonably be expected to have a
Material Adverse Effect, and the Company shall have received a certificate to
the foregoing effect signed on behalf of the Purchasers by its managing member
at each of the First Closing and the Second Closing, if any.
(b) Performance of Obligations of the Purchasers. The Purchasers shall have
performed in all material respects the obligations required to be performed by
them under this Agreement prior to the First Closing Date and prior to the
Second Closing Date, if any, and the Company shall have received a certificate
to such effect signed on behalf of the Purchasers by its managing member at
each of the First Closing and the Second Closing, if any.
(c) Closing Deliveries. All documents, instruments, certificates or other
items required to be delivered by the Purchasers pursuant to Section 7.2(a) or
Section 7.4(a) shall have been delivered.
ARTICLE VII.
Closings
Section 7.1 First Closing. Subject to the satisfaction or waiver of the
conditions set forth in Article VI, the purchase and sale of the First Tranche
to be purchased by the Purchasers hereunder (the "First Closing") will take
place at the offices of ▇▇▇▇▇▇ & ▇▇▇▇▇▇ L.L.P., 2300 First City Tower, ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇, ▇▇▇▇▇, at 10:00 a.m., local time, on the third
Business Day following the satisfaction or waiver (subject to Applicable Law)
of each of the conditions to the obligations of the parties to effect the
transactions to occur at
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such First Closing as set forth in Article VI, or on such other date as
mutually agreed to by the parties hereto. The date on which the First Closing
occurs is herein referred to as the "First Closing Date". All closing
transactions at the First Closing shall be deemed to have occurred
simultaneously.
Section 7.2 Actions to Occur at the First Closing.
(a) At the First Closing, the Purchasers shall deliver to the Company the
following:
(1) Purchase Price. An amount equal to the First Tranche Purchase Price
for the First Tranche in accordance with Article II.
(2) Certificates. The certificates described in Sections 6.3(a) and
6.3(b).
(3) Stockholders' Agreement. The Stockholders' Agreement, duly executed
by the Purchasers.
(b) At the First Closing, the Company shall deliver to the Purchasers (or to
their respective designees as indicated otherwise) the following:
(1) Share Certificates. Certificates representing the shares of Common
Stock constituting the First Tranche.
(2) Commitment Fee. Cash in the amount of $1,000,000, constituting
partial payment of the Commitment Fee in accordance with Article II.
(3) Stockholders' Agreement. The Stockholders' Agreement, duly executed.
(4) Certificates. The certificates described in Sections 6.2(a) and
6.2(b).
(5) Consents Under Agreements. The original of each consent or approval,
if any, pursuant to Section 6.2(d).
(6) Legal Opinions. The opinions of counsel referred to in Section
6.2(e).
(7) Appointment to the Board. The resolutions of the Board referred to in
Section 6.2(f).
Section 7.3 Second Closing. Subject to the satisfaction or waiver of the
conditions set forth in Article VI, the purchase and sale of the Second
Tranche to be purchased by the Purchasers hereunder (the "Second Closing")
will take place at the offices of ▇▇▇▇▇▇ & ▇▇▇▇▇▇ L.L.P., 2300 First City
Towers, ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇, ▇▇▇▇▇, at 10:00 a.m., local time, on the
third Business Day following the satisfaction or waiver (subject to Applicable
Law) of each of the conditions to the obligations of the parties to effect the
transactions to occur at such Second Closing as set forth in Article VI, or on
such other date as mutually agreed to by the parties hereto. The date on which
the Second Closing occurs is herein referred to as the "Second Closing Date".
All closing transactions at the Second Closing shall be deemed to have
occurred simultaneously.
Section 7.4 Actions to Occur at the Second Closing.
(a) At the Second Closing, the Purchasers shall deliver to the Company the
following:
(1) Purchase Price. An amount equal to the Second Tranche Purchase Price
for the Second Tranche in accordance with Article II.
(2) Certificates. The certificates described in Sections 6.3(a) and
6.3(b).
(b) At the Second Closing, the Company shall deliver to the Purchasers (or
to their respective designees as indicated otherwise) the following:
(1) Share Certificates. Certificates representing the shares of Common
Stock constituting the Second Tranche.
(2) Commitment Fee. Cash in the amount of $1,000,000, constituting
payment of the remainder of the Commitment Fee in accordance with Article
II if the Second Closing occurs on or before July 15, 1999.
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(3) Certificates. The certificates described in Sections 6.2(a) and
6.2(b).
(4) Consents Under Agreements. The original of each consent or approval,
if any, pursuant to Section 6.2(d), including a certificate from the
Company with respect to the approval of the Company's stockholders of the
issuance of the shares of Common Stock constituting the Second Tranche.
(5) Legal Opinions. The opinions of counsel referred to in Section
6.2(e).
ARTICLE VIII.
Termination
Section 8.1 Termination. This Agreement may be terminated prior to the First
Closing:
(a) by mutual consent of the Purchasers and the Company;
(b) by either the Purchasers or the Company:
(1) in the event of a breach by the other party of any representation,
warranty, covenant or agreement contained in this Agreement which (A) would
give rise to the failure of a condition set forth in Section 6.2 or 6.3,
and (B) cannot be cured or, if curable, has not been cured within 20 days
(the "Cure Period") following receipt by the breaching party of written
notice of such breach;
(2) if a court of competent jurisdiction or other Governmental Entity
shall have issued an order, decree, or ruling or taken any other action
(which order, decree, or ruling the Purchasers and the Company shall use
all commercially reasonable efforts to lift), in each case permanently
restraining, enjoining, or otherwise prohibiting the transactions
contemplated by this Agreement, and such order, decree, ruling, or other
action shall have become final and nonappealable; provided, however, that
the right to terminate this Agreement under this clause (2) shall not be
available to any party whose breach of this Agreement has been the cause
of, or resulted in, such order, decree, ruling or other action; or
(3) if the First Closing shall not have occurred by May 15, 1999,
provided, however, that the right to terminate this Agreement under this
clause (3) shall not be available to any party whose breach of this
Agreement has been the cause of, or resulted in, the failure of the First
Closing to occur on or before such date.
Unless agreed to otherwise in writing by the Purchasers and the Company,
this Agreement shall automatically terminate on September 30, 1999 if the
stockholder approval contemplated in Section 5.9 has not been obtained.
The right of any party hereto to terminate this Agreement pursuant to this
Section 8.1 shall remain operative and in full force and effect regardless of
any investigation made by or on behalf of any party hereto, any person
controlling any such party or any of their respective officers, directors,
employees, accountants, consultants, legal counsel, agents, or other
representatives whether prior to or after the execution of this Agreement.
Section 8.2 Effect of Termination. In the event of the termination of this
Agreement, written notice thereof shall forthwith be given to the other party
specifying the provision hereof pursuant to which such termination is made,
unless such termination has occurred due to the lapse of time, and, except in
the case of a termination pursuant to Section 8.1(b)(1), this Agreement
(except for the provisions of this Section 8.2, and Sections 5.1, 10.5, 10.6,
10.9, 10.10, 10.11, 10.12, and 10.13, which shall survive such termination)
shall forthwith become null and void. Subject to the provisions of Section
10.5, in the event of a termination of this Agreement by either the Company or
the Purchasers as provided above, other than a termination pursuant to Section
8.1(b)(1), there shall be no liability on the part of the Company or the
Purchasers; provided, however, that nothing in this Section 8 shall be deemed
to release either party from any breach by such party of the terms and
provisions of this Agreement or to impair the right of either party to compel
specific performance by the other party of its obligations under this
Agreement.
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ARTICLE IX.
Recovery of Fees
Any Party who shall obtain a final judgment in a court of competent
jurisdiction for the payment of damages by another Party for a breach of this
Agreement shall be entitled to recover reasonable attorneys' fees and court
costs incurred in connection with the obtaining of such judgment.
ARTICLE X.
Miscellaneous
Section 10.1 Survival of Provisions.
(a) The representations and warranties of the Company and the Purchasers
made herein or in the Stockholders' Agreement and the covenants of the Company
and the Purchasers to be complied with on or prior to the First Closing Date,
the Second Closing Date or September 30, 1999, as the case may be, shall
remain operative and in full force and effect pursuant to their terms,
regardless of (1) any investigation made by or on behalf of the Purchasers or
the Company, as the case may be, or (2) acceptance of any of the Shares and
payment by the Purchasers therefor, until April 16, 2002; provided, however,
that the representations and warranties of the Company made in Sections 3.1,
3.3 and 3.4 shall not terminate.
Section 10.2 No Waiver; Modification in Writing. No failure or delay on the
part of the Company or a Purchaser in exercising any right, power or remedy
hereunder shall operate as a waiver thereof, nor shall any single or partial
exercise of any such right, power or remedy preclude any other or further
exercise thereof or the exercise of any other right, power or remedy. Without
limiting the rights that any party may have for fraud under common law, and
except with respect to claims arising from or liability based on a breach of
the Company's representation and warranty in Section 3.5(a), the remedies
provided for herein are cumulative and are the exclusive remedies available to
the Company or the Purchasers at law or in equity. The provisions of this
Agreement, including the provisions of this sentence, may not be amended,
modified or supplemented, and waivers or consents to departures from the
provisions hereof may not be given without the written consent of the Company,
on the one hand, and the Purchasers or their permitted assigns, on the other
hand; provided that notice of any such waiver shall be given to each party
hereto as set forth below. Any amendment, supplement or modification of or to
any provision of this Agreement, or any waiver of any provision of this
Agreement, shall be effective only in the specific instance and for the
specific purpose for which made or given. Except where notice is specifically
required by this Agreement, no notice to or demand on any party hereto in any
case shall entitle the other party to any other or further notice or demand in
similar or other circumstances.
Section 10.3 Specific Performance. The parties recognize that in the event
the Company or the Purchasers should refuse to perform under the provisions of
this Agreement, monetary damages alone will not be adequate. The Purchasers or
the Company, as the case may be, shall therefore be entitled, in addition to
any other remedies which may be available, including money damages, to obtain
specific performance of the terms of this Agreement, without any requirement
for the posting of any bond. In the event of any action to enforce this
Agreement or the Stockholders' Agreement specifically, the Company and the
Purchasers hereby waive the defense that there is an adequate remedy at law.
Section 10.4 Severability. If any term or other provision of this Agreement
is invalid, illegal, or incapable of being enforced by any rule of applicable
law, or public policy, all other conditions and provisions of this Agreement
shall nevertheless remain in full force and effect so long as the economic or
legal substance of the transactions contemplated herein are not affected in
any manner materially adverse to any party. Upon such determination that any
term or other provision is invalid, illegal, or incapable of being enforced,
the parties hereto shall negotiate in good faith to modify this Agreement so
as to effect the original intent of the parties as closely as possible in a
mutually acceptable manner in order that the transactions contemplated herein
are consummated as originally contemplated to the fullest extent possible.
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Section 10.5 Fees and Expenses.
(a) The Company shall pay its own expenses incurred in connection with the
negotiation, execution, delivery, performance and consummation of this
Agreement.
(b) Unless this Agreement is terminated by the Company pursuant to Section
8.1(b)(1), within 30 days after the earlier of (1) the Second Closing Date or
(2) July 15, 1999 the Company shall reimburse each of the Purchasers for the
out-of-pocket expenses of the Purchasers or any of their Affiliates (whether
or not incurred prior to the date hereof), including, without limitation, the
fees, disbursements and other reasonable expenses of attorneys, accountants
and any other advisors thereto, arising out of or relating to the negotiation,
execution, delivery and consummation of this Agreement.
Section 10.6 Parties in Interest. This Agreement shall be binding upon and,
except as provided below, inure solely to the benefit of each party hereto and
their successors and assigns, and nothing in this Agreement, express or
implied, is intended to confer upon any other person any rights or remedies of
any nature whatsoever under or by reason of this Agreement.
Section 10.7 Notices. All notices and other communications hereunder shall
be in writing and shall be deemed given if delivered personally or mailed by
registered or certified mail (return receipt requested) to the parties at the
following addresses (or at such other address for a party as shall be
specified by like notice):
(a) If to the Purchasers, to:
Inverness/Phoenix Capital LLC
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇. ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇▇ ▇. ▇▇▇▇▇ III
(b) If to the Company, to:
Trico Marine Services, Inc.
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Attn: Chairman
Any of the above addresses may be changed at any time by notice given as
provided above; provided, however, that any such notice of change of address
shall be effective only upon receipt. All notices, requests or instructions
given in accordance herewith shall be deemed received on the date of delivery,
if hand delivered, on the date of receipt, if telecopied, three Business Days
after the date of mailing, if mailed by registered or certified mail, return
receipt requested, and one Business Day after the date of sending, if sent by
Federal Express or other recognized overnight courier.
Section 10.8 Counterparts. This Agreement may be executed and delivered
(including by facsimile transmission) in one or more counterparts, all of
which shall be considered one and the same agreement and shall become
effective when one or more counterparts have been signed by each of the
parties and delivered to the other parties, it being understood that all
parties need not sign the same counterpart.
Section 10.9 Entire Agreement. This Agreement (which term shall be deemed to
include the Exhibits and Schedules hereto and the other certificates,
documents and instruments delivered hereunder) and the Stockholders' Agreement
constitute the entire agreement of the parties hereto and supersede all prior
agreements, letters of intent and understandings, both written and oral, among
the parties with respect to the subject matter hereof. There are no
representations or warranties, agreements, or covenants other than those
expressly set forth in this Agreement and the Stockholders Agreement.
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Section 10.10 Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF DELAWARE, WITHOUT GIVING
EFFECT TO ANY CONFLICTS OF LAW PROVISIONS.
Section 10.11 Public Announcements. The Company, on the one hand, and the
Purchasers, on the other, shall consult with each other before issuing any
press release or otherwise making any public statements with respect to this
Agreement or the transactions contemplated hereby, except for statements
required by Applicable Law or by any listing agreements with or rules of any
national securities exchange or the National Association of Shares Dealers,
Inc., or made in disclosures reasonably determined as required to be filed
pursuant to the Securities Act or the Exchange Act.
Section 10.12 Assignment. Neither this Agreement nor any of the rights,
interests, or obligations hereunder shall be assigned by any of the parties
hereto, whether by operation of law or otherwise; provided, however, that upon
notice to the Company, (a) each Purchaser may assign or delegate any or all of
its rights or obligations under this Agreement to any Affiliate or Partner
thereof and (b) nothing in this Agreement shall limit each Purchaser's ability
to assign its rights under this Agreement to any institutional investor that
provides funds to the Purchasers without the consent of the Company. In the
event of such an assignment, the provisions of this Agreement shall inure to
the benefit of and be binding on the Purchaser's assigns. Any attempted
assignment in violation of this Section 10.12 shall be null and void.
Section 10.13 Director and Officer Liability. The directors, officers,
partners, members and stockholders of the Purchasers, the Company and their
respective Affiliates shall not have any personal liability or obligation
arising under this Agreement (including any claims that the Company or the
Purchasers may assert) other than as an assignee of this Agreement.
Section 10.14 Headings. The headings of this Agreement are for convenience
of reference only and are not part of the substance of this Agreement.
[The remainder of this page is intentionally left blank.]
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IN WITNESS WHEREOF, each of the parties hereto has caused this Agreement to
be executed by its duly authorized officer as of the date first written above.
TRICO MARINE SERVICES, INC.
By: __________________________________________
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Vice President and Chief Financial
Officer
INVERNESS/PHOENIX PARTNERS LP
By: Inverness/Phoenix Capital LLC,
its General Partner
By: Inverness Management Fund I LLC,
its Managing Member
By: Key-Comis Limited Partnership,
its Managing Member
By: ▇.▇. ▇▇▇▇▇ LLC,
its General Partner
By: ___________________________
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇, III
Title: Managing Member
EXECUTIVE CAPITAL PARTNERS I LP
By: Inverness/Phoenix Capital LLC,
its General Partner
By: Inverness Management Fund I LLC,
its Managing Member
By: Key-Comis Limited Partnership,
its Managing Member
By: ▇.▇. ▇▇▇▇▇ LLC,
its General Partner
By: ___________________________
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇, III
Title: Managing Member
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