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EXHIBIT 2
FIRST AMENDMENT TO
STOCK PURCHASE AND MERGER AGREEMENT
THIS FIRST AMENDMENT TO STOCK PURCHASE AND MERGER AGREEMENT, (this
"Amendment") is made and entered into as of the 31st day of August, 1998 by and
among TransCoastal Marine Services, Inc., a Delaware corporation ("Acquiror"),
and TransCoastal Acquisition, Inc., a Louisiana corporation, ("Acquisition
Corp."); ▇▇▇▇▇▇▇ GMP International, Inc., a Louisiana corporation ("▇▇▇▇▇▇▇
GMP"); ▇▇▇▇▇▇▇ Marine, Inc., a Louisiana corporation ("Dickson Marine"); Dickson
Nigeria, Ltd., a Nigerian corporation ("▇▇▇▇▇▇▇ Nigeria"); Servicios y
Construcciones Petroleras Ventura, C.A., a Venezuelan corporation ("Servicios y
Construcciones"); Ventura Resources, Inc., a Louisiana corporation ("Ventura"),
(Dickson GMP, ▇▇▇▇▇▇▇ Marine, Dickson Nigeria, Servicios y Construcciones and
Ventura being referred to individually or collectively as the "▇▇▇▇▇▇▇ Group");
and ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, ▇▇. ("▇▇▇▇▇▇▇▇▇" or "Shareholder"); The spouse of the
Shareholder is joining in and consenting to the execution of this Amendment.
▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇. ("▇▇▇▇▇▇▇"), ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ ("▇▇▇▇▇▇▇") and ▇▇▇▇▇▇ ▇.
▇▇▇▇▇▇ ("▇▇▇▇▇▇"), each a potential Transferee, if assigned stock in the ▇▇▇▇▇▇▇
Group pursuant to Section 11.05 of the Stock Purchase and Merger Agreement, also
join in this Amendment and, together with ▇▇▇▇▇▇▇▇▇ are referred to collectively
as "Shareholder."
WHEREAS, the parties hereto have entered into that certain Stock Purchase
and Merger Agreement, dated as of August 1, 1998 (as amended hereby, the
"Agreement") (capitalized terms used but not defined herein shall have the
respective meanings ascribed to such terms in the Agreement);
WHEREAS, the parties desire to amend certain provisions of the Agreement;
NOW THEREFORE, in consideration of the foregoing and the respective
representations, warranties, covenants and agreements contained herein, the
parties hereto agree as follows:
1. Section 2.03(b) of the Agreement is amended to read as follows:
"(b) (i) Delivery by the Acquiror of $8,800,000, less Long-Term Debt
plus accrued interest as of the Closing Date (as hereinafter defined) of
the ▇▇▇▇▇▇▇ Group as set forth on Annex III-Disclosure Schedule
("Schedule") 2.03(b)(i) as adjusted to the Closing Date, such remaining
funds to be paid by wire transfer or other immediately available funds
approved by Shareholder in accordance with the instructions set forth in
Schedule 2.03(b)(i) and (ii) issuance by the Acquiror of 1,300,000 shares
of Acquiror Common Stock to Shareholder in accordance with the sharing
ratio set forth in Schedule 2.07, as updated to the date of Closing
(collectively, the "Initial Consideration"). The number of Acquiror Common
Stock issued
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as part of the Initial Consideration pursuant to this Section 2.03(b)
hereof shall be adjusted to account for any changes in the outstanding
Acquiror Common Stock resulting from a subdivision or consolidation of
shares, share split, reverse share split, share distribution or combination
of shares or the payment of a share dividend; and"
2. The two (2) references to "$165,000" in subpart (b) of the second
sentence of Section 2.05 of the Agreement are changed to "$190,066.18".
3. The first paragraph of Section 2.07(a) of the Agreement is amended to
read as follows:
"(a) an earned payout amount (the "Earn-Out Payment") based upon the
Adjusted EBTDA of the ▇▇▇▇▇▇▇ Group for the twelve month period commencing
on the first day of September, 1998 (the "Earn-Out Period"), to be
calculated as follows:"
4. Section 2.07(a)(iii) of the Agreement is amended to read as follows:
"(iii) if the ▇▇▇▇▇▇▇ Group's Adjusted EBTDA for the Earn-Out Period
is greater than $7,000,000, the Gross Earn-Out Payment shall equal 400,000
shares of Acquiror's Common Stock and $7,268,750 in cash. The number of
shares of Acquiror Common Stock issued as part of the Contingent
Consideration pursuant to this Section 2.07 hereof shall be adjusted to
account for any change in the outstanding Acquiror Common Stock resulting
from a subdivision or consolidation of shares, share split, reverse share
split, share distribution or combination of shares or the payment of a
share dividend."
5. Section 2.07(b) of the Agreement is amended to read as follows:
"(b) In the event ▇▇▇▇▇▇▇▇▇ directs Acquiror to issue Preferred Stock
of Acquiror in lieu of cash to be paid pursuant to (a), ▇▇▇▇▇▇▇▇▇ shall
notify Acquiror one (1) Business Day preceding the Earn-Out Payment and
Acquiror shall issue to ▇▇▇▇▇▇▇▇▇ Preferred Stock of the Acquiror with
substantially the same terms as set forth in Annex IV. It is understood and
agreed that ▇▇▇▇▇▇▇▇▇ may specify the amounts of the cash portion of the
Contingent Consideration to be paid in cash or in Preferred Stock or a
combination of cash and Preferred Stock, in any portions as Shareholder in
his sole and absolute discretion may determine."
6. Section 2.08(b) of the Agreement is amended to read as follows:
"(b) If the Shareholder or Shareholder Representative fail to object
to the Acquiror's calculation of Adjusted EBTDA and/or the Net Earn-Out
Payment in the manner set forth in Section 2.08(a), Acquiror shall make a
payment to the Shareholder or Shareholder Representative in cash and shares
pro rata in accordance with Schedule 2.07, as updated to
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the date of Closing, of an amount equal to the Net Earn-Out Payment (as set
forth in Annex II hereto) as calculated in accordance with the Earn-Out
Report (unless Adjusted EBTDA is not greater than $4,000,000 in which case
no payment shall be made). If the Acquiror and the Shareholder or
Shareholder Representative agree upon a different amount of Adjusted EBTDA
or Net Earn-Out Payment or if, absent such agreement, the matter is
submitted to arbitration and decided thereby, then, the Acquiror shall make
the Net Earn-Out Payment, if any, determined in accordance with Schedule
2.07, as updated to the date of Closing, based on such agreed or
arbitration determined amount of Adjusted EBTDA or Net Earn-Out Payment.
All payments and issuances of stock under this Section 2.08(b) shall be
payable and made on and as of the fifth Business Day following the 30-day
period in which the Shareholder or Shareholder Representative had the
opportunity but failed to make any objection, after agreement by the
parties or upon a final determination by the arbitrators, as applicable;
provided, however, that it is understood that it may not be practicable to
physically deliver the Stock Certificate on such date, but Acquiror will
deliver satisfactory Letters of Authorization to its Transfer Agent so
directing the issuance of such stock as of such date."
7. Section 4.11 of the Agreement is amended to read as follows:
"4.11 PERMITS. Schedule 4.11 lists for the ▇▇▇▇▇▇▇ Group all permits,
licenses, certificates, authorizations and approvals granted by any
Governmental Authority (each, a "Permit") and used or held by one or more
of the ▇▇▇▇▇▇▇ Group, or any of their Affiliates in connection with the
ownership and operation of the Business (the "Scheduled Permits"). The
Scheduled Permits constitute all Permits necessary for the continued
ownership, use and operation of the Business consistent in all material
respects with the past practices of the ▇▇▇▇▇▇▇ Group, except the Air
Quality Permit and a Storm Water Discharge Permit for the ▇▇▇▇▇▇▇ Group
operations at Belle ▇▇▇▇▇▇ as set forth on Schedule 4.24. Except as set
forth in Schedule 4.11, the Scheduled Permits are valid and in full force
and effect and no Scheduled Permit is in default, and no condition exists
that with notice or lapse of time or both would constitute a default, under
the Scheduled Permits. All fees and other payments due and owing in
connection with the Scheduled Permits have been paid in full and in a
timely manner so as to prevent any lapse or revocation thereof."
8. Section 9.01 of the Agreement is amended to read as follows:
"9.01 BY SHAREHOLDER. Subject to the terms and conditions of this
Article IX, the Shareholder hereby agrees to indemnify, defend and hold
harmless Acquiror and its directors, officers, employees, consultants,
Affiliates and controlling persons (hereinafter, including the ▇▇▇▇▇▇▇
Group and its Subsidiaries after the Closing, collectively, the "Acquiror
Indemnified Parties") from and against all Claims (as defined below)
asserted against, imposed upon or incurred by Acquiror or any Acquiror
Indemnified Party, directly or indirectly, by reason of, arising out of, or
resulting from (a) the inaccuracy or breach of any representation or
warranty of the ▇▇▇▇▇▇▇ Group or such Shareholder contained in or made
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pursuant to this Agreement, including, but not limited to, any
environmental matter in Section 4.24 and any Claims associated with the Air
Quality Permit or the Storm Water Discharge Permit; and (b) the breach of
any covenant or agreement of the ▇▇▇▇▇▇▇ Group or such Shareholder
contained in or made pursuant to this Agreement; provided, however,
Acquiror and Acquiror Indemnified Parties covenant and agree that in no
event shall the liability, in the aggregate, of the Shareholder, in his
capacity as indemnifying party, for any and all indemnified Claims under
this Article IX exceed the Purchase Price, subject, however, to the
provisions of Section 9.07(b). As used in this Section 9.01, the term
"Claim" shall include (i) all debts, liabilities and obligations; (ii) all
losses, damages, reasonable costs and expenses (including, without
limitation, interest (including prejudgment interest in any litigated
matter), but excluding any allocation of overhead costs and expenses of
Acquiror or any of its Subsidiaries), penalties, court costs and reasonable
legal, accounting, consulting and engineering fees and expenses; (iii) all
reasonable and necessary costs that may be attributable to an Environmental
Condition or that may be necessary to comply with Environmental Laws,
including, but not limited to, the removal of Hazardous Materials and the
remediation of any property according to standards established by
Environmental Law or standards established on a case-by-case basis by any
Governmental Authority according to Environmental Law; and (iv) all
demands, Claims, actions, costs of investigation, causes of action,
proceedings, arbitrations, judgments, settlements and assessments, whether
or not ultimately determined to be valid. Acquiror has no obligation to
seek recovery of any Claim, or any portion thereof, from any insurance
policies covering the ▇▇▇▇▇▇▇ Group and/or Shareholder in effect prior to
the Closing, but will reasonably cooperate with Shareholder in
Shareholder's seeking such recovery. In the event that the ▇▇▇▇▇▇▇ Group
and/or the Shareholder recover from such an insurance policy for a Claim,
or a portion thereof made by Acquiror, and such insurance recovery was paid
to Acquiror by the insurance company, then Acquiror shall reimburse the
▇▇▇▇▇▇▇ Group and/or the Shareholder for that portion of the Claim that was
paid by both the ▇▇▇▇▇▇▇ Group and/or the Shareholder to Acquiror on the
one hand and the insurance company on the other."
9. Section 10.03(a) of the Agreement is deleted and amended to read
"Intentionally Blank".
10. Due to changes occurring after August 1, 1998, the following Schedules
2.07, 3.01, 4.05, 4.07, 4.11, 4.16, and 4.24 are hereby deleted from the
Agreement and the attached Schedules are substituted for the original referenced
Schedules. Except as expressly set forth herein, attachments to the Schedules
remain unchanged, except for changes occurring in the Ordinary Course of
Business set forth in Attachment 1 each of which do not have a Material Adverse
Effect.
11. Except as expressly set forth herein, the terms and provisions of the
Agreement are hereby ratified and confirmed.
12. This Amendment may be executed in one or more counterparts, each of
which shall be deemed to be an original, but all of which shall constitute one
and the same Agreement.
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IN WITNESS WHEREOF, Acquiror, Acquisition Corp., the ▇▇▇▇▇▇▇ Group, the
Shareholder and the Transferees have each executed or caused this Agreement to
be executed on its behalf by its officer thereunto duly authorized, as
applicable, all as of the date first above written.
ACQUIROR: TRANSCOASTAL MARINE SERVICES, INC.
By: /s/ ▇▇▇▇ ▇▇▇▇▇ III
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▇▇▇▇ ▇▇▇▇▇ III, President
TRANSCOASTAL ACQUISITION, INC.
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
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▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇, President
DICKSON GROUP: ▇▇▇▇▇▇▇ GMP INTERNATIONAL, INC.
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, ▇▇.
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▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, ▇▇., President
▇▇▇▇▇▇▇ MARINE, INC.
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, ▇▇.
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▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, ▇▇., President
▇▇▇▇▇▇▇ NIGERIA, LTD.
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, ▇▇.
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▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, ▇▇., President
SERVICIOS Y CONSTRUCCIONES PETROLERAS
VENTURA, C.A.
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, ▇▇.
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▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, ▇▇., President
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VENTURA RESOURCES, INC.
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, ▇▇.
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▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, ▇▇., President
SHAREHOLDER: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, ▇▇.
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▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, ▇▇.
/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
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▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
TRANSFEREE: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇.
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▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇.
/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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ATTACHMENT 1 TO FIRST AMENDMENT TO STOCK PURCHASE AND MERGER AGREEMENT
Schedule 4.10
Schedule 4.11, Routine Operational Permits and Authorizations
Schedule 4.12, Vessel "call outs", Domestic Jobs, Miscellaneous Purchase Orders,
Vendor Listing
Schedule 4.14, Accounts Receivable
Schedule 4.16, Accounts Payable and Accrued Expenses, Deposits
Schedule 4.20, Various ▇▇▇▇▇▇▇'▇ Compensation claims, ▇▇▇▇▇▇▇ Nigeria claims
consistent with schedules
Schedule 4.22(a)(i) and (ii)
Schedule 4.22(c)