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EXHIBIT 4.2
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SHARE EXCHANGE AGREEMENT
BY AND AMONG
TRANSCOASTAL MARINE SERVICES, INC.
A DELAWARE CORPORATION
J & D CAPITAL INVESTMENTS, L.C.,
A NEVADA LIMITED LIABILITY COMPANY
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
AND
▇▇▇▇▇▇ ▇. ▇▇▇, ▇▇.
_______ ____, 1997
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SHARE EXCHANGE AGREEMENT
THIS SHARE EXCHANGE AGREEMENT (this "Agreement") is made this ____ day of
__________, 1997 (the "Effective Date"), between TRANSCOASTAL MARINE SERVICES,
INC., a Delaware corporation (the "Company"), J & D Capital Investments, L.C., a
Nevada limited liability company ("J & D"), ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ ("▇▇▇▇▇▇▇▇"), and
▇▇▇▇▇▇ ▇. ▇▇▇, ▇▇. ("Fox") (collectively, J & D, ▇▇▇▇▇▇▇▇ and ▇▇▇ shall be
referred to herein as the "Founders").
WHEREAS, each Founder holds shares of the Company's common stock, par
value $.001 per share (collectively, "Founder Common Stock");
WHEREAS, the Company has entered into an Agreement and Plan of Merger
with each of ▇▇▇▇▇▇▇ Construction Company, Inc., a Louisiana corporation
("▇▇▇▇▇▇▇"), ▇▇▇▇ Corporation, a Louisiana corporation ("▇▇▇▇"), and
Envirosystems, Inc., a Louisiana corporation ("Envirosystems"), and a Purchase
and Sale Agreement with Laine Construction Company, Inc., a Louisiana
corporation ("Laine") (collectively, ▇▇▇▇▇▇▇, ▇▇▇▇, Envirosystems and Laine
shall be referred to herein as the "▇▇▇▇▇▇▇ Companies," the Company's
acquisition of the ▇▇▇▇▇▇▇ Companies is the "▇▇▇▇▇▇▇ Acquisition"); and
WHEREAS, as consideration for the acquisition of the ▇▇▇▇▇▇▇ Companies,
the Founders have agreed upon the occurrence of certain conditions to exchange
their outstanding common stock, par value $.001 per share ("Common Stock"), of
the Company for restricted common stock of the Company, par value $.001
("Restricted Common Stock");
NOW, THEREFORE, in consideration of the premises and the representations,
warranties and agreements herein contained, and intending to be legally bound
hereby, the parties agree as follows:
1. THE EXCHANGE
1.1. The Exchange. The Founders hereby agree to exchange any and all
shares of Founders Common Stock for Restricted Common Stock effective
immediately following the ▇▇▇▇▇▇▇ Acquisition (the "Exchange") in the event, but
only in the event that: (i) the Company successfully completes its IPO (as
defined below) within one year from the Effective Date, and (ii) upon
consummation of the ▇▇▇▇▇▇▇ Acquisition, but for the Exchange, the aggregate
voting power of all Founder Common Stock would exceed the aggregate voting power
of all Common Stock received by shareholders of the ▇▇▇▇▇▇▇ Companies in the
▇▇▇▇▇▇▇ Acquisition. In such event, the Exchange shall be deemed to occur
automatically and without any further action on the part of any person effective
as of the successful completion of the IPO, and thereafter, each certificate
previously representing the outstanding shares of Founder Common Stock shall
thereafter represent the right to receive shares of Restricted Common Stock. The
closing (the "Closing") will take place at 9:00 a.m. at the offices of
Chamberlain, Hrdlicka, White, ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇ in Houston, Texas
contemporaneously with the Closing of the Company's IPO (the "Closing Date").
At the Closing, the Founders shall deliver to the Company certificates
representing the Founder Common Stock, and a completed letter of transmittal for
each Founder, and the Company shall deliver to the Founders, allocated in
proportion to their respective holdings of Founder Common Stock as set forth on
Exhibit 1.1 to this Agreement, certificates evidencing 975,000 shares of
Restricted Common Stock, subject to any adjustments for any stock dividend,
subdivision, reclassification, recapitalization, split-up, combination, or
exchange of shares or the like. For purposes of this Agreement, the term "IPO"
means the first underwritten public offering of the Company's common stock,
$.001 par value ("Common Stock"), other than any offering pursuant to any
registration statement (i) relating to any capital stock of the Company or
options, warrants or other rights to acquire any such capital stock issued or to
be issued primarily to directors, officers or employees of the Company, or any
of its subsidiaries (ii) relating to any employee benefit plan or interest
therein, (iii) relating principally to any preferred stock or debt securities of
the Company, or (iv) filed pursuant to Rule 145 under the Securities Act of
1933, as amended, or any successor or similar provisions.
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2. REPRESENTATIONS AND WARRANTIES
OF THE FOUNDERS
2.1. The Founders, jointly and severally, hereby represent and warrant
to the Company as follows:
2.1.1. Stock Ownership. Each Founder owns, beneficially and of
record, with full power to vote, the number of shares of Founder Common Stock
set forth beside such Founder's name on Exhibit 1.1 and such shares are so held
by the Founders free and clear of all liens, encumbrances and claims
whatsoever.
2.1.2. Authority. Each Founder has full right, power, legal
capacity and authority to (i) execute, deliver and perform this Agreement, and
all other documents and instruments referred to herein or contemplated hereby
to be executed, delivered and performed by the Founders (each a "Founder
Related Document") and (ii) consummate the transactions contemplated herein and
thereby. This Agreement has been duly executed and delivered by each Founder
and constitutes, and each Founder Related Document, when duly executed and
delivered by each Founder who is a party thereto will constitute, legal, valid
and binding obligations of such Founder enforceable against such Founder in
accordance with their respective terms and conditions, except as such
enforcement may be limited by bankruptcy, insolvency, reorganization,
moratorium or other similar laws affecting the enforcement of creditors' rights
generally and by general principles of equity (whether applied in a proceeding
at law or in equity).
2.1.3. Consents. No approval, consent, order or action of or
filing with any court, administrative agency, governmental authority or other
third party is required for the execution, delivery or performance by the
Founders of this Agreement or any Founder Related Document. The execution,
delivery and performance by each Founder of this Agreement and the Founder
Related Documents do not violate any mortgage, indenture, contract, agreement,
lease or commitment or other instrument of any kind to which such Founder is a
party or by which such Founder or such Founder's assets or properties may be
bound or affected or any law, rule or regulation applicable to such Founder or
any court injunction, order or decree or any valid and enforceable order of any
governmental agency in effect as of the date hereof having jurisdiction over
such Founder.
3. REPRESENTATIONS AND WARRANTIES OF THE COMPANY
3.1. Representations and Warranties. The Company hereby represents
and warrants to the Founders as follows:
3.1.1. Organization. The Company is a corporation duly
organized, validly existing and in good standing under the laws of the State of
Delaware. The Company is duly qualified or licensed as a foreign corporation
authorized to do business in all states in which any of its assets or
properties may be situated or where its business is conducted except where the
failure to obtain such qualification or license would not have a material
adverse effect.
3.1.2. Capitalization of the Company. As of the date hereof, the
total authorized capital stock of the Company is 20,000,000 shares of Common
Stock, of which 1,256,000 shares are issued
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and outstanding and of which 0 shares are held in the treasury of the Company,
2,000,000 shares of Preferred Stock, $.001 par value, of which 0 shares are
issued and outstanding and 0 shares are held in the treasury of the Company,
and 3,000,000 shares of Restricted Common Stock, of which 0 shares are issued
and outstanding and 0 shares are held in the treasury of the Company. The
outstanding shares of Common Stock have been duly and validly issued and are
fully paid and non-assessable.
3.1.3. Authority. The Company has full right, power, legal
capacity and authority to execute, deliver and perform this Agreement and all
documents and instruments referred to herein or contemplated hereby and to
consummate the transactions contemplated herein and thereby (the "Company
Related Documents"). This Agreement has been duly executed and delivered by
the Company and constitutes, and all the Company Related Documents, when
executed and delivered by the Company will constitute, legal, valid and binding
obligations of the Company, enforceable in accordance with their respective
terms and conditions except as such enforcement may be limited by bankruptcy,
insolvency, reorganization, moratorium or other similar laws affecting the
enforcement of creditors' rights generally and by general principles of equity
(whether applied in a proceeding at law or in equity).
3.1.4. Consents. No approval, consent, order or action of or
filing with any court, administrative agency, governmental authority or other
third party is required for the execution, delivery or performance by the
Company of this Agreement or the Company Related Documents or the consummation
by the Company of the transactions contemplated hereby.
4. SURVIVAL, INDEMNIFICATIONS
4.1. Survival. The representations and warranties set forth in this
Agreement and the other documents, instruments and agreements contemplated
hereby shall survive for a period of twelve (12) months after the date hereof
(the "Survival Period"). The liabilities of the parties under their respective
representations and warranties shall expire as of the expiration of the
Survival Period and no claim for indemnification may be made with respect to
any breach of any representation or warranty, except to the extent that written
notice of such breach shall have been given to the party against which such
claim is asserted on or before the date of such expiration. The covenants and
agreements of the parties herein and in other documents and instruments
executed and delivered in connection with the closing of the transactions
contemplated hereby shall survive for the maximum period permitted by law.
4.2. Indemnification.
4.2.1. The Company Indemnified Parties. Subject to the
provisions of Sections 4.1 hereof, the Founders, jointly and severally, shall
indemnify, save and hold harmless the Company and any of its assignees
(including lenders) and all of its respective officers, directors, employees,
representatives, agents, advisors and consultants and all of its respective
heirs, legal representatives, successors and assigns (collectively the "Company
Indemnified Parties") from and against any and all damages, liabilities,
losses, claims, deficiencies, penalties, interest, expenses, fines,
assessments,
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charges and costs, including reasonable attorneys' fees and court costs
(collectively "Losses") arising from, out of or in any manner connected with or
based on:
(i) the breach of any covenant of any Founder or the failure
by the Founders to perform any obligation of any Founder contained
herein or in any Founder Related Document; and
(ii) any inaccuracy in or breach of any representation or
warranty of any Founder contained herein or in any Founder Related
Document.
The foregoing indemnities shall not limit or otherwise adversely affect the
rights of indemnity of the Founders Indemnified Parties (as defined below) for
Losses under Section 4.2.2.
4.2.2. The Company Indemnity. Subject to the provisions of
Sections 4.1, the Company shall indemnify, save and hold harmless the Founders
and the Founders' heirs, legal representatives, successors and assigns (the
"Founder Indemnified Parties") from and against all Losses arising from, out of
or in any manner connected with or based on:
(i) any breach of any covenant of the Company or the failure
by the Company to perform any obligation of the Company contained herein
or in the Company Related Documents; and
(ii) any inaccuracy in or breach of any representation or
warranty of the Company contained herein or in the Company Related
Documents.
The foregoing indemnities shall not limit or otherwise adversely affect the
Company Indemnified Parties' rights of indemnity for Losses under Section
4.2.1.
4.3. Notice. The party (the "Indemnified Party") which may be
entitled to indemnity hereunder shall give prompt notice to the party obligated
to give indemnity hereunder (the "Indemnifying Party") of the assertion of any
claim, or the commencement of any suit, action or proceeding in respect of
which indemnity may be sought hereunder. Any failure on the part of any
Indemnified Party to give the notice described in this Section 5.3 shall
relieve the Indemnifying Party of its obligations under this Article 5 only to
the extent that such Indemnifying Party has been prejudiced by the lack of
timely and adequate notice. The Company shall have the obligation to assume
the defense or settlement of any third-party claim, suit, action or proceeding
in respect of which indemnity may be sought hereunder, provided that (i) the
Founders shall at all times have the right, at their option, to participate
fully therein, and (ii) if the Company does not proceed diligently to defend
the third-party claim, suit action or proceeding within ten (10) days after
receipt of notice of such third-party claim, suit, action or proceeding, the
Founders shall have the right, but not the obligation, to undertake the defense
of any such third-party claim, suit, action or proceeding. The Indemnifying
Party shall not be required to indemnify the Indemnified Party with respect to
any amounts paid in settlement of any third-party suit, action, proceeding or
investigation entered into without the written consent of the Indemnifying
Party; provided, however, that if the Indemnified Party is a the Company
Indemnified Party, such third-party suit, action, proceeding or investigation
may be settled without the consent of the Indemnifying Party on ten (10) days'
prior written notice
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to the Indemnifying Party if such third-party suit, action, proceeding or
investigation is then unreasonably interfering with the business or operations
of the Company and the settlement is commercially reasonable under the
circumstances; and provided further, that if the Indemnifying Party gives ten
(10) days' prior written notice to the Indemnified Party of a settlement offer
which the Indemnifying Party desires to accept and to pay all Losses with
respect thereto ("Settlement Notice") and the Indemnified Party fails or
refuses to consent to such settlement within ten (10) days after delivery of
the Settlement Notice to the Indemnified Party, and such settlement otherwise
complies with the provisions of this Section 4.3, the Indemnifying Party shall
not be liable for Losses arising from such third-party suit, action, proceeding
or investigation in excess of the amount proposed in such settlement offer.
Notwithstanding the foregoing, no Indemnifying Party will consent to the entry
of any judgment or enter into any settlement without the consent of the
Indemnified Party, if such judgment or settlement imposes any obligation or
liability upon the Indemnified Party other than the execution, delivery or
approval thereof and customary releases of claims with respect to the subject
matter thereof. The parties shall cooperate in defending any such third-party
suit, action, proceeding or investigation, and the defending party shall have
reasonable access to the books and records, and personnel in the possession or
control of the Indemnified Party which are pertinent to the defense. The
parties agree that the Indemnified Party may join the Indemnifying Party in any
suit, action, claim or proceeding brought by a third party, as to which any
right of indemnity created by this Agreement would or might apply, for the
purpose of enforcing any right of the indemnity granted to such Indemnified
Party pursuant to this Agreement.
5. MISCELLANEOUS
5.1. Notice. Any notice, delivery or communication required or
permitted to be given under this Agreement shall be in writing, and shall be
mailed, postage prepaid, or delivered, to the addresses given below, or sent by
telecopy to the telecopy numbers set forth below, as follows:
To the Founders:
J & D Capital Investments, L.C.
c/o Mr. G. ▇▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇*
▇▇. ▇▇▇▇▇▇ ▇. ▇▇▇, ▇▇.
c/o The Red Fox Companies of New Iberia, Inc.
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
▇▇. ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
c/o TransCoastal Marine Services, Inc.
▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
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To the Company:
TransCoastal Marine Services, Inc.
▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Attention: President
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
or other such address as shall be furnished in writing by any such party to the
other party, and such notice shall be effective and be deemed to have been
given as of the date actually received.
To the extent any notice provision in any other agreement, instrument or
document required to be executed or executed by the parties in connection with
the transactions contemplated herein contains a notice provision which is
different from the notice provision contained in this Section 5.1 with respect
to matters arising under such other agreement, instrument or document, the
notice provision in such other agreement, instrument or document shall control.
5.2. Further Documents. The Founders shall, at any time and from time
to time after the date hereof, upon request by the Company and without further
consideration, execute and deliver such instruments or other documents and take
such further action as may be reasonably required in order to perfect any other
undertaking made by the Founders hereunder.
5.3. Assignability. No Founder shall assign this Agreement in whole
or in part without the prior written consent of the Company, except by the
operation of law. The Company may assign its rights under this Agreement and
the Founder Related Documents without the consent of either Founder.
5.4. Exhibits and Schedules. The Exhibits and Schedules (and any
appendices thereto) referred to in this Agreement are and shall be incorporated
herein and made a part hereof.
5.5. Entire Agreement. This Agreement constitutes the full
understanding of the parties, a complete allocation of risks between them and a
complete and exclusive statement of the terms and conditions of their agreement
relating to the subject matter hereof and supersedes any and all prior
agreements, whether written or oral, that may exist between the parties with
respect thereto. Except as otherwise specifically provided in this Agreement,
no conditions, usage of trade, course of dealing or performance, understanding
or agreement purporting to modify, vary, explain or supplement the terms or
conditions of this Agreement shall be binding unless hereafter made in writing
and signed by the party to be bound, and no modification shall be effected by
the acknowledgment or acceptance of documents containing terms or conditions at
variance with or in addition to those set forth in this Agreement. No waiver
by any party with respect to any breach or default or of any right or remedy
and no course of dealing shall be deemed to constitute a continuing waiver of
any other breach or default or of any other right or remedy, unless such waiver
be expressed in writing signed by the party to be bound. Failure of a party to
exercise any right shall not be deemed a waiver of such right or rights in the
future.
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5.6. Headings. Headings as to the contents of particular articles and
sections are for convenience only and are in no way to be construed as part of
this Agreement or as a limitation of the scope of the particular articles or
sections to which they refer.
5.7. CONTROLLING LAW AND JURISDICTION. THE VALIDITY, INTERPRETATION
AND PERFORMANCE OF THIS AGREEMENT AND ANY DISPUTE CONNECTED HEREWITH SHALL BE
GOVERNED AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF DELAWARE.
5.8. No Third Party Beneficiaries. No person or entity not a party to
this Agreement shall have rights under this Agreement as a third party
beneficiary or otherwise.
5.9. Amendments and Waivers. This Agreement may be amended by the
Company and the Founders; provided that all amendments to this Agreement must
be by an instrument in writing signed on behalf of the Company and by the
Founders. Any term or provision of this Agreement may be waived in writing at
any time by the party which is entitled to the benefits thereof.
5.10. Non-Recourse. No recourse for the payment of any amounts due
hereunder or for any claim based on this Agreement or the transactions
contemplated hereby or otherwise in respect thereof, and no recourse under or
upon any obligation, covenant or agreement of the Company in this Agreement
shall be had against any incorporator, organizer, promoter, Founder, officer,
director, employee or representative as such (other than the Founders as set
forth herein), past, present or future, of the Company or of any successor
corporation, whether by virtue of any constitution, statute or rule of law, or
by enforcement of any assessment or penalty or otherwise; it being expressly
understood that all such liability is hereby expressly waived and released as a
condition of, and as a consideration for, the execution of this Agreement.
5.11. When Effective. This Agreement shall become effective only upon
the execution and delivery of one or more counterparts of this Agreement by
each of the Company and the Founders.
5.12. Number and Gender of Words. Whenever herein the singular number
is used, the same shall include the plural where appropriate and words of any
gender shall include each other gender where appropriate.
5.13. Invalid Provisions. If any provision of this Agreement is held
to be illegal, invalid, or unenforceable under present or future laws, such
provisions shall be fully severable as if such invalid or unenforceable
provisions had never comprised a part of the Agreement; and the remaining
provisions of the Agreement shall remain in full force and effect and shall not
be affected by the illegal, invalid or unenforceable provision or by its
severance from this Agreement. Furthermore, in lieu of such illegal, invalid
or unenforceable provision, there shall be automatically as a part of this
Agreement, a provision as similar in terms to such illegal, invalid or
unenforceable provision as may be possible and be legal, valid and enforceable.
5.14. Multiple Counterparts. This Agreement may be executed in a
number of identical counterparts. If so executed, each of such counterparts is
to be deemed an original for all purposes
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and all such counterparts shall, collectively, constitute one agreement, but,
in making proof of this Agreement, it shall not be necessary to produce or
account for more than one such counterpart.
5.15. No Rule of Construction. All of the parties hereto have been
represented by counsel in the negotiations and preparation of this Agreement;
therefore, this Agreement will be deemed to be drafted by each of the parties
hereto, and no rule of construction will be invoked respecting the authorship
of this Agreement.
5.16. Expenses. Each of the parties shall bear all of their own
expenses in connection with the negotiation and closing of this Agreement and
the transactions contemplated hereby.
IN WITNESS WHEREOF, this Agreement has been duly executed and delivered on the
date first hereinabove written.
THE COMPANY:
TRANSCOASTAL MARINE SERVICES, INC., a
Delaware corporation
By:
--------------------------------
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇, Chief
Executive Officer
FOUNDERS:
J & D Capital Investments, L.C.
By:
----------------------------------
G. ▇▇▇▇▇ ▇▇▇▇, President
-------------------------------------
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ (Individually)
-------------------------------------
▇▇▇▇▇▇ ▇. ▇▇▇, ▇▇. (Individually)
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EXHIBIT 1.1
(TO SHARE EXCHANGE AGREEMENT)
HOLDERS OF FOUNDER COMMON STOCK
NUMBER OF SHARES OF
FOUNDER FOUNDER COMMON STOCK
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J & D Capital 800,000 shares
Investments, L.C.
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ 100,000 shares
▇▇▇▇▇▇ ▇. ▇▇▇, ▇▇. 75,000 shares