-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, H36cyiAKkTAd/sthqkYsSb3GMG9XQ1gSfhgCem1Oq0fCy8LQHxxcEqNlx+QkBbQk TmrDN3v5jUFDINP9K2yv1g== 0000928385-02-002528.txt : 20020719 0000928385-02-002528.hdr.sgml : 20020719 20020717164552 ACCESSION NUMBER: 0000928385-02-002528 CONFORMED SUBMISSION TYPE: SC 13D PUBLIC DOCUMENT COUNT: 7 FILED AS OF DATE: 20020717 GROUP MEMBERS: C/R MARINE COINVESTMENT II LP GROUP MEMBERS: C/R MARINE COINVESTMENT LP GROUP MEMBERS: C/R MARINE GP CORP GROUP MEMBERS: C/R MARINE NON-US LP FILED BY: COMPANY DATA: COMPANY CONFORMED NAME: C R MARINE DOMESTIC PARTNERSHIP LP CENTRAL INDEX KEY: 0001177154 FILING VALUES: FORM TYPE: SC 13D MAIL ADDRESS: STREET 1: 712 FIFTH AVE STREET 2: 19TH FLOOR CITY: NEW YORK STATE: NY ZIP: 10019 FORMER COMPANY: FORMER CONFORMED NAME: MARINE DOMESTIC PARTNERSHIP LP DATE OF NAME CHANGE: 20020708 SUBJECT COMPANY: COMPANY DATA: COMPANY CONFORMED NAME: SEABULK INTERNATIONAL INC CENTRAL INDEX KEY: 0000922341 STANDARD INDUSTRIAL CLASSIFICATION: DEEP SEA FOREIGN TRANSPORTATION OF FREIGHT [4412] IRS NUMBER: 650524593 STATE OF INCORPORATION: DE FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: SC 13D SEC ACT: 1934 Act SEC FILE NUMBER: 005-46833 FILM NUMBER: 02704903 BUSINESS ADDRESS: STREET 1: 2200 ELLER DR BLDG 27 STREET 2: PO BOX 13038 CITY: FORT LAUDERDALE STATE: FL ZIP: 33316 BUSINESS PHONE: 954-524-4200 MAIL ADDRESS: STREET 1: 2200 ELLER DR BLDG 27 CITY: FT LAUDERDALE STATE: FL ZIP: 33316 FORMER COMPANY: FORMER CONFORMED NAME: HVIDE MARINE INC DATE OF NAME CHANGE: 19940427 SC 13D 1 dsc13d.txt SCHEDULE 13D SECURITIES AND EXCHANGE COMMISSION Washington, D.C. 20549 ---------------------- SCHEDULE 13D (Rule 13d-101) INFORMATION TO BE INCLUDED IN STATEMENTS FILED PURSUANT TO RULE 13d-1(a) AND AMENDMENTS THERETO FILED PURSUANT TO RULE 13d-2(a) Seabulk International, Inc. - ------------------------------------------------------------------------------- (Name of Issuer) COMMON STOCK, PAR VALUE $0.01 PER SHARE - ------------------------------------------------------------------------------- (Title of Class of Securities) 81169P101 - ------------------------------------------------------------------------------- (CUSIP Number) C/R Marine GP Corp. c/o Riverstone Holdings, LLC 712 Fifth Avenue, 19th Floor New York, New York 10019 Attention: Pierre Lapeyre, Jr. Phone: (212) 993-0093 - ------------------------------------------------------------------------------- (Name, address and telephone number of person authorized to receive notices and communications) July 9, 2002 - ------------------------------------------------------------------------------- (Date of event which requires filing of this Statement) If the filing person has previously filed a statement on Schedule 13G to report the acquisition that is the subject of this Schedule 13D, and is filing this schedule because of Rule 13d-1(e), (f) or (g), check the following box.[_] Note: Schedules filed in paper format shall include a signed original and five copies of the schedule, including all exhibits. See Rule 13d-7(b) for other parties to whom copies are to be sent. - ------------------------------------------------------------------------------ NAMES OF REPORTING PERSONS 1 I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS (entities only). C/R Marine Domestic Partnership, L.P. - ------------------------------------------------------------------------------ CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (See Instructions) 2 (a) [_] (b) [X] - ------------------------------------------------------------------------------ SEC USE ONLY 3 - ------------------------------------------------------------------------------ SOURCE OF FUNDS (See Instructions) 4 00 - Contributions from Partners - ------------------------------------------------------------------------------ CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) or 2(e) 5 [_] - ------------------------------------------------------------------------------ CITIZENSHIP OR PLACE OF ORGANIZATION 6 Delaware - ------------------------------------------------------------------------------ SOLE VOTING POWER 7 NUMBER OF See Item 5. SHARES ----------------------------------------------------------- SHARED VOTING POWER BENEFICIALLY 8 OWNED BY See Item 5. ----------------------------------------------------------- EACH SOLE DISPOSITIVE POWER 9 REPORTING See Item 5. PERSON ----------------------------------------------------------- SHARED DISPOSITIVE POWER WITH 10 See Item 5. - ------------------------------------------------------------------------------ AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 11 See Item 5. - ------------------------------------------------------------------------------ CHECK IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES 12 [_] - ------------------------------------------------------------------------------ PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 13 See Item 5. - ------------------------------------------------------------------------------ TYPE OF REPORTING PERSON (See Instructions) 14 PN - ------------------------------------------------------------------------------ 2 - ------------------------------------------------------------------------------ NAMES OF REPORTING PERSONS 1 I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS (entities only). C/R Marine Non-U.S. Partnership, L.P. - ------------------------------------------------------------------------------ CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP 2 (a) [_] (b) [X] - ------------------------------------------------------------------------------ SEC USE ONLY 3 - ------------------------------------------------------------------------------ SOURCE OF FUNDS (See Instructions) 4 00 - Contributions from Partners - ------------------------------------------------------------------------------ CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) or 2(e) 5 [_] - ------------------------------------------------------------------------------ CITIZENSHIP OR PLACE OF ORGANIZATION 6 Delaware - ------------------------------------------------------------------------------ SOLE VOTING POWER 7 NUMBER OF See Item 5. SHARES ----------------------------------------------------------- SHARED VOTING POWER BENEFICIALLY 8 OWNED BY See Item 5. ----------------------------------------------------------- EACH SOLE DISPOSITIVE POWER 9 REPORTING See Item 5. PERSON ----------------------------------------------------------- SHARED DISPOSITIVE POWER WITH 10 See Item 5. - ------------------------------------------------------------------------------ AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 11 See Item 5. - ------------------------------------------------------------------------------ CHECK IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES 12 [_] - ------------------------------------------------------------------------------ PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 13 See Item 5. - ------------------------------------------------------------------------------ TYPE OF REPORTING PERSON (See Instructions) 14 PN - ------------------------------------------------------------------------------ 3 - ------------------------------------------------------------------------------ NAMES OF REPORTING PERSONS 1 I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS (entities only). C/R Marine Coinvestment, L.P. - ------------------------------------------------------------------------------ CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (See Instructions) 2 (a) [_] (b) [X] - ------------------------------------------------------------------------------ SEC USE ONLY 3 - ------------------------------------------------------------------------------ SOURCE OF FUNDS (See Instructions) 4 00 - Contributions from Partners - ------------------------------------------------------------------------------ CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) or 2(e) 5 [_] - ------------------------------------------------------------------------------ CITIZENSHIP OR PLACE OF ORGANIZATION 6 Delaware - ------------------------------------------------------------------------------ SOLE VOTING POWER 7 NUMBER OF See Item 5. SHARES ----------------------------------------------------------- SHARED VOTING POWER BENEFICIALLY 8 OWNED BY See Item 5. ----------------------------------------------------------- EACH SOLE DISPOSITIVE POWER 9 REPORTING See Item 5. PERSON ----------------------------------------------------------- SHARED DISPOSITIVE POWER WITH 10 See Item 5. - ------------------------------------------------------------------------------ AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 11 See Item 5. - ------------------------------------------------------------------------------ CHECK IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES 12 [_] - ------------------------------------------------------------------------------ PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 13 See Item 5. - ------------------------------------------------------------------------------ TYPE OF REPORTING PERSON (See Instructions) 14 PN - ------------------------------------------------------------------------------ 4 - ------------------------------------------------------------------------------ NAMES OF REPORTING PERSONS 1 I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS (entities only). C/R Marine Coinvestment II, L.P. - ------------------------------------------------------------------------------ CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (See Instructions) 2 (a) [_] (b) [X] - ------------------------------------------------------------------------------ SEC USE ONLY 3 - ------------------------------------------------------------------------------ SOURCE OF FUNDS (See Instructions) 4 00 - Contributions from Partners - ------------------------------------------------------------------------------ CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) or 2(e) 5 [_] - ------------------------------------------------------------------------------ CITIZENSHIP OR PLACE OF ORGANIZATION 6 Delaware - ------------------------------------------------------------------------------ SOLE VOTING POWER 7 NUMBER OF See Item 5. SHARES ----------------------------------------------------------- SHARED VOTING POWER BENEFICIALLY 8 OWNED BY See Item 5. ----------------------------------------------------------- EACH SOLE DISPOSITIVE POWER 9 REPORTING See Item 5. PERSON ----------------------------------------------------------- SHARED DISPOSITIVE POWER WITH 10 See Item 5. - ------------------------------------------------------------------------------ AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 11 See Item 5. - ------------------------------------------------------------------------------ CHECK IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES 12 [_] - ------------------------------------------------------------------------------ PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 13 See Item 5. - ------------------------------------------------------------------------------ TYPE OF REPORTING PERSON (See Instructions) 14 PN - ------------------------------------------------------------------------------ 5 - ------------------------------------------------------------------------------ NAMES OF REPORTING PERSONS 1 I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS (entities only). C/R Marine GP Corp. - ------------------------------------------------------------------------------ CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (See Instructions) 2 (a) [_] (b) [X] - ------------------------------------------------------------------------------ SEC USE ONLY 3 - ------------------------------------------------------------------------------ SOURCE OF FUNDS (See Instructions) 4 Not applicable - ------------------------------------------------------------------------------ CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) or 2(e) 5 [_] - ------------------------------------------------------------------------------ CITIZENSHIP OR PLACE OF ORGANIZATION 6 Delaware - ------------------------------------------------------------------------------ SOLE VOTING POWER 7 NUMBER OF See Item 5. SHARES ----------------------------------------------------------- SHARED VOTING POWER BENEFICIALLY 8 OWNED BY See Item 5. ----------------------------------------------------------- EACH SOLE DISPOSITIVE POWER 9 REPORTING See Item 5. PERSON ----------------------------------------------------------- SHARED DISPOSITIVE POWER WITH 10 See Item 5. - ------------------------------------------------------------------------------ AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 11 See Item 5. - ------------------------------------------------------------------------------ CHECK IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES 12 [_] - ------------------------------------------------------------------------------ PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 13 See Item 5. - ------------------------------------------------------------------------------ TYPE OF REPORTING PERSON (See Instructions) 14 CO - ------------------------------------------------------------------------------ 6 Item 1. Security and Issuer. This statement relates to the Common Stock, par value $0.01 per share (the "Common Stock"), of Seabulk International, Inc. (the "Company"). The Company's principal executive office is located at 2200 Eller Drive, Fort Lauderdale, Florida 33316. Item 2. Identity and Background. This statement is being filed jointly on behalf of the following persons (collectively, the "Reporting Persons"): (1) C/R Marine Domestic Partnership, L.P., a Delaware limited partnership ("C/R U.S."); (2) C/R Marine Non-U.S. Partnership, L.P., a Delaware limited partnership ("C/R Int'l"); (3) C/R Marine Coinvestment, L.P., a Delaware limited partnership ("C/R Coinvestment"); (4) C/R Marine Coinvestment II, L.P., a Delaware limited partnership ("C/R Coinvestment II" and, together with C/R U.S., C/R Int'l and C/R Coinvestment, the "C/R Purchasers"); and (5) C/R Marine GP Corp., a Delaware corporation ("C/R GP"). C/R U.S. is a Delaware limited partnership which was formed to purchase shares of Common Stock. C/R GP is the general partner of C/R U.S. C/R Int'l is a Delaware limited partnership which was formed to purchase shares of Common Stock. C/R GP is the general partner of C/R Int'l. C/R Coinvestment is a Delaware limited partnership which was formed to purchase shares of Common Stock. C/R GP is the general partner of C/R Coinvestment. C/R Coinvestment II is a Delaware limited partnership which was formed to purchase shares of Common Stock. C/R GP is the general partner of C/R Coinvestment II. C/R GP is a Delaware corporation which was formed to be the general partner of the C/R Purchasers. Information with respect to the controlling persons, officers and directors of C/R GP is set forth on Schedule I attached hereto, which is hereby incorporated by reference. The address of the principal business and principal office of each of the Reporting Persons is c/o Riverstone Holdings LLC, 712 Fifth Avenue, 19th Floor, New York, New York 10019. During the past five (5) years, neither any of the Reporting Persons nor, to the best knowledge of any of the Reporting Persons, any person listed on Schedule I hereto has been (i) convicted in a criminal proceeding (excluding traffic violations or similar misdemeanors) or (ii) a party to a civil proceeding of a judicial or administrative body of competent jurisdiction and as a result of such proceeding was or is subject to a judgment, decree or final order enjoining future violations of, or prohibiting or mandating activities subject to, United States federal or state securities laws or finding any violation with respect to such laws. Item 3. Source and Amount of Funds. Pursuant to the Company Stock Purchase Agreement (as defined in Item 4 below), the C/R Purchasers have agreed to purchase 4,166,667 shares of Common Stock for a purchase price of $33,333,336. 7 Additionally, pursuant to the Loomis Securities Purchase Agreement (as defined in Item 4 below), the C/R Purchasers have agreed to purchase (1) up to 1,752,041 shares of Common Stock for a purchase price of $14,016,328 and (2) Warrants (as defined in Item 6 below) to purchase up to 60,172 shares of Common Stock, for a purchase price of $348,003.04. The general and limited partners of the C/R Purchasers will make capital contributions to fund the purchase of shares of Common Stock and Warrants. None of the Reporting Persons intends to borrow any funds in connection with the purchase of shares of Common Stock and Warrants. Item 4. Purpose of Transaction. The C/R Purchasers, Nautilus Acquisition, L.P., a Delaware limited partnership ("Nautilus") and the Company have entered into a Stock Purchase Agreement, dated as of June 13, 2002 (the "Company Stock Purchase Agreement"), which provides that the C/R Purchasers and Nautilus, subject to certain closing conditions contained therein, will purchase 4,166,667 and 8,333,333 shares, respectively, of Common Stock for a purchase price of $33,333,336 and $66,666,664, respectively. Additionally, the C/R Purchasers, Nautilus and Loomis, Sayles & Company, L.P., a Delaware limited partnership ("Loomis Sayles") have entered into a Securities Purchase Agreement, dated as of June 13, 2002 (the "Loomis Securities Purchase Agreement" and, together with the Company Stock Purchase Agreement, the "Purchase Agreements"), which provides that the C/R Purchasers and Nautilus, subject to certain closing conditions contained therein, will purchase (i) up to 1,752,041 and 3,504,081 shares, respectively, of Common Stock for a purchase price of $14,016,328 and $28,032,648, respectively, and (ii) Warrants to purchase up to 60,172 and 120,345 shares, respectively, of Common Stock, for a purchase price of $348,003.04 and $696,006.09, respectively. The C/R Purchasers entered into the Purchase Agreements in order to acquire an interest in the Company for investment purposes. The Reporting Persons intend to review continuously their position in the Company. Depending upon further evaluations of the business prospects of the Company and other developments, including but not limited to, general economic and business conditions and stock market conditions, the Reporting Persons may retain or, from time to time, increase their holdings or dispose of all or a portion of their holdings subject to any applicable legal and contractual restrictions on their ability to do so in privately negotiated transactions, open market purchases or otherwise. The Reporting Persons also intend to actively participate in the management of the Company through representation on the Board of Directors. Pursuant to a Stockholders' Agreement (as defined in Item 6 below), to be entered into by and among the Company, the C/R Purchasers, Nautilus and a management shareholder, certain of the C/R Purchasers and Nautilus will agree to vote their shares to ensure that the Board of Directors will consist of ten directors and will include two directors designated by certain of the C/R Purchasers and four directors designated by Nautilus. As part of the transactions contemplated by the Company Stock Purchase Agreement, the Company will amend its certificate of incorporation to add, among other things, certain protections for minority stockholders. In addition, the matters set forth in Item 6 below are incorporated in this Item 4 by reference as if fully set forth herein. Except as set forth in this Item 4 (including the matters described in Item 6 below which are incorporated in this Item 4 by reference), the Reporting Persons have no present plans or proposals that relate to or that would result in any of the actions specified in clauses (a) through (j) of Item 4 of Schedule 13D of the Securities Exchange Act of 1934, as amended (the "Exchange Act"). 8 Item 5. Interest in Securities of the Issuer. (a)-(b) As of July 16, 2002, neither the Reporting Persons nor Nautilus was the holder of record of any shares of Common Stock or Warrants. On July 9, 2002, the Company filed its preliminary proxy statement seeking stockholder approval of the share issuance to the C/R Purchasers and Nautilus pursuant to the Company Stock Purchase Agreement and of the amendment to its certificate of incorporation with the Securities and Exchange Commission. Also on July 9, 2002, early termination of the waiting periods under the Hart-Scott-Rodino Antitrust Improvements Act of 1974, as amended ("HSR Act"), was granted. If the transactions contemplated by the Purchase Agreements are consummated, each of the Reporting Persons and Nautilus may be deemed to beneficially own the following:
Number of Shares of Total Number of % of Equity Common Stock Shares of Common Ownership Number of Issuable Stock (Assuming (Assuming Shares of Upon Exercise of Exercise of Exercise of Name Common Stock Warrants Warrants) Warrants) C/R U.S.(1) ................. 1,204,051 12,241 1,216,292 5.2% C/R Int'l(1) ................ 3,711,670 37,735 3,749,405 16.1% C/R Coinvestment(1) ......... 506,635 5,150 511,785 2.2% C/R Coinvestment II(1) ...... 496,352 5,046 501,398 2.2% C/R GP(2) ................... 5,918,708 60,172 5,978,880 25.7% Nautilus(3) ................. 11,837,414 120,345 11,957,759 51.3%
- --------- (1) These numbers may decrease to the extent that Loomis Sayles can no longer cause such shares or Warrants to be sold to a C/R Purchaser. See Item 6 below for a description of the Loomis Securities Purchase Agreement. Each of the C/R Purchasers will have the shared power to dispose or direct the disposition of the shares of Common Stock and Warrants which it would hold directly or the shares of Common Stock issuable upon exercise of such Warrants. Each of the C/R Purchasers will have the shared power to vote or direct the vote of such shares of Common Stock, but will not have the power to vote or direct the vote of any of the shares of Common Stock which it would own upon exercise of such Warrants prior to the receipt of such shares of Common Stock upon exercise of such Warrants. The C/R Purchasers may be deemed to be acting as a group in relation to their respective holdings in the Company but do not affirm the existence of any such group. Each of the C/R Purchasers disclaims beneficial ownership of any shares of Common Stock owned by any other C/R Purchaser. (2) These numbers may decrease to the extent that Loomis Sayles can no longer cause such shares or Warrants to be sold to a C/R Purchaser. See Item 6 below for a description of the Loomis Securities Purchase Agreement. C/R GP is the sole general partner of each of the C/R Purchasers and exercises investment discretion and control over the shares of Common Stock and Warrants held by each of the C/R Purchasers. Hence, in such capacity, C/R GP may be deemed to have the power to dispose or direct the disposition of the shares of Common Stock and Warrants that each of the C/R Purchasers would hold, and shares of Common Stock which each of the C/R Purchasers would hold upon exercise of such Warrants, and to vote or direct the vote of such shares of Common Stock. William E. Conway, Jr., Daniel A. D'Aniello, David M. Rubenstein, Pierre F. Lapeyre, Jr., David M. Leuschen and Jim H. Derryberry, as the sole stockholders of C/R GP, may be deemed to share beneficial ownership of the shares shown as beneficially owned by the Reporting Persons. Such persons disclaim any such beneficial ownership. (3) These numbers may decrease to the extent that Loomis Sayles can no longer cause such shares or Warrants to be sold to Nautilus. See Item 6 below for a description of the Loomis Securities Purchase Agreement. On July 16, 2002, Nautilus filed a separate Schedule 13D with respect to the shares of Common Stock and Warrants to be purchased by it pursuant to the Securities Purchase Agreements, on behalf of itself and its other reporting persons (collectively, the "Nautilus Entities"). The Reporting Persons and the Nautilus Entities may be deemed to be acting as a group in relation to their respective holdings in the Company but do not affirm the existence of any such group. Each of the Reporting Persons disclaims beneficial ownership of any shares of Common Stock owned by the Nautilus Entities. All calculations made herein are made in accordance with Rule 13d-3(d) under the Exchange Act and based on the 10,623,938 shares of Common Stock outstanding as of July 3, 2002, as reported by the Company in its preliminary proxy statement, filed as of July 9, 2002. (c) None of the Reporting Persons has effected any transactions in shares of Common Stock during the past 60 days. 9 (d) The right to receive dividends on, and proceeds from the sale of, the shares of Common Stock held of record by the C/R Purchasers and beneficially owned by their general partner, as described in paragraphs (a) and (b) above, is governed by the applicable limited partnership agreements of each of such entities, and such dividends or proceeds may be distributed with respect to numerous general and limited partnership interests. The limited partner of C/R Coinvestment II has the right to cause the general partner to distribute all of the portfolio investments, including the shares of Common Stock and Warrants, held by C/R Coinvestment II to such limited partner on or after the two-year anniversary of C/R Coinvestment II's initial acquisition of such shares and Warrants, subject to any then-applicable legal, tax, regulatory or contractual restrictions. See Item 6 below for a description of the C/R Coinvestment II Agreement. (e) Not applicable. Item 6. Contracts, Arrangements, Understandings or Relationships with Respect to Securities of the Issuer. Upon the terms and conditions set forth in the Company Stock Purchase Agreement, the Loomis Securities Purchase Agreement, the Term Sheet for the Stockholders' Agreement (the "Stockholders' Agreement Term Sheet") and the Fee Letter (the "Fee Letter") (attached hereto as Exhibit 1, Exhibit 2, Exhibit 3 and Exhibit 4 respectively, and incorporated herein by reference), the C/R Purchasers and Nautilus will purchase the shares of Common Stock covered by this statement. Company Stock Purchase Agreement The following description of the Company Stock Purchase Agreement is a summary thereof and does not purport to be complete and is qualified in its entirety by reference to the Company Stock Purchase Agreement. Pursuant to the Company Stock Purchase Agreement, the Company has agreed to sell to the C/R Purchasers and Nautilus, and the C/R Purchasers and Nautilus have agreed to purchase from the Company, a total of 12,500,000 shares of Common Stock for a price of $8.00 per share and an aggregate purchase price of $100,000,000. The sale and purchase of the Common Stock (the "Closing") will take place upon the satisfaction of certain conditions set forth in the Company Stock Purchase Agreement, including, without limitation, obtaining a ruling from the United States Coast Guard that, following the transactions contemplated by the Purchase Agreements, the Company will not fail to meet the requirements of Section 2 of the Shipping Act, 1916, as amended, for ownership and operation of vessels in the United States coastwide trade; obtaining the approval of the stockholders of the Company; and the expiration of applicable waiting periods under the HSR Act. Under the terms of the Company Stock Purchase Agreement, the Company is obligated to seek and obtain the approval of the holders of the Common Stock at a meeting of its stockholders (i) to issue the shares of Common Stock to be purchased by the C/R Purchasers and Nautilus pursuant to the Company Stock Purchase Agreement, and (ii) to adopt an amendment to the certificate of incorporation, which amendment, among other things, would increase the number of authorized shares of Common Stock from 20,000,000 to 40,000,000 and eliminate the classification of the Company's Board of Directors. Pursuant to the Company Stock Purchase Agreement, the Board of Directors of the Company is obligated to recommend such approvals. The Company has also agreed to pay the expenses of the C/R Purchasers and Nautilus incurred since January 1, 2002 in certain circumstances, including the successful consummation of the transactions contemplated by the Company Stock Purchase Agreement. 10 In the event that the transactions contemplated by the Company Stock Purchase Agreement are not consummated as a result of a breach by the Company of certain of its obligations thereunder or if the Board of Directors of the Company accepts an unsolicited proposal by a third party and thereafter terminates the Company Stock Purchase Agreement, then the Company is obligated to pay to the C/R Purchasers and Nautilus a termination fee of $6,000,000 collectively. However, the Company will be obligated to pay their expenses only up to $2,000,000 collectively. Upon the Closing, the Company, the C/R Purchasers and Nautilus will enter into a Stockholders' Agreement on the terms set forth in the Stockholders' Agreement Term Sheet, which is described below. Loomis Securities Purchase Agreement The following description of the Loomis Securities Purchase Agreement is a summary thereof and does not purport to be complete and is qualified in its entirety by reference to the Loomis Securities Purchase Agreement. Pursuant to the Loomis Securities Purchase Agreement, Loomis Sayles has agreed to Cause (as defined therein) its managed accounts to sell to the C/R Purchasers and Nautilus, and the C/R Purchasers and Nautilus have agreed to purchase from such managed accounts, a total of up to 5,256,122 shares of Common Stock for a price of $8.00 per share; up to 49,915 Class A Common Stock Purchase Warrants for a price of $0.01 per warrant, with one Class A Common Stock Purchase Warrant immediately exercisable for one share of Common Stock at an exercise price of $38.49 and expiring on December 14, 2003; and up to 130,602 Common Stock Purchase Warrants for a price of $7.99 per warrant, with one Common Stock Purchase Warrant immediately exercisable for one share of Common Stock at an exercise price of $0.01 and expiring on June 30, 2007 (collectively, the "Warrants"). It is possible that the deliverable number of shares of Common Stock and Warrants may be less than the number of shares of Common Stock and Warrants which the C/R Purchasers and Nautilus are obligated to purchase. The sale and purchase of the Common Stock and the Warrants will take place upon the satisfaction of certain conditions set forth in the Loomis Securities Purchase Agreement. Under the terms of the Loomis Securities Purchase Agreement, Loomis Sayles is obligated to Cause the shares of Common Stock controlled by it to be voted in favor of the (i) issuance of the shares of Common Stock to be purchased by the C/R Purchasers and Nautilus pursuant to the Company Stock Purchase Agreement, and (ii) the adoption of the amendment to the certificate of incorporation. Stockholders' Agreement Term Sheet The following description of the Stockholders' Agreement Term Sheet is a summary thereof and does not purport to be complete and is qualified in its entirety by reference to the Stockholders' Agreement Term Sheet. The Company Stock Purchase Agreement requires as a condition to the consummation of the transactions described herein that upon the Closing, the Company, the C/R Purchasers, Nautilus and a management stockholder enter into a Stockholders' Agreement (the "Stockholders' Agreement") based on the terms set forth in the Stockholders' Agreement Term Sheet. Under the terms of the Stockholders' Agreement Term Sheet, the Stockholders' Agreement will provide the C/R Purchasers and Nautilus with the following rights, among others: (i) representation on the Company's Board of Directors, specifically, two directors to be designated by certain of the C/R Purchasers and four directors to be designated by Nautilus; (ii) demand registration rights; (iii) piggyback registration rights; (iv) rights of first refusal in connection with any proposed transfer of Common Stock to a third party by the other parties to the Stockholders' Agreement; (v) tag-along rights to participate in sales of common stock by the other parties to the Stockholders' Agreement; and (vi) preemptive rights to purchase their pro rata portion of new securities issued by the Company. Transfers of shares of Common Stock held by the parties to the 11 Stockholders' Agreement will be restricted. The Stockholders' Agreement will provide that the Company may not grant additional registration rights to any other person or entity and will cause all registration rights agreements to which it is currently a party to be terminated. Fee Letter The following description of the Fee Letter is a summary thereof and does not purport to be complete and is qualified in its entirety by reference to the Fee Letter. Upon the Closing, the Company shall pay a fee to Carlyle/Riverstone Energy Partners, L.P., an affiliate of the Reporting Entities, in an amount of $1,000,000. Upon the Closing, the Company shall pay a fee to Credit Suisse First Boston Corporation, Inc., an affiliate of Nautilus, in an amount of $2,000,000. Except for the agreements described above or in the response to Item 4, to the best knowledge of the Reporting Persons, there are no contracts, arrangements, understandings or relationships (legal or otherwise) among the persons named in Item 2 and between such persons and any person with respect to any securities of the Company, including, but not limited to, transfer or voting of any of the securities, finder's fees, joint ventures, loan or option arrangements, puts or calls, guarantees of profits, division of profits or loss, or the giving or withholding of proxies. C/R Coinvestment II Agreement The following description of the letter agreement, dated as of July 16, 2002, by and between C/R GP and Midstream Holdings, LLC, with respect to C/R Coinvestment II (the "C/R Coinvestment II Agreement," which is attached hereto as Exhibit 5 and incorporated herein by reference), is a summary thereof and does not purport to be complete and is qualified in its entirety by reference to the C/R Coinvestment II Agreement. Pursuant to the C/R Coinvestment II Agreement, the limited partner of C/R Coinvestment II will have the right to cause C/R Coinvestment II to distribute all of the portfolio investments, including any shares of Common Stock and Warrants, held by C/R Coinvestment II to such limited partner on or after the two-year anniversary of C/R Coinvestment II's initial acquisition of such shares and Warrants, subject to any then-applicable legal, tax, regulatory or contractual restrictions. Subsequently, such shares of Common Stock and Warrants will be subject to the terms and conditions of the Shareholders' Agreement. Until such shares and Warrants are distributed to such limited partner, it will have the right to participate, through C/R Coinvestment II, in any further transactions engaged in by the C/R Purchasers in respect of the Company on a pro rata basis with the other C/R Purchasers. Management and control over C/R Coinvestment II, including with respect to its investments, will be vested solely in C/R GP, as the general partner. Item 7. Material to be Filed as Exhibits. Exhibit 1: Stock Purchase Agreement dated as of June 13, 2002, by and among Seabulk International, Inc., the C/R Purchasers and Nautilus. Exhibit 2: Securities Purchase Agreement dated as of June 13, 2002, by and among Loomis, Sayles & Company, L.P., the C/R Purchasers and Nautilus. Exhibit 3: Stockholders' Agreement Term Sheet. Exhibit 4: Fee Letter dated June 13, 2002, by and among Seabulk International, Inc., Carlyle/Riverstone Energy Partners, L.P. and Credit Suisse First Boston Corporation. 12 Exhibit 5: Letter Agreement dated as of July 16, 2002, by and between C/R Marine GP Corp. and Midstream Holdings, LLC. Exhibit 6: Joint Filing Agreement dated as of July 16, 2002. 13 After reasonable inquiry and to the best knowledge and belief of the undersigned, the undersigned certifies that the information set forth in this statement is true, complete and correct. Date: July 16, 2002 C/R Marine Domestic Partnership, L.P. By: C/R Marine GP Corp. its General Partner By: /s/ Daniel A. D'Aniello --------------------------------- Name: Daniel A. D'Aniello Title: President 14 After reasonable inquiry and to the best knowledge and belief of the undersigned, the undersigned certifies that the information set forth in this statement is true, complete and correct. Date: July 16, 2002 C/R Marine Non-U.S. Partnership, L.P. By: C/R Marine GP Corp. its General Partner By: /s/ Daniel A. D'Aniello --------------------------------- Name: Daniel A. D'Aniello Title: President 15 After reasonable inquiry and to the best knowledge and belief of the undersigned, the undersigned certifies that the information set forth in this statement is true, complete and correct. Date: July 16, 2002 C/R Marine Coinvestment, L.P. By: C/R Marine GP Corp. its General Partner By: /s/ Daniel A. D'Aniello -------------------------------- Name: Daniel A. D'Aniello Title: President 16 After reasonable inquiry and to the best knowledge and belief of the undersigned, the undersigned certifies that the information set forth in this statement is true, complete and correct. Date: July 16, 2002 C/R Marine Coinvestment II, L.P. By: C/R Marine GP Corp. its General Partner By: /s/ Daniel A. D'Aniello ------------------------------- Name: Daniel A. D'Aniello Title: President 17 After reasonable inquiry and to the best knowledge and belief of the undersigned, the undersigned certifies that the information set forth in this statement is true, complete and correct. Date: July 16, 2002 C/R Marine GP Corp. By: /s/ Daniel A. D'Aniello ------------------------------- Name: Daniel A. D'Aniello Title: President 18 Schedule I Executive Officers and Directors of C/R Marine GP Corp. The names of the Directors and the names and titles of the Executive Officers of C/R Marine GP Corp. ("C/R GP") and their business addresses and principal occupations are set forth below. If no address is given, the Director's or Executive Officer's business address is c/o Riverstone Holdings, LLC, 712 Fifth Avenue, 19th Floor, New York, NY 10019. Unless otherwise indicated, each occupation set forth opposite an individual's name refers to C/R GP and each individual is a United States citizen. Name, Business Address Present Principal Occupation * William E. Conway, Jr. Director and Vice President; Founder and Managing Director of The Carlyle Group * Daniel A. D'Aniello Director and President; Founder and Managing Director of The Carlyle Group * Jim H. Derryberry Director and Vice President; Chief Operating Officer of Riverstone Holdings LLC * John F. Harris Secretary; Managing Director and Chief Financial Officer of The Carlyle Group * Pierre F. Lapeyre, Jr. Director and Vice President; Founder and Managing Director of Riverstone Holdings LLC * David M. Leuschen Director and Vice President; Founder and Managing Director of Riverstone Holdings LLC * David M. Rubenstein Director and Vice President; Founder and Managing Director of The Carlyle Group
19 EX-1 3 dex1.txt EXHIBIT 1 Exhibit 1 EXECUTION COPY - -------------------------------------------------------------------------------- STOCK PURCHASE AGREEMENT BY AND AMONG SEABULK INTERNATIONAL, INC. AND THE INVESTORS LISTED ON SCHEDULE 1 HERETO DATED AS OF JUNE 13, 2002 - -------------------------------------------------------------------------------- TABLE OF CONTENTS
PAGE Article I DEFINITIONS..................................................................... 1 SECTION 1.01 Definitions................................................. 1 Article II Purchase and Sale............................................................... 4 SECTION 2.01 Purchase and Sale........................................... 4 SECTION 2.02 Closing..................................................... 5 SECTION 2.03 Closing Deliveries.......................................... 5 Article III Representations and Warranties of the Company................................... 5 SECTION 3.01 Organization and Qualification; Subsidiaries................ 5 SECTION 3.02 Capitalization.............................................. 6 SECTION 3.03 Authority; DGCL 203; Requisite Vote; The Shares; etc ....... 7 SECTION 3.04 SEC Reports; Financial Statements........................... 8 SECTION 3.05 No Undisclosed Liabilities.................................. 9 SECTION 3.06 Absence of Changes.......................................... 9 SECTION 3.07 Information Supplied........................................ 9 SECTION 3.08 Consents and Approvals; No Violations....................... 9 SECTION 3.09 No Default.................................................. 10 SECTION 3.10 Litigation.................................................. 10 SECTION 3.11 Compliance with Law......................................... 10 SECTION 3.12 Tax Matters................................................. 11 SECTION 3.13 Employee Plans; Labor Matters............................... 14 SECTION 3.14 Environmental Matters....................................... 18 SECTION 3.15 Real Property............................................... 21 SECTION 3.16 Absence of Questionable Payments............................ 21 SECTION 3.17 Material Contracts.......................................... 22 SECTION 3.18 Insurance................................................... 23 SECTION 3.19 Assets...................................................... 23 SECTION 3.20 Transactions with Related Parties........................... 23 SECTION 3.21 Maritime Matters............................................ 24 SECTION 3.22 Suppliers and Customers..................................... 24
i TABLE OF CONTENTS (CONTINUED) Page SECTION 3.23 Brokers............................................................. 24 SECTION 3.24 Fairness Opinion.................................................... 24 SECTION 3.25 Foreign Ownership................................................... 25 SECTION 3.26 Ruling.............................................................. 25 Article IV Representations and Warranties of the Investors......................................... 25 SECTION 4.01 Organization; Authorization; Enforceability......................... 25 SECTION 4.02 Private Placement................................................... 25 SECTION 4.03 No Violation; Consents.............................................. 26 SECTION 4.04 Financing........................................................... 26 SECTION 4.05 Citizenship......................................................... 26 Article V Covenants............................................................................... 26 SECTION 5.01 Conduct of Business Pending the Closing............................. 26 SECTION 5.02 Access.............................................................. 29 SECTION 5.03 Preparation of Proxy Statement; Stockholder Meeting................. 29 SECTION 5.04 Commercially Reasonable Efforts..................................... 30 SECTION 5.05 Listing of Shares................................................... 31 SECTION 5.06 Use of Proceeds..................................................... 31 SECTION 5.07 Board of Directors.................................................. 31 SECTION 5.08 No Solicitation..................................................... 32 SECTION 5.09 Tender Offer; Redemption of Note; Debt Offering..................... 34 SECTION 5.10 Breaches of Representations and Warranties and Covenants............ 34 SECTION 5.11 Ruling Request; Ruling.............................................. 35 SECTION 5.12 Capitalization Certificate.......................................... 35 SECTION 5.13 By-laws............................................................. 35 SECTION 5.14 Certificates; Legend................................................ 35 Article VI CONDITIONS PRECEDENT TO THE CLOSING..................................................... 36 SECTION 6.01 Conditions to the Company's Obligations in Respect of the Closing... 36
ii TABLE OF CONTENTS (CONTINUED) Page SECTION 6.02 Conditions to Each Investor's Obligations in Respect of the Closing... 37 SECTION 6.03 Conditions to Each Party's Obligations in Respect of the Closing...... 39 Article VII TERMINATION............................................................................... 39 SECTION 7.01 Termination........................................................... 39 SECTION 7.02 Manner and Effect of Termination...................................... 41 SECTION 7.03 Termination Fee....................................................... 41 Article VIII Miscellaneous............................................................................. 41 SECTION 8.01 Survival; Effect of Investigation..................................... 41 SECTION 8.02 Notices............................................................... 42 SECTION 8.03 GOVERNING LAW......................................................... 43 SECTION 8.04 ENFORCEMENT OF AGREEMENT; WAIVER OF JURY TRIAL; ETC................... 43 SECTION 8.05 Attorneys' Fees....................................................... 44 SECTION 8.06 Entire Agreement...................................................... 44 SECTION 8.07 Modifications and Amendments.......................................... 44 SECTION 8.08 Waivers and Extensions................................................ 44 SECTION 8.09 Titles and Headings; Rules of Construction............................ 44 SECTION 8.10 Exhibits and Schedules................................................ 45 SECTION 8.11 Expenses.............................................................. 45 SECTION 8.12 Press Releases and Public Announcements............................... 45 SECTION 8.13 Assignment; No Third Party Beneficiaries.............................. 46 SECTION 8.14 Severability.......................................................... 46 SECTION 8.15 Counterparts.......................................................... 46 SECTION 8.16 Certain Limitations................................................... 46
iii STOCK PURCHASE AGREEMENT STOCK PURCHASE AGREEMENT, dated as of June 13, 2002, by and among Seabulk International, Inc., a Delaware corporation (the "Company"), and each of the investors listed on Schedule 1 hereto (each, an "Investor" and, collectively, the "Investors"). WHEREAS, the Board of Directors (as defined herein) deems it advisable and in the best interests of the Company to, and the Company and the Investors desire that the Company, issue and sell to the Investors, and the Investors purchase from the Company, an aggregate of 12,500,000 shares (the "Shares") of common stock, par value $.01 per share, of the Company ("Common Stock"), on the terms and subject to the conditions set forth in this Agreement (the "Stock Purchase"); and WHEREAS, immediately following the execution and delivery of this Agreement, the Investors and Loomis, Sayles & Company, L.P. ("Loomis") will enter into a Securities Purchase Agreement (the "Loomis Purchase Agreement") pursuant to which Loomis will agree (a) to cause the vote of all shares of Common Stock controlled by it in favor of the Transactions (as hereinafter defined) and (b) to cause the sale to the Investors of all the shares of Common Stock, Common Stock Purchase Warrants and Class A Common Stock Purchase Warrants controlled by it immediately following the Stock Purchase on the terms and subject to the conditions set forth in the Loomis Purchase Agreement (the "Loomis Securities Purchase"). NOW, THEREFORE, the parties hereto, intending to be legally bound, hereby agree as follows. ARTICLE I DEFINITIONS SECTION 1.01 As used in this Agreement, the following terms shall have the following meanings: "Affiliate" means, with respect to any Person, any other Person directly or indirectly controlling, controlled by, or under direct or indirect common control with, such Person. For the purposes of this definition, "control" when used with respect to any Person means the power to direct the management and policies of such Person, directly or indirectly, whether through the ownership of voting securities, by contract or otherwise; and the terms "controlling" and "controlled" have meanings correlative to the foregoing. "Arrangers" means Fortis Capital Corp. and NIB Capital Bank N.V. "Board of Directors" means the Board of Directors of the Company. "Business Day" means any day other than a Saturday, a Sunday, or a day when banks in The City of New York are authorized by applicable Law to be closed. "Charter Amendment" means an amendment to the Certificate of Incorporation of the Company in substantially the form of Exhibit A hereto. "Commission" means the United States Securities and Exchange Commission. "Commitment Letter" means the commitment letter from the Arrangers relating to the Refinancing, a copy of which is attached hereto as Exhibit B. "Company Option Plans" means the Company's Amended and Restated Equity Ownership Plan and the Company's Stock Option Plan for Directors. "Contract" means any contract, charter, lease, loan agreement, mortgage, security agreement, trust indenture, note, bond, or other agreement (whether written or oral) or instrument. "Debt Offering" means, if undertaken in accordance with Section 5.09, an offering by the Company of debt securities. "DGCL" means the General Corporation Law of the State of Delaware, as from time to time amended. "Exchange Act" means the Securities Exchange Act of 1934, as from time to time amended, and the rules and regulations of the Commission promulgated thereunder. "Existing Credit Facility" means the credit facility related to the Credit Agreement, dated as of December 15, 1999, among the Company, the financial institutions parties thereto, Bankers Trust Company, as administrative agent, Deutsche Bank Securities, Inc., as lead arranger and book manager, and Fortis Capital Corp., as syndication agent and co-arranger. "Fee Letter" means that certain fee letter, dated as of the date hereof, by and among the Company, Credit Suisse First Boston Corporation and Carlyle/Riverstone Energy Partners, L.P. "GAAP" means United States generally accepted accounting principles, consistently applied and in effect as of the date of the financial statements to which it refers. "Governmental Authority" means (a) any foreign, Federal, state or local court or governmental or regulatory agency or authority, (b) any arbitration board, tribunal or mediator, or (c) any national stock exchange or Commission recognized trading market on which securities issued by the Company are listed or quoted. "Gulf Offshore Contracts" means Contracts related to offshore operations of the Company and its Subsidiaries conducted in the Gulf of Mexico. 2 "HSR Act" means the Hart-Scott-Rodino Antitrust Improvements Act of 1976, as amended, and applicable rules and regulations promulgated thereunder. "Knowledge" means, with respect to a party, the actual knowledge of such party's officers, directors, agents, representatives and employees, after due inquiry. "Kurz Employment Agreement" means an Amended and Restated Employment Agreement to be entered into between the Company and Gerhard E. Kurz, on substantially the terms set forth in the term sheet attached hereto as Exhibit C. "Law" means any United States Federal, state, local or foreign law, statute, rule, regulation, order, writ, injunction, judgment, decree or permit of any Governmental Authority. "Lien" means any mortgage, pledge, lien, security interest, claim, restriction, right of first refusal or first offer, charge or encumbrance 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 Adverse Effect" means a material adverse effect on (a) the business, condition (financial or otherwise), operations or properties of the Company and its Subsidiaries, taken as a whole, or (b) the ability of the Company to timely perform any of its obligations under this Agreement or the other Transaction Documents, provided, however, that Material Adverse Effect shall exclude any change or effect due to the public announcement of the Transactions or the execution and delivery of this Agreement. "Notes" means the Company's 12 1/2% Senior Secured Notes due 2007 issued pursuant to the Notes Indenture. "Notes Indenture" means that certain Indenture, dated as of December 15, 1999, among the Company, as issuer, the Subsidiary Guarantors named on the signature pages thereto, State Street Bank and Trust Company, as trustee, and Bankers Trust Company, as collateral agent. "Permitted Transferee" means, with respect to any Investor or any Permitted Transferee of any Investor, any Affiliate of such Investor or such Permitted Transferee; provided, however, that each Permitted Transferee prior to any transfer (i) must agree in writing to be bound by the terms of this Agreement to the same extent, and in the same manner, as the transferring Investor prior to the transfer to such Permitted Transferee and (ii) unless such Permitted Transferee is identified in the Ruling contemplated by Section 5.11 hereof, must execute an affidavit of citizenship in a form acceptable to the Company based upon which the Company shall have determined that the transfer to the Permitted Transferee will not cause the Company to fail to qualify to operate vessels in the coastwise trade of the United States. 3 "Person" means any individual, partnership, corporation, limited liability company, joint venture, association, joint-stock company, trust, unincorporated organization, Governmental Authority or other entity. "Refinancing" means the refinancing of the Existing Credit Facility, on the terms set forth in the Commitment Letter. "Securities Act" means the Securities Act of 1933, as from time to time amended, and the rules and regulations of the Commission promulgated thereunder. "Stockholders Agreement" means a Stockholders Agreement to be entered into among the Company, the Investors, Gerhard E. Kurz on substantially the terms set forth in the term sheet attached hereto as Exhibit D. "Subsidiary" means, with respect to any Person (a) a corporation a majority of whose capital stock with voting power, under ordinary circumstances, to elect directors is at the time, directly or indirectly, owned by such Person, by a Subsidiary of such Person, or by such Person and one or more Subsidiaries of such Person, (b) a partnership in which such Person or a Subsidiary of such Person is, at the date of determination, a general partner of such partnership and has the power to direct the policies and management of such partnership, or (c) any other Person (other than a corporation) in which such Person, a Subsidiary of such Person or such Person and one or more Subsidiaries of such Person, directly or indirectly, at the date of determination thereof, has (i) at least a majority ownership interest or (ii) the power to elect or direct the election of a majority of the directors or other governing body of such Person. "Tender Offer" means, if undertaken in accordance with Section 5.09, an offer by the Company to purchase all outstanding Notes for cash. "Transaction Documents" means, collectively, this Agreement, the Charter Amendment, the Commitment Letter, the Fee Letter, the Kurz Employment Agreement, the Stockholders Agreement and each other document, instrument, certificate or agreement necessary to effect the Transactions. "Transactions" means, collectively, the Stock Purchase, the Loomis Securities Purchase, the Refinancing, the filing of the Charter Amendment, the Redemption (as hereinafter defined), and if conducted, the Tender Offer and the Debt Offering and the other transactions contemplated by the Transaction Documents. ARTICLE II PURCHASE AND SALE SECTION 2.01 Purchase and Sale. Upon the terms and subject to the conditions set forth in this Agreement, at the Closing, the Company shall sell to each Investor, and each Investor (severally but not jointly) shall purchase from the Company, that number of shares of Common Stock set forth with respect to such Investor on Schedule 1 hereto at a purchase price of $8.00 per 4 Share in U.S. Dollars. Such purchase price shall be paid as provided in Section 2.03. SECTION 2.02 Closing. The Stock Purchase shall occur as soon as practicable, but in any event within three (3) Business Days following the satisfaction of the conditions to the Closing set forth in Article VI hereof (other than those conditions that by their nature are to be satisfied at such Closing), or at such other date as the parties hereto shall agree in writing (consummation of the Stock Purchase is referred to as the "Closing," and such date is referred to as the "Closing Date"), at the offices of Weil, Gotshal & Manges LLP, located at 767 Fifth Avenue, New York, New York 10153, or at such other place as the parties hereto shall agree. SECTION 2.03 Closing Deliveries. At the Closing: (a) Each Investor shall deliver to the Company (i) the officer's certificate of such Investor contemplated by Section 6.01 and (ii) an amount equal to the purchase price for the shares being purchased by such Investor (as set forth in Schedule 1) via wire transfer of immediately available funds to such bank account as the Company shall designate in writing prior to the Closing Date. (b) The Company shall deliver to each Investor (i) the officer's certificate of the Company contemplated by Section 6.02, (ii) a certificate or certificates for the number of Shares purchased by such Investor (as set forth in Schedule 1) pursuant to Section 2.01, which shall be in definitive form and registered in the name of such Investor or its nominee or designee and in such denominations as such Investor shall request prior to the Closing Date, (iii) an opinion or opinions of counsel to the Company, dated the Closing Date, in form and substance reasonably satisfactory to the Investors, and (iv) each other document, instrument or agreement required to be delivered to the Investors as a condition to the obligation of the Investors to purchase the Shares, as contemplated by Section 6.02. ARTICLE III REPRESENTATIONS AND WARRANTIES OF THE COMPANY The Company hereby represents and warrants to each Investor on the date hereof and on and as of the Closing Date as follows: SECTION 3.01 Organization and Qualification; Subsidiaries. The Company is a corporation duly organized, validly existing and in good standing under the Laws of the State of Delaware and has all requisite corporate power and authority to own, lease and operate its properties and to carry on its businesses as now conducted and as proposed to be conducted, except as would not reasonably be expected to have a Material Adverse Effect. Each of the Subsidiaries of the Company is a corporation or other legal entity duly organized, validly existing and in good standing under the Laws of the jurisdiction of its incorporation or organization and has all requisite corporate, partnership or similar power and authority to own, lease and operate 5 its properties and to carry on its businesses as now conducted and proposed to be conducted, except as would not reasonably be expected to have a Material Adverse Effect. Schedule 3.01 sets forth a list of all Subsidiaries of the Company and, except as listed on such Schedule, the Company does not own, directly or indirectly, beneficially or of record, any shares of capital stock, membership, partnership, trust or other interest in any other Person or any other investment in any other Person. Except as set forth on Schedule 3.01, neither the Company nor any of its Subsidiaries is engaged in any joint venture or partnership with any other Person. Each of the Company and its Subsidiaries is duly qualified or licensed and in good standing to do business in each jurisdiction in which the property owned, leased or operated by it or the nature of the business conducted by it makes such qualification or licensing necessary, except where the failure to be so qualified, licensed or in good standing is not material. The Company has delivered to the Investors accurate and complete copies of the certificate of incorporation and bylaws (or other similar governing documents), as currently in effect, of the Company and each of its Subsidiaries. SECTION 3.02 Capitalization. (a) The authorized capital stock of the Company consists of 20 million shares of Common Stock, of which 10,556,755 shares were issued and outstanding as of the close of business on May 22, 2002, and 5 million shares of preferred stock, no shares of which are outstanding. All of the issued and outstanding shares of capital stock of the Company have been validly issued, and are duly authorized, fully paid, non-assessable and free of preemptive rights. Except as set forth on Schedule 3.02(a), as of the date hereof, there are no outstanding (i) securities of the Company or any of its Subsidiaries convertible into or exchangeable for shares of capital stock or voting securities of the Company, (ii) options, warrants or other rights to acquire from the Company or any of its Subsidiaries, or obligations of the Company or any of its Subsidiaries to issue, any capital stock, voting securities or securities convertible into or exchangeable for capital stock or voting securities of the Company or (iii) equity equivalents, interests in the ownership or earnings of the Company or any of its Subsidiaries or other similar rights (including stock appreciation rights) (collectively, "Company Securities"). No shares of capital stock of the Company have been issued by the Company since May 22, 2002, except pursuant to any exercise of options or warrants described in Schedule 3.02(a). There are no outstanding obligations of the Company or any of its Subsidiaries to repurchase, redeem or otherwise acquire any shares of capital stock of the Company or any Company Securities. There are no stockholder agreements, voting trusts or other agreements or understandings to which the Company or any of its Subsidiaries is a party or to which it is bound relating to the voting of any shares of capital stock of the Company. Schedule 3.02(a) sets forth information as of the date hereof regarding the exercise price, date of grant, term and number of shares underlying each outstanding option and warrant to acquire capital stock of the Company. (b) Except as described in Schedule 3.01, all of the outstanding capital stock of the Company's Subsidiaries is owned by the Company, directly or indirectly, free and clear of any Lien or any other limitation or restriction (including any restriction on the right to vote or sell the same). There are no securities of the Company or its Subsidiaries convertible into or 6 exchangeable for, no options or other rights to acquire from the Company or its Subsidiaries, and no other Contract, understanding, arrangement or obligation (whether or not contingent) providing for the issuance or sale, directly or indirectly of, any capital stock or other ownership interests in, or any other securities of, any Subsidiary of the Company. SECTION 3.03 Authority; DGCL 203; Requisite Vote; The Shares; etc. (a) The Company has all necessary corporate power and authority to execute and deliver the Transaction Documents and to consummate the Transactions. (b) The Board of Directors has duly and validly (i) authorized the execution, delivery and performance by the Company of this Agreement and the adoption of the Charter Amendment, (ii) resolved (A) that this Agreement, the consummation of the Stock Purchase and the adoption of the Charter Amendment are advisable and in the best interests of the Company and its stockholders and (B) to recommend that the stockholders of the Company approve the Stock Purchase and the Charter Amendment and (iii) directed that the Stock Purchase and the Charter Amendment be submitted to the stockholders of the Company for their approval. The affirmative approval of the holders of shares (in person or by proxy) of Common Stock as of the applicable record date representing (x) a majority of the total votes cast by holders of shares of Common Stock on the Stock Purchase and (y) a majority of the outstanding shares of Common Stock in respect of the Charter Amendment (collectively, the "Company Requisite Vote") is the only vote of the holders of any class or series of capital stock of the Company necessary to approve the Transactions. As of the Closing, all corporate proceedings and actions on the part of the Company that are necessary to authorize the Transaction Documents or to consummate the Transactions shall have been held or taken. (c) This Agreement has been, and the other Transaction Documents to which the Company is a party will prior to the Closing be, duly and validly executed and delivered by the Company and, assuming the execution thereof by the other parties thereto, this Agreement constitutes, and each of such other Transaction Documents when so executed will constitute, valid, legal and binding agreements of the Company, enforceable against the Company in accordance with their respective terms (except as enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium, fraudulent transfer and similar Laws of general applicability relating to or affecting creditors' rights or by general equity principles, including public policy). (d) The Company has taken all action required to approve, as contemplated by paragraph (a)(1) of Section 203 of the DGCL, the Stock Purchase and the Loomis Securities Purchase pursuant to the terms of, and subject to the satisfaction of the conditions contained in, this Agreement and the Loomis Purchase Agreement, respectively. (e) The Shares have been duly and validly authorized subject to receipt of the Company Requisite Vote, and, when issued and delivered in accordance with the terms of this Agreement, will be validly issued and will 7 be fully paid and nonassessable, and the issuance thereof will not have been subject to any preemptive rights or made in violation of any applicable Law. Immediately following the Closing, and assuming the exercise in full of all warrants, options or other rights to acquire (whether or not then exercisable and irrespective of the exercise or purchase price with respect thereto), and the conversion or exchange of all securities convertible into or exchangeable for, securities of the Company ("fully-diluted basis"), the Shares will constitute more than 50% of the outstanding equity interest in, and voting power of, the Company, determined on a fully-diluted basis. (f) Except as set forth on Schedule 3.03, the Company's Certificate of Incorporation and Bylaws do not contain any provision, nor is there any provision of any applicable Law, that (i) prohibits or limits the acquisition, ownership, operation or control by any Investor or any of its Affiliates of any Common Stock or any portion of the assets, operations or business of the Company or any of its Subsidiaries, or that compels any Investor or any if its Affiliates to dispose of any Common Stock, (ii) imposes limitations on the ability of any Investor or any of its Affiliates to acquire or hold, or exercise full rights of ownership of, any Common Stock, including the right to vote any Common Stock on all matters properly presented to the stockholders of the Company, (iii) restrains or prohibits the Closing or any of the Transactions or (iv) would, as a result of the Transactions, cause the termination of or materially limit any right, privilege, permit, license or franchise of the Company or any of its Subsidiaries that is material to the Company and its Subsidiaries taken as a whole. SECTION 3.04 SEC Reports; Financial Statements. The Company has filed all forms, reports and documents required to be filed by it with the Commission since December 15, 1999, each of which complied in all material respects with all applicable requirements of the Securities Act and the Exchange Act as in effect on the dates such forms, reports and documents were filed. The Company's Commission filings publicly available on the Commission's EDGAR system represent complete and accurate copies of all documents (including any amendments thereto) filed by the Company with the Commission since December 15, 1999 and include (i) its Annual Reports on Form 10-K for its fiscal years ended December 31, 1999, 2000 and 2001; (ii) all definitive proxy statements relating to the Company's meetings of stockholders (whether annual or special) held since December 15, 1999; and (iii) all other reports or registration statements filed by the Company with the Commission since December 15, 1999 (all such filings made prior to the date hereof, collectively, the "Company SEC Reports"). None of such Company SEC Reports (including, without limitation, any financial statements or schedules included or incorporated by reference therein) contained, when filed, any untrue statement of a material fact or omitted to state a material fact required to be stated or incorporated by reference therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading. The consolidated financial statements of the Company included in the Company SEC Reports complied as to form in all material respects with applicable accounting requirements and the published rules and regulations of the Commission with respect thereto and fairly present, in accordance with GAAP, the consolidated financial position of the Company and its consolidated Subsidiaries as of the dates thereof and their 8 consolidated results of operations and changes in financial position for the periods then ended (subject, in the case of the unaudited interim financial statements, to normal year-end adjustments that are not expected to be material). Since December 15, 1999, there has not been any change, or any application or request for any change, by the Company or any of its Subsidiaries in accounting principles, methods or policies for financial accounting or Tax purposes. SECTION 3.05 No Undisclosed Liabilities. None of the Company or its Subsidiaries has any indebtedness, liabilities or obligations of any nature, whether or not accrued, contingent or otherwise, and whether due or to become due or asserted or unasserted ("Liabilities"), that would have been required to be reflected in, reserved against or otherwise described in the balance sheet (the "Balance Sheet") contained in the financial statements included in the Company's Form 10-K for the fiscal year ended December 31, 2001, that are not fully reflected in, reserved against or otherwise described in the Balance Sheet or the notes thereto, in each case to the fullest extent required by GAAP, other than Liabilities that (a) were incurred in the ordinary course of business consistent with past practices since December 31, 2001 and (b) are not, individually or in the aggregate, material. SECTION 3.06 Absence of Changes. Except as set forth in Schedule 3.06 or to the extent publicly disclosed by the Company in the Company SEC Reports, since December 31, 2001, (a) the business of the Company and its Subsidiaries has been carried on only in the ordinary and usual course consistent with past practice, (b) there have been no events, changes, developments, occurrences or effects with respect to the Company or its Subsidiaries, which has had, or which would reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect, and (c) none of the Company or any of its Subsidiaries has taken any actions of the type described in Section 5.01 hereof. SECTION 3.07 Information Supplied. None of the information included or incorporated by reference in the Proxy Statement described in Section 5.03 will, at the date such Proxy Statement is mailed to stockholders and at the times of the meetings of stockholders to be held in connection with the applicable Transactions, contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they are made, not misleading (it being understood that the Company makes no representation in this paragraph with respect to information relating to the Investors or Loomis supplied in writing by the Investors or Loomis, as the case may be (or supplied by the Company, but relating solely to the Investors or Loomis, and confirmed in writing by the Investors or Loomis, as the case may be), expressly for inclusion in such Proxy Statement). SECTION 3.08 Consents and Approvals; No Violations. Except for (a) the filing of the Charter Amendment with the Secretary of State of the State of Delaware in accordance with the DGCL, (b) the filings by the Company, if any, required by the HSR Act and the expiration or termination of the applicable waiting period with respect thereto, (c) applicable filings, if any, with the Commission pursuant to the Exchange Act, (d) applicable filings, if 9 any, with Nasdaq in connection with the listing of the Shares, (e) filings, if any, as may be required under state securities or "blue sky" Laws, (f) the Ruling, (g) the Company Requisite Vote and (h) as set forth on Schedule 3.08, no consent, clearance, waiver, approval, authorization or order of, or filing or registration with, any Person is required to be obtained or made by the Company or any of its Subsidiaries for the execution, delivery and performance of the Transaction Documents or the consummation of the Transactions. Except as set forth on Schedule 3.08 or as contemplated under the Transaction Documents, neither the execution, delivery and performance of the Transaction Documents by the Company nor the consummation by the Company of the Transactions will (i) conflict with or result in any breach of any provision of the respective certificate or articles of incorporation or bylaws (or similar governing documents) of the Company or any of its Subsidiaries, (ii) conflict with, result in a violation or breach of, or constitute (with or without due notice or lapse of time or both) a default (or give rise to any right of termination, amendment, cancellation or acceleration) under, any of the terms, conditions or provisions of any Material Contract (as hereinafter defined), (iii) result in the creation of any Lien, or (iv) subject to the filings set forth in the first sentence of this Section, violate any Law applicable to the Company or any of its Subsidiaries or any of their respective properties or assets. SECTION 3.09 No Default. Neither the Company nor any of its Subsidiaries are in breach or violation of (i) any term or provision of its certificate of incorporation, bylaws or other governing documents, except, with respect to the Subsidiaries of the Company, violations that would not reasonably be expected to have a Material Adverse Effect, or (ii) any material term or provision of any Material Contract or any Law applicable to the Company, its Subsidiaries or any of their respective properties or assets. SECTION 3.10 Litigation. (a) Schedule 3.10 sets forth each suit, claim, action, proceeding or investigation pending or, to the Company's Knowledge, threatened against the Company or any of its Subsidiaries or any of their respective properties as of the date hereof, except for such suits, claims, actions, proceedings or investigations that seeks solely money damages not in excess of $150,000 in value with respect to any single suit, claim, action, proceeding or investigation or $300,000 in the aggregate. (b) Except as and to the extent publicly disclosed by the Company in the Company SEC Reports or as disclosed in Schedule 3.10, there is no material suit, claim, action, proceeding or investigation pending or, to the Company's Knowledge, threatened against the Company or any of its Subsidiaries or any of their respective properties. Except as and to the extent publicly disclosed by the Company in the Company SEC Reports or as disclosed in Schedule 3.10, none of the Company or its Subsidiaries is subject to any outstanding order, writ, injunction or decree. SECTION 3.11 Compliance with Law. The Company and its Subsidiaries hold all material permits, licenses, variances, exemptions, orders and approvals of all United States (federal, state or local) Governmental Authorities and, to the Company's Knowledge, the Company and its Subsidiaries 10 hold all material permits, licenses, variances, exemptions, orders and approvals of all non-United States Governmental Authorities necessary for the lawful conduct of their respective businesses (the "Company Permits"), and the Company and its Subsidiaries are in material compliance with the terms of such Company Permits. The businesses of the Company and its Subsidiaries are not being conducted in material violation of any Law of the United States (federal, state or local) applicable to the Company or any of its Subsidiaries and, to the Company's Knowledge, the businesses of the Company and its Subsidiaries are not being conducted in material violation of any non-United States Law applicable to the Company or any of its Subsidiaries. Except as disclosed on Schedule 3.10 or Schedule 3.11, no investigation or review by any Governmental Authority with respect to the Company or any of its Subsidiaries is pending or, to the Company's Knowledge, threatened, nor has any Governmental Authority indicated an intention to conduct the same. Except as disclosed on Schedule 3.08 or Schedule 3.11, the execution, delivery and performance by the Company of the Transaction Documents and the consummation of the Transactions will not violate or result in the loss, revocation, termination or modification of any Company Permit or any other right, privilege, benefit, license or franchise of the Company or its Subsidiaries that is material to the Company and its Subsidiaries. SECTION 3.12 Tax Matters. Except as described in Schedule 3.12: (a) The Company and each of its Subsidiaries, and each affiliated group (within the meaning of Section 1504 of the Internal Revenue Code of 1986, as amended (the "Code")) of which the Company or any of its Subsidiaries is or has been a member, has timely filed all Tax Returns (as hereinafter defined) required to be filed by it. All such Tax Returns are complete and correct in all material respects. The Company and each of its Subsidiaries has paid (or the Company has paid on its Subsidiaries' behalf) all Taxes (as hereinafter defined) due for the periods covered by such Tax Returns. The most recent consolidated financial statements contained in the Company SEC Reports reflect an adequate reserve for all Taxes payable by the Company or any of its Subsidiaries for all taxable periods and portions thereof through the date of such financial statements. The Company has previously delivered to the Investors copies of (i) all federal, state, local and foreign income and franchise Tax Returns filed by the Company or any of its Subsidiaries for the taxable years 1998, 1999 and 2000; and (ii) any audit report issued within the last two years (or otherwise with respect to any audit or investigation in progress) relating to Taxes due from or with respect to the Company or its Subsidiaries. For purposes of this Agreement, "Tax" or "Taxes" shall mean any (x) domestic or foreign federal, state or local taxes, charges, fees, levies, imposts, duties and governmental fees or other like assessments or charges of any kind whatsoever (including but not limited to any income, net income, gross income, receipts, windfall profit, severance, property, production, sales, use, business and occupation, license, excise, registration, franchise, employment, payroll, withholding, alternative or add-on minimum, intangibles, ad valorem, transfer, gains, stamp, estimated, transaction, title, capital, paid-up capital, profits, occupation, premium, value-added, recording, real property, personal property, inventory and merchandise, business privilege, federal highway use, commercial rent or environmental tax), (y) interest, penalties, fines, additions 11 to tax or additional amounts imposed by any taxing authority in connection with (A) any item described in clause (x), or (B) the failure to comply with any requirement imposed with respect to any Tax Return, and (z) liability in respect of any items described in clause (x) and/or (y) payable by reason of Contract, assumption, transferee liability, operation of Law, Treasury Regulation section 1.1502-6(a) (or any predecessor or successor thereof or any analogous or similar provision under Law) or otherwise. "Tax Return" shall mean any return, report or statement required to be filed by any Governmental Authority with respect to any Tax (including any attachments thereto and any amendment thereof) including, but not limited to, any information return, claim for refund, amended return or declaration of estimated Tax, and including, where permitted or required, consolidated, combined or unitary returns for any group of entities that includes the Company or any of its Subsidiaries. (b) No material deficiencies for any Taxes have been proposed, asserted or assessed against the Company or any of its Subsidiaries that have not been fully paid or adequately provided for in the appropriate financial statements of the Company and its Subsidiaries in accordance with GAAP, no requests for waivers of the time to assess any Taxes are pending, and no power of attorney with respect to any Taxes has been executed or filed with any taxing authority. No federal, state, local or foreign audits or other administrative proceedings or court proceedings are presently pending with regard to any Taxes or Tax Returns of the Company or any of its Subsidiaries and neither the Company nor any of its Subsidiaries has received a written notice of any pending audit or proceeding and, to the Company's Knowledge, none is threatened. (c) To the Company's Knowledge, no Liens for Taxes exist with respect to any assets or properties of the Company or any of its Subsidiaries, except for statutory Liens for Taxes not yet due. (d) None of the Company or any of its Subsidiaries is a party to or is bound by any Tax sharing agreement, Tax indemnity obligation or similar agreement, arrangement or practice with respect to Taxes (including any advance pricing agreement, closing agreement or other agreement relating to Taxes with any taxing authority). (e) There are no employment, severance or termination agreements currently in effect which would give rise to payment of any amount (whether in cash or property or the vesting of property) as a result of any of the Transactions which is nondeductible by reason of Section 280G or 162(m) of the Code. (f) All Taxes that the Company or its Subsidiaries have been or are required by United States Law (federal, state or local) to withhold or to collect for payment have been, in all material respects, duly withheld and collected, and have been paid over to the appropriate Governmental Authority. To Company's Knowledge, all Taxes that the Company or its Subsidiaries have been or are required by non-United States Law to withhold or to collect for payment have been, in all material respects, duly withheld and collected, and have been paid over to the appropriate Governmental Authority. 12 (g) Neither the Company nor any of its Subsidiaries, nor any other Person on behalf of the Company or its Subsidiaries, has (A) agreed to or is required to make any adjustments pursuant to Section 481(a) of the Code (or any predecessor provision) or any similar provision of Law (nor, to the Knowledge of the Company, has the IRS or any other Governmental Authority proposed any such adjustment), or has any application pending with any Governmental Authority requesting permission for any changes in accounting methods that relate to the Company or its Subsidiaries, (B) within the five years prior to the date of this Agreement, executed or entered into a closing agreement pursuant to Section 7121 of the Code (or any predecessor provision) or any similar provision of Law, (C) filed a consent pursuant to Section 341(f) of the Code or agreed to have Section 341(f)(2) of the Code apply to any disposition of a "subsection (f) asset" (as such term is defined in Section 341(f)(4) of the Code), (D) extended the time (1) within which to file any Tax Return, which Tax Return has since not been filed or (2) for the assessment or collection of Taxes, which Taxes have not since been paid or (E) granted to any Person any power of attorney that is currently in force with respect to any Tax matter. (h) No property owned by the Company or any of its Subsidiaries (i) is property required to be treated as being owned by another person pursuant to the provisions of Section 168(f)(8) of the Internal Revenue Code of 1954, as amended and in effect immediately prior to the enactment of the Tax Reform Act of 1986; (ii) constitutes "Tax exempt use property" within the meaning of Section 168(h)(1) of the Code; (iii) is "Tax exempt bond financed property" within the meaning of Section 168(g) of the Code; or (iv) is "limited use property" within the meaning of Rev. Proc. 76-30. (i) Neither the Company nor any of its Subsidiaries is currently, has been within the last five years, or anticipates becoming a "United States real property holding company" within the meaning of Section 897(c) of the Code. (j) Schedule 3.12(j) sets forth a list of all material types of Taxes paid and material types of Tax Returns filed by or on behalf of the Company and each of its Subsidiaries since 1999. To the Company's Knowledge, no claim has been made within the past two years, by a taxing authority in a jurisdiction where the Company or any of its Subsidiaries does not file Tax Returns to the effect that the Company or any of its Subsidiaries is or may be subject to Taxation by that jurisdiction. (k) Neither the Company nor any of its Subsidiaries has received any private letter rulings from the IRS or comparable rulings from other United States taxing authorities. To the Company's Knowledge, neither the Company nor any of its Subsidiaries has received any private letter rulings from any non-United States federal, state or local taxing authorities or comparable rulings from other non-United States taxing authorities. (l) To the Company's Knowledge, none of the Company or its Subsidiaries (A) is or has been a member of any "affiliated group" within the meaning of Section 1504 of the Code or any similar group defined under a similar provision of Law (other than a group the common parent of which is the Company) that filed or was required to file a consolidated combined or unitary Tax 13 Return, or (B) has any liability for the Taxes of any Person (other than the Company or its Subsidiaries) under Treasury Regulations Section 1.1502-6 (or any comparable provision of Law). (m) None of the Company or its Subsidiaries has constituted either a "distributing corporation" or a "controlled corporation" (within the meaning of Section 355(a)(1)(A) of the Code) in a distribution of stock qualifying for tax-free treatment under Section 355 of the Code (A) in the two years prior to the date of this Agreement or (B) in a distribution that might otherwise constitute part of a "plan" or "series of related transactions" (within the meaning of Section 355(e) of the Code) in conjunction with the transactions contemplated by this Agreement. (n) To the Company's Knowledge, none of the Company or its Subsidiaries has engaged in any material "intercompany transactions" in respect of which gain was and continues to be deferred pursuant to Treasury Regulation Section 1.1502-13 or any predecessor or successor thereof or analogous or similar provision of Law. (o) No prior ownership change (within the meaning of Section 382 of the Code) has occurred (A) that would result in the imposition of a limitation upon the future deductibility of any Tax basis or built-in deduction item of the Company or its Subsidiaries, or (B) that resulted in a readjustment of the Tax basis of the assets of the Company or its Subsidiaries under Section 56(g)(4)(G) of the Code. SECTION 3.13 Employee Plans; Labor Matters. (a) Schedule 3.13 sets forth (i) all "employee benefit plans," as defined in Section 3(3) of the Employee Retirement Income Security Act of 1974, as amended ("ERISA"), and all other employee benefit arrangements or payroll practices, including, without limitation, bonus plans, employment, consulting or other compensation agreements, incentive, equity or equity-based compensation, or deferred compensation arrangements, change in control, termination or severance plans or arrangements, stock purchase, severance pay, sick leave, vacation pay, salary continuation for disability, hospitalization, medical insurance, life insurance and scholarship plans and programs maintained by the Company or any of its Subsidiaries or to which the Company or any of its Subsidiaries contributed or is obligated to contribute thereunder for current or former employees of the Company or its Subsidiaries (the "Employees") (the "Company Plans"), and (ii) all "employee pension plans," as defined in Section 3(2) of ERISA, subject to Title IV of ERISA or Section 412 of the Code, maintained by the Company, any of its Subsidiaries or any of their respective Affiliates and any trade or business (whether or not incorporated) which is or has ever been under common control, or which is or has ever been treated as a single employer, with any of them under Section 414(b), (c), (m) or (o) of the Code ("ERISA Affiliate") or to which the Company, any of its Subsidiaries or any ERISA Affiliate contributed or has ever been obligated to contribute thereunder (the "Title IV Plans"). Schedule 3.13 separately sets forth each Company Plan or Title IV Plan which is a multiemployer plan, as defined in Section 3(37) of ERISA ("Multiemployer Plan"), or is or has been subject to Sections 4063 or 4064 of ERISA ("Multiple Employer Plans"). 14 (b) True, correct and complete copies of the following documents, with respect to each of the Company Plans (other than a Multiemployer Plan), have been made available or delivered to the Investors by the Company, to the extent applicable: (i) any plans, all amendments thereto and related trust documents, and amendments thereto; (ii) the most recent Forms 5500 and all schedules thereto and the most recent actuarial report, if any; (iii) the most recent IRS determination letter; (iv) summary plan descriptions; (v) written communications to employees relating to the Company Plans; and (vi) written descriptions of all non-written agreements relating to the Company Plans. (c) The Company Plans have been maintained, in all material respects, in accordance with their terms and with all provisions of ERISA, the Code (including rules and regulations thereunder) and other applicable federal and state laws and regulations, and none of the Company, its Subsidiaries nor any "party in interest" or "disqualified person" with respect to the Company Plans has engaged in a non-exempt "prohibited transaction" within the meaning of Section 4975 of the Code or Section 406 of ERISA. No fiduciary has any liability for breach of fiduciary duty or any other failure to act or comply in connection with the administration or investment of the assets of any Company Plan. (d) The Company Plans intended to qualify under Section 401 of the Code are so qualified and the trusts maintained pursuant thereto are exempt from federal income taxation under Section 501 of the Code, and nothing has occurred with respect to the operation of the Company Plans which could cause the loss of such qualification or exemption or the imposition of any liability, penalty or tax under ERISA or the Code. (e) None of the Company, its Subsidiaries nor any ERISA Affiliate has withdrawn in a complete or partial withdrawal from any Multiemployer Plan prior to the Closing Date, nor has any of them incurred any liability due to the termination or reorganization of a Multiemployer Plan. (f) All contributions (including all employer contributions and employee salary reduction contributions) required to have been made under any of the Company Plans or Title IV Plans or by Law (without regard to any waivers granted under Section 412 of the Code), to any funds or trusts established thereunder or in connection therewith have been made by the due date thereof (including any valid extension), and all contributions for any period ending on or before the Closing Date which are not yet due will have been paid or accrued on its financial statements on or prior to the Closing Date. No accumulated funding deficiencies exist in any of the Company Plans or Title IV Plans subject to Section 412 of the Code. (g) There is no "amount of unfunded benefit liabilities" as defined in Section 4001(a)(18) of ERISA in any of the respective Title IV Plans. Each of the respective Title IV Plans are fully funded in accordance with the actuarial assumptions used by the Pension Benefit Guaranty Corporation ("PBGC") to determine the level of funding required in the event of the termination of such Title IV Plan and the "benefit liabilities" as defined in Section 4001(a)(16) of ERISA of such Title IV Plan using such PBGC assumptions do not exceed the assets of such Title IV Plan. 15 (h) There has been no "reportable event" as that term is defined in Section 4043 of ERISA and the regulations thereunder with respect to the Title IV Plans which would require the giving of notice or any event requiring disclosure under Section 4041(c)(3)(C) or 4063(a) of ERISA. (i) None of the Company, its Subsidiaries nor any ERISA Affiliate has terminated any Title IV Plan, or incurred any outstanding liability under Section 4062 of ERISA to the PBGC, or to a trustee appointed under Section 4042 of ERISA. All premiums due the PBGC with respect to the Title IV Plans have been paid. (j) None of the Company, its Subsidiaries nor any ERISA Affiliate or any organization to which the Company or any of its Subsidiaries is a successor or parent corporation, within the meaning of Section 4069(b) of ERISA, has engaged in any transaction, within the meaning of Section 4069 of ERISA. (k) There is no material violation of ERISA or the Code with respect to the filing of applicable reports, documents and notices regarding the Company Plans with the Secretary of Labor and the Secretary of the Treasury or the furnishing of such documents to the participants or beneficiaries of the Company Plans. (l) There are no pending actions, claims or lawsuits which have been asserted or instituted against the Company Plans, the assets of any of the trusts under such plans or the plan sponsor or the plan administrator, or against any fiduciary of the Company Plans with respect to the operation of such plans (other than routine benefit claims), nor does the Company have Knowledge of facts which could form the basis for any such claim or lawsuit. (m) All amendments and actions required to bring the Company Plans into conformity in all material respects with all of the applicable provisions of the Code, ERISA and other applicable laws have been made or taken except to the extent that such amendments or actions are not required by law to be made or taken until a date after the Closing Date. (n) Any bonding required with respect to the Company Plans in accordance with applicable provisions of ERISA has been obtained and is in full force and effect. (o) Except as set forth on Schedule 3.13, none of the Company Plans provide for post-employment life or health insurance, benefits or coverage for any participant or any beneficiary of a participant, except as may be required under the Consolidated Omnibus Budget Reconciliation Act of 1985, as amended ("COBRA"), and at the expense of the participant or the participant's beneficiary. Each of the Company, its Subsidiaries and any ERISA Affiliate which maintains a "group health plan" within the meaning Section 5000(b)(1) of the Code has complied with the notice and continuation requirements of Section 4980B of the Code, COBRA, Part 6 of Subtitle B of Title I of ERISA and the regulations thereunder. 16 (p) No liability under any Company Plan or Title IV Plan has been funded nor had any such obligation been satisfied with the purchase of a contract from an insurance company that is not rated A- by Standard & Poor's Corporation and the equivalent by each other nationally recognized rating agency. (q) Except as set forth on Schedule 3.13, neither the execution and delivery of this Agreement nor the consummation of the Transactions will (i) result in any payment becoming due to any Employee, (ii) increase any benefits otherwise payable under any Contract with an employee, Company Plan or Title IV Plan or (iii) result in the acceleration of the time of payment or vesting of any such benefits under any such plan or Contract with any employee or employees. (r) Neither the Company nor any of its Subsidiaries has any contract, plan or commitment, whether legally binding or not, to create any additional Company Plan or to modify any existing Company Plan. (s) No stock or other security issued by the Company or any of its Subsidiaries forms or has formed a material part of the assets of any Company Plan. (t) With respect to any period for which any contribution to or in respect of any Company Plan (including workers compensation) is due and owing, the Company and its Subsidiaries has made due and sufficient current accruals for such contributions and other payments in accordance with GAAP, and such current accruals through December 31, 2001, are duly and fully provided for in accordance with GAAP in the Company's audited balance sheet for the period then ended. (u) With respect to each Company Plan maintained primarily for the benefit of Employees outside of the United States (each, a "Foreign Plan"): (i) all employer and employee contributions required by Law or by the terms of such Foreign Plan have been made, or, if applicable, accrued in accordance with normal accounting practices; (ii) the fair market value of the assets of each funded Foreign Plan, the liability of each insurer for any Foreign Plan funded through insurance or the book reserve established for any Foreign Plan, together with any accrued contributions, is sufficient to procure or provide for the accrued benefit obligations, as of the Closing Date, with respect to all current or former participants in such plan according to the actuarial assumptions and valuations most recently used to determine employer contributions to such Foreign Plan, and no transaction contemplated by this Agreement shall cause such assets or insurance obligations to be less than such benefit obligations; and (iii) each Foreign Plan required to be registered has been registered and has been maintained in good standing with the applicable Governmental Authorities. 17 (v) Except as set forth on Schedule 3.13(v), (i) none of the Employees is represented in his or her capacity as an employee of the Company or any of its Subsidiaries by any labor organization; (ii) neither the Company nor any of its Subsidiaries has recognized any labor organization nor has any labor organization been elected as the collective bargaining agent of any Employees, nor has the Company or any of its Subsidiaries entered into any collective bargaining agreement or union contract recognizing any labor organization as the bargaining agent of any Employees; (iii) there is no union organization activity involving any of the Employees, pending, or to the Company's Knowledge, threatened, nor has there ever been union representation involving any of the Employees while employed by the Company; (iv) there is no picketing, pending or, to the Knowledge of the Company, threatened, and there are no strikes, slowdowns, work stoppages, other job actions, lockouts, arbitrations, grievances or other labor disputes involving any of the Employees, pending or threatened; (v) there are no complaints, charges or claims against the Company or any of its Subsidiaries pending or, to any of their Knowledge, threatened which could be brought or filed, with any Governmental Authority based on, arising out of, in connection with, or otherwise relating to the employment or termination of employment or failure to employ by the Company or any of its Subsidiaries, of any individual; (vi) the Company and each of its Subsidiaries is in compliance with all Laws relating to the employment of labor, including all such Laws relating to wages, hours, the Worker Adjustment and Retraining Notification Act and any similar state or local "mass layoff" or "plant closing" law ("WARN"), collective bargaining, discrimination, civil rights, safety and health, workers' compensation and the collection and payment of withholding and/or social security taxes and any similar tax except for immaterial non-compliance; and (vii) there has been no "mass layoff" or "plant closing" as defined by WARN with respect to the Company or any of its Subsidiaries within the previous six (6) months. SECTION 3.14 Environmental Matters. (a) For purposes of this Agreement: (i) "Environmental Costs and Liabilities" means any and all losses, liabilities, obligations, damages (including compensatory, punitive and consequential damages), fines, penalties, judgments, costs and expenses (including, without limitation, fees, disbursements and expenses of legal counsel, experts, engineers and consultants and the costs of investigation and feasibility studies and clean up, remove, treat, or in any other way address remediation or monitoring of any Hazardous Materials (as hereinafter defined)) arising from, under or pursuant to any Environmental Law (as hereinafter defined); (ii) "Environmental Law" means any applicable federal, state, local or foreign Law (including common Law), statute, treaty, rule, regulation, order, ordinance, decree, injunction, judgment or other legal requirement of any Governmental Authority relating to the protection of natural resources, the environment and public and employee health and safety or pollution or the release or exposure to Hazardous Materials (as hereinafter defined) and shall include, without limitation, the Comprehensive Environmental Response, Compensation, and Liability Act ("CERCLA") (42 U.S.C.(S) 9601 18 et seq.), the Hazardous Materials Transportation Act (49 U.S.C.(S) 1801 et seq.), the Resource Conservation and Recovery Act (42 U.S.C.(S) 6901 et seq.), the Clean Water Act (33 U.S.C.(S) 1251 et seq.), the Clean Air Act (33 U.S.C.(S) 7401 et seq.), the Toxic Substances Control Act (15 U.S.C.(S) 7401 et seq.), the Federal Insecticide, Fungicide, and Rodenticide Act (7 U.S.C.(S) 136 et seq.), and the Occupational Safety and Health Act (29 U.S.C.(S) 651 et seq.) ("OSHA") (but only to the extent it regulates occupational exposure to Hazardous Materials), the Oil Pollution Act of 1990 (33 U.S.C.(S) 2701 et seq.) ("OPA 90") and the International Convention for the Prevention of Pollution from Ships ("MARPOL 73178"), and, in each case, the regulations promulgated pursuant thereto, and any such applicable state or local statutes, and the regulations promulgated pursuant thereto, as such Laws have been and may be amended or supplemented; (iii) "Hazardous Material" means any substance, material or waste which is characterized, classified or otherwise regulated as hazardous, restricted, dangerous or toxic or as a pollutant or contaminant or words of similar meaning or regulatory effect by any Governmental Authority or the United States, and includes, without limitation, petroleum, petroleum by-products and wastes, asbestos, urea, formaldehyde and polychlorinated biphenyls; (iv) "Release" means any release, spill, effluent, emission, leaking, pumping, pouring, dumping, emptying, injection, deposit, disposal, discharge, dispersal, leaching, or migration into the indoor or outdoor environment, or into or out of any property or asset (including any Vessel (as hereinafter defined)) owned, operated or leased by the Company or its Subsidiaries; and (v) "Remedial Action" means all actions, including, without limitation, any capital expenditures, required by a Governmental Authority or required under or taken pursuant to any Environmental Law, or voluntarily undertaken to (A) clean up, remove, investigate, remediate, treat, or in any other way, ameliorate, address or monitor any Hazardous Materials in the environment; (B) prevent the Release or threat of Release, or minimize the further Release of any Hazardous Material so it does not endanger or threaten to endanger the public or the environment; (C) perform pre-remedial studies and investigations or post-remedial monitoring and care pertaining or relating to a Release; or (D) bring the applicable party into compliance with any Environmental Law. (b) Except as set forth in Schedule 3.14: (i) The operations of the Company and its Subsidiaries have been, for the past five years, and are in compliance with all Environmental Laws, except for such matters the occurrence of which either individually or in the aggregate would not reasonably be expected to result in the Company and its Subsidiaries incurring Environmental Costs and Liabilities in excess of $500,000 individually or in the aggregate, and the Company is not aware of any facts, circumstances or 19 conditions, which, without significant capital expenditures, would prevent compliance with Environmental Laws or Environmental Permits (as hereinafter defined) in the future; (ii) The Company and its Subsidiaries have obtained, and will maintain through the Closing, all permits, authorizations, licenses or similar approvals required under applicable Environmental Laws (collectively, Environmental Permits") for the continued operations of their respective businesses, except where the failure to obtain or maintain such items would not reasonably be expected to result in the Company and its Subsidiaries incurring Environmental Costs and Liabilities in excess of $500,000 individually or in the aggregate; (iii) The Company and its Subsidiaries are not subject to any outstanding written orders or material contracts with any Governmental Entity or other Person respecting (A) Environmental Laws, (B) Remedial Action or (C) any Release or threatened Release of a Hazardous Material; (iv) The Company and its Subsidiaries have not received any written communication alleging, with respect to any such party, the violation of or liability under any Environmental Law except for such matters the occurrence of which either individually or in the aggregate would not reasonably be expected to result in the Company and its Subsidiaries incurring Environmental Costs and Liabilities in excess of $500,000, and, to its Knowledge, the Company is not aware of any Remedial Action obligations that it or its Subsidiaries has in connection with the Release of any Hazardous Material as a result of either of their operations that would be reasonably expected to result in the Company and its Subsidiaries incurring Environmental Costs and Liabilities in excess of $500,000, individually or in the aggregate; (v) To the Knowledge of the Company, the ownership or operation by the Company or its Subsidiaries of any Subsidiary and their respective operations or current or former real estate or facilities that could not reasonably be expected to result in the Company and its Subsidiaries incurring Environmental Costs and Liabilities in excess of $500,000, individually or in the aggregate; (vi) The operations of the Company or its Subsidiaries do not require a permit under 40 C.F.R. Parts 260-270 (in effect as of the date of this Agreement) or any state equivalent; (vii) There is not now, nor to the Company's Knowledge, has there been in the past, on or in any property of the Company or its Subsidiaries any of the following: (A) any underground storage tanks or surface impoundments owned or operated by either of such party containing Hazardous Materials, (B) any asbestos-containing materials in a disturbed, exposed condition such that it requires abatement pursuant to Environmental Laws, or (C) any polychlorinated biphenyls 20 present in equipment owned or operated by the Company or any Subsidiary that requires the performance of Remedial Activity under Environmental Laws; (viii) No judicial or administrative proceedings are pending or, to the Company's Knowledge, threatened against the Company or any of its Subsidiaries alleging the violation of or seeking to impose liability pursuant to any Environmental Law and there are no investigations pending or, to the Company's Knowledge, threatened against the Company or any of its Subsidiaries under Environmental Laws; and (ix) The Company and its Subsidiaries have obtained, and will maintain through the Closing, all insurance and other contracts for the demonstration of financial responsibility required under applicable Environmental Laws for the continued operation of their respective businesses, and the Company is not aware of any facts, circumstances or conditions that would result in loss, cancellation or non-renewal of such insurance or other contracts in the foreseeable future. (c) None of the exceptions set forth on Schedule 3.14 are reasonably likely to result in the Company and its Subsidiaries incurring Environmental Costs and Liabilities in excess of $500,000 individually or in the aggregate. (d) The Company has provided the Investors with copies of all environmentally related assessments, audits, investigations, sampling or similar reports which, to the Knowledge of the Company after reasonable inquiry, are in its possession, custody or control and, in each instance, relating to the Company or its Subsidiaries or any real property currently or formerly owned, operated or leased by or for the Company and its Subsidiaries, and any assets (including Vessels) currently owned, operated or leased by or for the Company and its Subsidiaries. SECTION 3.15 Real Property. Schedule 3.15 sets forth all of the real property owned in fee by the Company or any of its Subsidiaries and all real property that the Company or any of its Subsidiaries uses or occupies or has the right to use or occupy, now or in the future, pursuant to any lease, sublease or other agreement. Each of the Company and its Subsidiaries has good and marketable title to each parcel of real property owned by it, and each of the Company and its Subsidiaries has a good and valid leasehold interest in each parcel of real property leased by it, in each case, free and clear of all Liens, except (i) Taxes and general and special assessments not in default and payable without penalty and interest, and (ii) other liens, mortgages, pledges, encumbrances and security interests which do not materially interfere with the Company's or any of its Subsidiaries' use and enjoyment of such real property or materially detract from or diminish the value thereof. SECTION 3.16 Absence of Questionable Payments. Neither the Company nor any of its Subsidiaries nor, to the Company's Knowledge, any director, officer, agent, employee or other person acting on behalf of the Company or any of its Subsidiaries, has used any corporate or other funds for 21 unlawful contributions, payments, gifts, or entertainment, or made any unlawful expenditures relating to political activity to government officials or others or established or maintained any unlawful or unrecorded funds in violation of Section 30A of the Exchange Act. Neither the Company nor any of its Subsidiaries nor, to the Company's Knowledge, any director, officer, agent, employee or other person acting on behalf of the Company or any of its Subsidiaries, has accepted or received any unlawful contributions, payments, gifts, or expenditures. The Company is in compliance in all material respects with the provisions of Section 13(b) of the Exchange Act. SECTION 3.17 Material Contracts. Schedule 3.17 sets forth a list of all Material Contracts as of the date of this Agreement. The Company has heretofore made available to the Investors true, correct and complete copies of all written or oral (in the case of oral agreements or understandings, the Company has provided written summaries thereof to the Investors) contracts and agreements (and all amendments, modifications and supplements thereto and all side letters affecting the obligations of any party thereunder) to which the Company or any of its Subsidiaries is a party or by which any of its properties or assets are bound that are material to the business, properties or assets of the Company and its Subsidiaries, including, without limitation, (i) Contracts or arrangements that purport to limit, curtail or restrict the ability of the Company or any of its Subsidiaries to compete in any geographic area or line of business, (ii) Contracts or arrangements, including charters or similar agreements with respect to Vessels (as hereinafter defined), under which the Company or any of its Subsidiaries has potential revenues, benefits liabilities or obligations in excess of $250,000, other than Gulf Offshore Contracts, (iii) Contracts or arrangements that are not terminable by the Company or such Subsidiary without penalty on less than sixty (60) days' notice, (iv) Contracts or arrangements that would be required to be filed as an exhibit to a Form 10-K filed by the Company with the Commission on the date hereof, (v) any employment, severance, product design or development, personal services, consulting, non-competition or indemnification Contracts, (vi) Contracts or arrangements granting a right of first refusal or first negotiation, (vii) partnership or joint venture Contracts, (viii) Gulf Offshore Contracts that have a term in excess of one-year, (ix) Contracts or arrangements with any Governmental Authority, (x) loan or credit agreements, mortgages, indentures or other agreements or instruments evidencing indebtedness for borrowed money by the Company or any of its Subsidiaries or any such Contract pursuant to which indebtedness for borrowed money may be incurred, or any guaranty or suretyship Contract or Contracts pursuant to which a Lien is granted, (xi) Contracts granting registration rights, (xii) any lease, sublease or other Contract, pursuant to which the Company or any of its Subsidiaries uses or occupies or has the right to use or occupy, now or in the future, any real property and pursuant to which the Company or any Subsidiary has potential liabilities or obligations in excess of $250,000, and (xiii) commitments and Contracts to enter into any of the foregoing (collectively, together with any such Contracts entered into in compliance with Section 5.01 hereof, the "Material Contracts"). Each of the Material Contracts constitutes the valid and legally binding obligation of the Company or its Subsidiaries and, to the Company's Knowledge, the other parties thereto, enforceable in accordance with its terms (except as enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium, fraudulent transfer and similar Laws of general applicability relating to or 22 affecting creditors' rights or by general equity principles), and is in full force and effect. To the Company's Knowledge, there is no material default under any Material Contract either by the Company or any of its Subsidiaries or by any other party thereto, and no event has occurred that with the lapse of time or the giving of notice or both would constitute a material default thereunder by the Company or any of its Subsidiaries or any other party. Except as set forth on Schedule 3.17, no party to any Material Contract has given written notice to the Company or any of its Subsidiaries of, or made a written claim against the Company or any of its Subsidiaries with respect to, any material breach or default thereunder. SECTION 3.18 Insurance. Schedule 3.18 sets forth a list of all insurance policies (including information on the premiums payable in connection therewith and the scope and amount of the coverage provided thereunder) maintained by the Company or any of its Subsidiaries; such policies have been issued by insurers, which, to the Company's Knowledge, are reputable and financially sound and provide coverage for the operations conducted by the Company and its Subsidiaries of a scope and coverage consistent with customary industry practice and in compliance with applicable Law. No notice of cancellation or termination has been received with respect to any such policy. Except as set forth on Schedule 3.18, neither the Company nor any of its Subsidiaries has been refused any insurance with respect to any material assets or operations of the Company and its Subsidiaries, nor has any of its coverage been limited in any material respect by any insurance carrier to which it has applied for any such insurance or with which it has carried insurance during the last eighteen months. Except as set forth on Schedule 3.18, neither the Company nor any of its Subsidiaries is and has not been since December 15, 1999 a member of any protection or indemnity club. SECTION 3.19 Assets. Except as set forth on Schedule 3.19, the Company and its Subsidiaries own, or have valid leasehold interests in, free and clear of all Liens, all material properties or assets used in the conduct of their businesses. Except as set forth on Schedule 3.19, all of the material tangible assets of the Company and its Subsidiaries are currently in good operating condition, ordinary wear and tear excepted, and, except for Laid-up Vessels (as hereinafter defined) listed on Schedule 3.21, are being used in the business of the Company and its Subsidiaries for the purposes for which they were designed. SECTION 3.20 Transactions with Related Parties. To the Knowledge of the Company, no officer or director of the Company or any of its Subsidiaries possesses, directly or indirectly, any financial interest in, or is a director, officer or employee of, any corporation or business organization that is a supplier, customer, lessor, lessee or competitor or potential competitor of the Company or any of its Subsidiaries or that has entered into any Contract with the Company or any of its Subsidiaries. Schedule 3.20 lists all transactions since December 15, 1999, between the Company or any of its Subsidiaries, on the one hand, and any director or officer of the Company or any of its Subsidiaries or any Affiliate of such director or officer, on the other hand, including (a) any debtor or creditor relationship, (b) any transfer or lease of real or personal property or charter or management of any Vessel, and (c) purchases or sales of products or services. 23 SECTION 3.21 Maritime Matters. The name, official number, registered owner, and jurisdiction of registration of each vessel owned, leased, chartered or operated by the Company or any of its Subsidiaries ("Vessel"), including Vessels that are not currently in operation ("Laid-up Vessels") is set forth, as of the date hereof, on Schedule 3.21 hereto. Except as set forth on such Schedule, each Vessel is operated in material compliance with all applicable maritime Laws, including, without limitation, with respect to each Vessel operated in the coastwise trade of the United States of America, the Shipping Act, 1916, and the Merchant Marine Act, 1920, each as amended and in effect, and the regulations promulgated thereunder, provided that, with respect to the effect of the Stock Purchase on the Company's qualification to operate vessels in the coastwise trade of the United States of America, the Company will rely upon the Ruling. Each Vessel that is designated as a Laid-up Vessel on Schedule 3.21 is maintained in accordance with ordinary and reasonable commercial standards for Laid-up Vessels. Each Vessel is maintained and (other than Laid-up Vessels) operated in material compliance with all applicable Environmental Laws. The Company and its Subsidiaries are qualified to own and operate the Vessels under all applicable Laws (including the Laws of each Vessel's flag state). Except as permitted by the Laws of the flag state, each Vessel is classified in the highest class available for vessels of its age and type with the American Bureau of Shipping, Inc. or another reputable internationally recognized classification society, free of any overdue conditions or recommendations, other than such conditions or recommendations which remediation or implementation the classification society or flag state have agreed to postpone, and which if not cured by the owner thereof would not materially diminish such Vessel's value. With respect to Vessels not required by the Laws of the flag state to be classed, such Vessels are covered by valid certificates of inspection or the equivalent, except with respect to any Laid-up Vessel with expired certificates, which Vessel will be provided with a new certificate of inspection or an equivalent instrument before its return to operations by the Company or any of its Subsidiaries. SECTION 3.22 Suppliers and Customers. To the Company's Knowledge, (a) no supplier providing products, materials or services to the Company or any of its Subsidiaries intends to cease selling such products, materials or services to the Company or its Subsidiaries or to limit or reduce such sales or alter the terms or conditions of such sales and (b) no customer of the Company or any of its Subsidiaries intends to terminate, limit or reduce its or their business relations with the Company or any of its Subsidiaries. SECTION 3.23 Brokers. Except as disclosed on Schedule 3.23 (for which the Company shall be solely liable), no agent, broker, person or firm acting, directly or indirectly, on behalf of the Company is, or will be, entitled to any commission or broker's or finder's fees from the Company or the Investors in connection with any of the Transactions. SECTION 3.24 Fairness Opinion. The Board of Directors has received the opinion of RBC Dain Rauscher Inc. that the Stock Purchase purchase price of $8.00 (less applicable transaction fees and expenses) per Share is fair, from a financial point of view, to the Company. 24 SECTION 3.25 Foreign Ownership. As of the date hereof, immediately prior to, and, assuming the Ruling has been obtained and the Investors have complied with any requirements thereunder, immediately following the Closing, to the Company's Knowledge, "Non-Citizens" (as defined in the Company's Certificate of Incorporation) beneficially own (as determined pursuant to Rule 13d-3 under the Exchange Act) not more than 24.9% of the outstanding shares of Common Stock. SECTION 3.26 Ruling. All information with respect to the Company submitted by or on behalf of the Company to the United States Coast Guard in support of the Ruling is, and at the time of submission and issuance will be, true and correct in all material respects. ARTICLE IV REPRESENTATIONS AND WARRANTIES OF THE INVESTORS Each Investor severally as to itself only, and not jointly, hereby represents and warrants to the Company on the date hereof and as of the Closing Date, as follows: SECTION 4.01 Organization; Authorization; Enforceability. Such Investor is 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 its properties and assets and to carry on its business as it is now being conducted and as currently proposed to be conducted. Such Investor has the power to execute, deliver and perform its obligations under this Agreement and has taken all necessary action to authorize the execution, delivery and performance by it of this Agreement and to consummate the Transactions. No other proceedings on the part of such Investor are necessary for such authorization, execution, delivery and consummation. Such Investor has duly executed and delivered this Agreement. Assuming the execution thereof by the other parties thereto, this Agreement constitutes a legal, valid and binding obligation of such Investor, enforceable against such Investor in accordance with its terms (except as enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium, fraudulent transfer and similar Laws of general applicability relating to or affecting creditors' rights or by general equity principles). SECTION 4.02 Private Placement. Such Investor (a) understands that the offering and sale of the Shares by the Company is intended to be exempt from registration under the Securities Act pursuant to Section 4(2) thereof; (b) is an "accredited investor," as such term is defined in Rule 501(a) of Regulation D under the Securities Act; (c) is acquiring the Shares for its own account (or for accounts over which it exercises investment authority), for investment and not with a view to the resale or distribution thereof in violation of any applicable securities Law; (d) understands that the Shares will be issued in transactions exempt from the registration or qualification requirements of the Securities Act and applicable state securities Laws, and that such securities may not be sold unless the disposition thereof is registered or qualified under the Securities Act and such Laws or is exempt from such registration or qualification; and (e) has such knowledge and experience in business and financial matters so as to enable it to understand and evaluate the 25 risks of and form an investment decision with respect to its investment in the Shares. SECTION 4.03 No Violation; Consents. Except for (a) filings by such Investor, if any, required by the HSR Act and the expiration or termination of the applicable waiting period with respect thereto, (b) applicable filings, if any, with the Commission pursuant to the Exchange Act, and (c) the Ruling, no consent, authorization or order of, or filing or registration with, any Governmental Authority is required to be obtained or made by such Investor for the execution, delivery and performance of the Transaction Documents or the consummation of the Transactions. Neither the execution, delivery and performance of the Transaction Documents by such Investor nor the consummation by such Investor will conflict with or result in any breach of any provision of the organizational documents of such Investor. SECTION 4.04 Financing. Such Investor will have on the Closing Date sufficient funds to purchase the Shares set forth with respect to such Investor on Schedule 1. SECTION 4.05 Citizenship. All information with respect to such Investor submitted by or on behalf of such Investor to the United States Coast Guard in support of the Ruling is, and at the time of submission and issuance will be, true and correct in all material respects. ARTICLE V COVENANTS SECTION 5.01 Conduct of Business Pending the Closing. Except as contemplated by this Agreement and except for the consummation of the transactions previously disclosed in writing to the Investors on the terms specified therein ("Permitted Transactions"), during the period from the date hereof to the Closing, the Company will, and will cause each of its Subsidiaries to, conduct its operations in the ordinary and usual course of business consistent with past practice and, to the extent consistent therewith, with no less diligence and effort than would be applied in the absence of this Agreement, seek to preserve intact its current business organizations, seek to keep available the service of its current officers and employees and seek to preserve its relationships with customers, suppliers and others having business dealings with it to the end that goodwill and ongoing businesses shall be unimpaired at the Closing. Without limiting the generality of the foregoing, and except as otherwise expressly provided in this Agreement, prior to the Closing, neither the Company nor any of its Subsidiaries shall, without the prior written consent of the Investors: (a) amend its certificate of incorporation or bylaws (or other similar governing instrument); 26 (b) authorize for issuance, issue, sell, deliver or agree or commit to issue, sell or deliver (whether through the issuance or granting of options, warrants, commitments, subscriptions, rights to purchase or otherwise) any stock of any class or other equity interest or any equity equivalents (including, without limitation, any stock options or stock appreciation rights), or any other securities convertible into or exchangeable for any stock, other equity interest or equity equivalent, except for the issuance or sale of Common Stock pursuant to the exercise of currently outstanding warrants and stock options disclosed on Schedule 3.02(a); (c) (i) split, combine or reclassify any shares of its capital stock; (ii) declare, set aside or pay any dividend or other distribution (whether in cash, stock or property or any combination thereof) in respect of its capital stock (other than dividends or distributions made to the Company); (iii) make any other actual, constructive or deemed distribution in respect of any shares of its capital stock or otherwise make any payments to stockholders in their capacity as such (other than dividends or distributions made to the Company); (iv) redeem, repurchase or otherwise acquire any of its securities or any securities of any of its Subsidiaries; or (v) amend the terms of any of its outstanding securities such as would increase its obligations thereunder; (d) adopt a plan of complete or partial liquidation or dissolution except as set forth on Schedule 5.01(d); (e) become a party to any merger (other than a merger among wholly owned Subsidiaries of the Company and no other Persons), consolidation, combination, recapitalization, reorganization or restructuring; (f) (i) incur or assume any long-term or short-term debt or issue any debt securities, except for borrowings in the ordinary and usual course of business consistent with past practice under the Existing Credit Facility; (ii) assume, guarantee, endorse or otherwise become liable or responsible (whether directly, contingently or otherwise) for the obligations of any other Person, except in the ordinary and usual course of business consistent with past practice and in amounts not material to the Company and its Subsidiaries, taken as a whole, and except for guarantees of obligations of the Company or wholly-owned Subsidiaries of the Company; (iii) make any loans, advances or capital contributions to, or investments in, any other Person (other than to wholly-owned Subsidiaries of the Company); (iv) pledge or otherwise encumber shares of capital stock of the Company or its Subsidiaries; or (v) mortgage or pledge any of its material assets, tangible or intangible, or create or suffer to exist any Lien thereupon; (g) except as may be required by Law, enter into, adopt or amend or terminate any bonus, profit sharing, compensation, severance, termination, stock option, stock appreciation right, restricted stock, performance unit, stock equivalent, stock purchase agreement, pension, retirement, deferred compensation, employment, severance or other employee benefit agreement, trust, plan, fund, award or other arrangement for the benefit or welfare of any director, officer or employee in any manner, or (except for normal increases in the ordinary and usual course of business consistent with past practice that, in the aggregate, do not result in a material increase in benefits or compensation expense to the Company) increase in any manner the 27 compensation or fringe benefits of any director, officer or employee or pay any benefit not required by any plan and arrangement as in effect as of the date hereof (including, without limitation, the granting of stock appreciation rights or performance units) except as set forth on Schedule 5.01(g); (h) acquire, sell, lease or dispose of any assets having an initial cost or fair market value in excess of $500,000 or any assets which individually or in the aggregate are material to the Company and its Subsidiaries taken as a whole; (i) except as may be required as a result of a change in Law or in GAAP, change any of the accounting principles or practices used by it; (j) revalue in any material respect any of its assets, including, without limitation, writing down the value of inventory or writing-off notes or accounts receivable other than in the ordinary and usual course of business consistent with past practice or as required by GAAP; (k) (i) acquire (by merger, consolidation, or acquisition of stock or assets) any Person or division thereof or any equity interest therein; (ii) enter into any Contract, other than in the ordinary and usual course of business consistent with past practice, or amend in any material respect any of the Material Contracts; (iii) authorize any new capital expenditure or expenditures which individually is in excess of $250,000 or which exceed, in the aggregate, $500,000, other than capital expenditures that are currently budgeted in the Company's annual budget, a copy of which has been previously provided to the Investors; or (iv) enter into or amend any Contract providing for the taking of any action that would be prohibited hereunder; (l) depart from any normal drydock and maintenance practices or discontinue replacement of spares in operating its fleet; (m) defer any scheduled maintenance on any Vessels except as may be contemplated in the Company's annual budget, as modified to the date hereof; (n) make or revoke any Tax election, or settle or compromise any Tax liability, or change (or make a request to any taxing authority to change) any aspect of its method of accounting for Tax purposes; (o) pay, discharge or satisfy any material claims, liabilities or obligations (absolute, accrued, asserted or unasserted, contingent or otherwise), other than the payment, discharge or satisfaction in the ordinary and usual course of business consistent with past practice of liabilities reflected or reserved against in, the consolidated financial statements of the Company and its Subsidiaries or incurred in the ordinary and usual course of business consistent with past practice, or amend or waive any material right, or the benefits of any confidentiality, standstill or similar agreement to which the Company or any of its Subsidiaries is a party; 28 (p) settle or compromise any pending or threatened suit, action or material claim or any claim relating to the Transactions; (q) enter into any Contract or arrangement that limits or otherwise restricts the Company or any of its Subsidiaries (or that could, after the Closing, limit or restrict the Company or any of its Affiliates) from engaging or competing in any line of business or in any geographic area; (r) change or modify its credit, collection or payment policies, procedures or practices, including acceleration of collections or receivables (whether or not past due) or fail to pay or delay payment of payables or other liabilities; or (s) take, propose to take, or agree in writing or otherwise to take, any of the actions described in Sections 5.1(a) through 5.1(r) or any action which would make any of the representations or warranties of the Company contained in this Agreement (i) which are qualified as to materiality untrue or incorrect or (ii) which are not so qualified untrue or incorrect in any material respect. In addition, except in circumstances in which the duties of the parties hereto under this Agreement are specifically described herein, the Company and each of the Investors shall use its respective commercially reasonable efforts to cause all conditions contained in, in the case of the Company, Sections 6.02 and 6.03, and in the case of the Investors, Sections 6.01 and 6.03(b), hereof to be satisfied at the earliest practicable date. SECTION 5.02 Access. Between the date hereof and the Closing, the Company will give the Investors and their authorized representatives (including counsel, financial advisors and auditors) reasonable access during normal business hours to all employees, offices and facilities and to all books and records of the Company and its Subsidiaries, will permit the Investors to make such inspections as the Investors may reasonably require and will cause the Company's officers and those of its Subsidiaries to furnish the Investors with such financial and operating data and other information with respect to the business, properties and personnel of the Company and its Subsidiaries as the Investors may from time to time reasonably request. SECTION 5.03 Preparation of Proxy Statement; Stockholder Meeting. The Company shall, as promptly as practicable, prepare and file with the Commission a proxy statement (the "Proxy Statement") with respect to the stockholder approval of the Stock Purchase and the Charter Amendment. The Company shall cause the Proxy Statement and the accompanying solicitation of proxies to comply with applicable Law, including the Exchange Act, and any rule or listing requirement of any national stock exchange or Commission recognized trading market on which securities issued by the Company are listed or quoted. The Company shall provide the Investors and their counsel with (a) a reasonable opportunity to review and comment on any draft of the Proxy Statement or any amendment or supplement thereto prior to its filing with the Commission, and (b) copies of all such filings and all written comments (and details of all oral comments) received from the Commission with respect thereto promptly following 29 receipt thereof. If at any time prior to the Closing Date any event should occur which is required to be described in an amendment of, or a supplement to, the Proxy Statement, the Company shall promptly so advise the Investors and such event shall be so described, and such amendment or supplement (which the Investors shall have a reasonable opportunity to review prior to its filing) shall be promptly filed with the Commission and, to the extent required by applicable Law or any rule or listing requirement of any national stock exchange or Commission recognized trading market on which securities issued by the Company are listed or quoted, disseminated to the stockholders of the Company. The Company shall use its commercially reasonable efforts to cause such Proxy Statement to be mailed to its stockholders at the earliest practicable date. The Company shall take all lawful action to (i) cause a special meeting of its stockholders (the "Company Stockholder Meeting") to be duly called and held as soon as practicable after the date of this Agreement for the purpose of voting on the approval of the Stock Purchase and the Charter Amendment, and (ii) solicit proxies from its stockholders to obtain the Company Requisite Vote for the approval of the Stock Purchase and the Charter Amendment. The Board of Directors shall recommend that the Company's stockholders approve the Stock Purchase and the Charter Amendment, and the Board of Directors shall not withdraw, amend or modify, in a manner adverse to the Investors, such recommendation (or announce publicly its intention to do so) unless and until this Agreement shall have been terminated in accordance with its terms or unless the Board of Directors determines in good faith that it is required to do so in the exercise of its fiduciary duties after consulting with outside legal counsel; provided that in the event the Investors terminate this Agreement pursuant to Section 7.01(k) hereof, the Company pays the termination fee contemplated in Section 7.03. SECTION 5.04 Commercially Reasonable Efforts. Except in circumstances in which the duties of the parties hereto under this Agreement are specifically described herein, subject to applicable Law, each of the parties shall act in good faith and use commercially reasonable efforts to take, or cause to be taken, all actions, and to do, or cause to be done, all things necessary, proper or advisable to consummate the Transactions at the earliest practicable date. In furtherance and not in limitation of the foregoing, (a) to the extent required of a party hereto pursuant to the HSR Act, such party shall make an appropriate filing (together with the payment of any required fees) of a Notification and Report Form with respect to the Transactions as promptly as practicable (and in any event within ten (10) Business Days of the date hereof provided that all necessary information required from any other party for such filing is timely provided) and shall supply as promptly as practicable any additional information and documentary material that may be requested pursuant to the HSR Act and use its commercially reasonable efforts to take, or cause to be taken, all other actions consistent with this Section necessary to cause the expiration or termination of the applicable waiting periods under the HSR Act as soon as practicable and (b) except in circumstances in which the duties of the parties hereto under this Agreement are specifically described herein, the parties shall, and shall cause their respective Affiliates to use their respective commercially reasonable efforts to obtain all other consents, approvals, waivers, licenses, permits, authorizations, registrations, qualifications or other permissions by, and give all necessary notices to, and make all filings with and applications and submissions to, any other Governmental Authority or other Person required for such party to consummate the 30 Transactions as promptly as reasonably practicable. The parties shall each keep each other reasonably apprised of the status of material matters relating to the completion of the Transactions. Each of the Investors and the Company shall, in connection with the efforts referenced above in this Section to obtain all requisite approvals and authorizations for the Transactions, use its commercially reasonable efforts to cooperate in all respects with each other in connection with any filing or submission and in connection with any investigation or other inquiry, including any proceeding initiated by a private party. Except as expressly set forth elsewhere in this Agreement, including without limitation the obligation to pay required fees pursuant to the HSR Act as required by this Section and Section 5.11, under no circumstances shall the Investors be required to take any action that would materially and adversely affect the Investors, pay any amounts (other than the payment of routine and immaterial filing fees and expenses and fees of counsel), make any financial accommodations, dispose of any assets or agree to do any of the foregoing with respect to consents, approvals, waivers, licenses, permits, authorizations, registrations, qualifications or other permissions, filings, applications or submissions required to be obtained by the Company. Notwithstanding anything to the contrary contained herein, neither the Investors nor their Affiliates will be required or obligated to commence any litigation or divest or hold separate any business or assets in connection with the consummation of the transactions contemplated by this Agreement. SECTION 5.05 Listing of Shares. The Company shall use its commercially reasonable efforts to cause the Shares to be listed or otherwise eligible for listing and trading on the Nasdaq National Market System prior to the Closing Date. SECTION 5.06 Use of Proceeds. The Company shall use the proceeds from the Stock Purchase to repay obligations under its Existing Credit Facility or the Notes and, to the extent proceeds exceed such obligations, for working capital and general corporate purposes. SECTION 5.07 Board of Directors. In connection with the Company's efforts to cause the condition set forth in Section 6.02(f) hereof to be satisfied, the Company shall take such actions as may be required to cause the Company at Closing to (i) increase the size of the Board of Directors (and, to the extent requested by the Investors, committees), or exercise its commercially reasonable efforts to secure the resignations of such number of directors, or both, as is necessary to enable the Investors' designees to be appointed to, and constitute a majority of the members of, the Board of Directors (and, to the extent requested by the Investors, each committee thereof), and cause the Investors' designees (who shall be reasonably acceptable to the Company) to be so appointed and (ii) cause at least three incumbent independent directors (within the meaning of the Charter Amendment) of the Company, as designated by the Investors, to continue as members of the Board of Directors for an initial term of at least one year from the Closing, subject to the provisions of the Stockholders Agreement. The Investors shall advise the Company of its director designees within a reasonable time prior to the initial filing of a preliminary Proxy Statement by the Company as contemplated in Section 5.03. 31 SECTION 5.08 No Solicitation. (a) The Company shall not, directly or indirectly through any officer, director, employee, representative or agent of the Company or any of its Subsidiaries (including any investment banker, attorney or accountant retained by it or any of its Subsidiaries), (i) make any offer or proposal to any Person to, directly or indirectly, (A) sell, issue or otherwise transfer any capital stock (including, without limitation, by way of a tender offer) of the Company, (B) sell or otherwise transfer any material assets or properties of the Company or any of its Subsidiaries (other than Permitted Transactions on the terms previously disclosed in writing to the Investors) or (C) effect any recapitalization, refinancing, restructuring, merger, consolidation or other business combination involving the Company (any of the foregoing referred to herein as an "Alternative Transaction"), (ii) grant any waivers with respect to Section 203 of the DGCL to any third parties, (iii) solicit or encourage the initiation of (including by way of furnishing information) any inquiries or proposals regarding any Alternative Transaction (an "Acquisition Proposal") or (iii) have any discussion with or provide any non-public information or data to any third party that would encourage, facilitate or further an Acquisition Proposal, or engage in any negotiations concerning an Acquisition Proposal, or knowingly facilitate any effort or attempt to make or implement an Acquisition Proposal; provided that the Company may have discussions with and provide non-public information and data (but only to the extent that such information was previously provided to the Investors prior to the execution of this Agreement or is provided to the Investors concurrently therewith) to a third party that has made an unsolicited bona fide written Acquisition Proposal if, and only to the extent that (x) the Board of Directors determines in good faith (i) that such Acquisition Proposal would, if consummated, be reasonably likely to constitute a Superior Proposal (as hereinafter defined) and (ii) after consulting with outside legal counsel, that failing to take such action would constitute a breach of the fiduciary obligations of the Board of Directors under applicable Law and (y) prior to taking such action, the Company provides reasonable notice to the Investors (not later than 48 hours prior to taking any such action) to the effect that it is taking such action and receives from such Person an executed confidentiality/standstill agreement in reasonably customary form. (b) The Company shall notify the Investors orally and in writing promptly (but in no event later than 24 hours) after receipt of any Acquisition Proposal, and any modification of or amendment to any Acquisition Proposal, and any request for non-public information relating to the Company or any of its Subsidiaries in connection with an Acquisition Proposal or for access to the properties, books or records of the Company or any Subsidiary by any Person that informs the Board of Directors of the Company or such Subsidiary that it is considering making, or has made, an Acquisition Proposal. Such notice shall indicate the identity of the Person making the Acquisition Proposal or intending to make an Acquisition Proposal or requesting non-public information or access to the books and records of the Company, the material terms of any such Acquisition Proposal or modification or amendment to an Acquisition Proposal and copies of any written Acquisition Proposals or amendments or supplements thereto. The Company shall keep the Investors informed, on a current 32 basis, of any material changes in the status and any material changes or modifications in the material terms of any such Acquisition Proposal, indication or request. (c) The Company shall (and shall cause its representatives to) immediately cease and cause to be terminated any existing discussions or negotiations with any Persons (other than the Investors) conducted heretofore with respect to any of the foregoing. The Company agrees not to release any third party from the confidentiality and standstill provisions of any agreement to which the Company is a party. (d) The Board of Directors shall not approve or recommend or permit the Company or any of its Subsidiaries to enter into any Contract with respect to any Acquisition Proposal made by any Person other than the Investors. Notwithstanding the foregoing, (i) the Board of Directors may take and disclose to the Company's stockholders a position contemplated by Rule 14e-2(a) promulgated under the Exchange Act; and (ii) if the Board of Directors, after consulting with outside legal counsel, determines in good faith that failing to take such action would constitute a breach of the fiduciary obligations of the Board of Directors under applicable Law, the Board of Directors may approve or recommend an Acquisition Proposal or cause the Company to enter into a Contract with respect thereto, but in the case of clause (ii) only if (a) the Company provides written notice to the Investors (a "Notice of Superior Proposal"), which notice must be received by the Investors at least seven (7) Business Days (exclusive of the day of receipt by the Investors) prior to the time it intends to cause the Company to enter into such a Contract, advising the Investors in writing that the Board of Directors has received an Acquisition Proposal that it believes constitutes a Superior Proposal and that it intends to accept and, with respect to which, enter into a definitive agreement, subject to the provisions of this Section 5.08(d), providing a copy of any written offer or proposal describing the Superior Proposal, specifying the material terms and conditions of such Superior Proposal and identifying the Person making such Superior Proposal, (b) as of the end of the seven (7) Business Day period referenced above, the Investors shall have failed to notify the Company in writing that they have determined to revise the terms of the Transactions so that such Acquisition Proposal would not constitute a Superior Proposal, and (c) the Company terminates this Agreement in accordance with the requirements of Section 7.01(h) (and pays the termination fee contemplated by Section 7.03) within 48 hours after the lapse of the seven (7) Business Day period referenced above and immediately thereafter enters into an agreement with respect to such Superior Proposal. For purposes of this Agreement, a "Superior Proposal" means a bona fide Acquisition Proposal to (i) acquire for cash more than 50% of the Common Stock of the Company (determined on a fully-diluted basis and after giving effect to the consummation of such Superior Proposal) or (ii) invest $100 million or more for newly issued equity of the Company, that, in either case, is not subject to a financing condition nor due diligence and not directly or indirectly initiated, solicited, encouraged or knowingly facilitated by the Company in violation of this Agreement, which the Board of Directors determines in its good faith judgment (based on the advice of an investment banker of nationally recognized reputation), taking into account all relevant legal, financial, regulatory and other aspects of the proposal and the Person making the proposal, (i) would provide aggregate greater value from a financial point 33 of view to the Company and its stockholders than the Transactions and (ii) is reasonably likely to be completed. SECTION 5.09 Tender Offer; Redemption of Note; Debt Offering. (a) To the extent that the Investors and the Company mutually agree to commence a Tender Offer, (i) the Company shall promptly commence the Tender Offer on terms and conditions (including, without limitation, the offer price) reasonably acceptable to the Investors and (ii) the Company shall use its commercially reasonable efforts to effect and consummate such Tender Offer prior to, or concurrently with, the Closing. (b) Concurrently with the Closing, the Company shall mail notice to all holders of Notes, pursuant to Article III of the Notes Indenture, of the Company's intention to redeem all outstanding Notes on the date that is 30 days following the Closing Date at a redemption price determined in accordance with the Notes Indenture, and at or immediately following the Closing the Company shall deposit with the Paying Agent (as defined in the Notes Indenture), pursuant to Section 3.5 of the Notes Indenture, money sufficient to pay the redemption price for all outstanding Notes. In addition, the Company shall take, or cause to be taken, all other actions necessary to redeem the Notes and to satisfy and discharge effective concurrently with the Closing all obligations of the Company and its Subsidiaries under the Notes Indenture and to obtain the release of all liens relating to the Collateral (as defined in the Notes Indenture) with respect thereto. The actions described in this Section 5.09(b) are collectively referred to as the "Redemption." (c) To the extent that the Investors and the Company mutually agree to commence a Debt Offering, (i) the Company shall promptly commence the Debt Offering on terms and conditions reasonably acceptable to the Investors and (ii) the Company shall use its commercially reasonable efforts to effect and consummate the closing of the Debt Offering prior to, or concurrently with, the Closing. SECTION 5.10 Breaches of Representations and Warranties and Covenants. The Company will, promptly upon becoming aware of (i) any material inaccuracy of any representation or warranty of the Company contained in this Agreement or (ii) any failure on its part to comply with or satisfy, in any material respect, any covenant, condition or agreement to be complied with or satisfied by it under this Agreement on or prior to the Closing Date, notify the Investors of such inaccuracy, breach or non-satisfaction. Each Investor will, promptly upon becoming aware of (i) any material inaccuracy of any representation or warranty of such Investor contained in this Agreement (ii) any failure on its part to comply with or satisfy in any material respect any covenant, condition or agreement to be complied with or satisfied by it under this Agreement on or prior to the Closing Date, notify the Company of such inaccuracy, breach or non-satisfaction. The Company shall notify the Investors, as promptly as practicable, of any changes to Schedule 3.21, as a result of Vessels becoming or ceasing to be Laid-up Vessels. 34 SECTION 5.11 Ruling Request; Ruling. (a) The Investors and the Company shall cooperate to make a request to the United States Coast Guard within five (5) Business Days of the date hereof for a ruling that the Transactions will not result in the Company's inability to comply with the requirements of Section 2 of the Shipping Act, 1916, as amended, for the ownership and operation of vessels in the United States coastwise trade (the "Ruling"), and each party hereto shall as promptly as practicable supply any additional information and documentary material that may be requested in respect of the Ruling and use its commercially reasonable efforts to take, or cause to be taken, all other actions consistent with this Section necessary to obtain the Ruling as soon as practicable; provided, however, commercially reasonable efforts shall, among other things, not require the Investors, or any of their respective affiliates, and under no circumstances will the Investors (or any of their respective affiliates) or the Company be required, to (i) disclose the identity of individual investors or limited partners of the Investors (or any of their respective affiliates), (ii) make changes to their respective organizational structures beyond that required by the initial request for a Ruling if such changes would have a material adverse effect on the investment or require approval of the partners of MBP III (except as it relates to the organization of DLJMB Seabulk Investors, LLC) or Carlyle/Riverstone Global Energy and Power Fund I, L.P., (iii) pay any amounts (other than legal and administrative expenses incurred in connection with seeking to obtain the Ruling), (iv) make any financial accommodations (other than legal and administrative expenses incurred in connection with seeking to obtain the Ruling), (v) require any changes in the organization or ownership of the individual investors or partners of Carlyle/Riverstone Global Energy and Power Fund I, L.P. or (vi) dispose of any assets or take any action that would impose any material adverse prohibition, liability, condition, restriction or imposition on any Investors or any Affiliate of such Investor. (b) MBP III shall recommend to their limited partners that such limited partners consent to and approve amendments to their respective partnership agreements to comply with the Ruling, provided that the Ruling is not inconsistent with the conditions set forth in Section 6.02(h). SECTION 5.12 Capitalization Certificate. Three (3) Business Days prior to the Closing, the Company shall deliver to the Investors a certificate, certified by an appropriate executive officer of the Company, setting forth, as of such date, all of the information contained in Section 3.02(a) with respect to the outstanding shares of capital stock of the Company and the Company Securities. SECTION 5.13 By-laws. The Company shall amend its by-laws to provide (a) that a quorum for meetings of the Board of Directors of the Company will consist of seven (7) directors and (b) for the elimination of the classified Board of Directors. SECTION 5.14 Certificates; Legend. So long as applicable, each certificate representing Shares shall be stamped with a legend substantially in the following form: 35 THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933 OR ANY STATE SECURITIES LAWS AND MAY NOT BE SOLD OR TRANSFERRED IN THE ABSENCE OF SUCH REGISTRATION OR AN AVAILABLE EXEMPTION FROM REGISTRATION REQUIREMENTS UNDER APPLICABLE U.S. SECURITIES LAWS. The Company shall promptly, upon request, remove such legend once it is no longer required under applicable securities Laws. Upon surrender of any certificate representing Shares for exchange at the office of the Company, the Company at its expense will cause to be issued in exchange therefor new certificates in such denomination or denominations as may be requested for the same aggregate number of shares represented by the certificate so surrendered and registered as such holder may request. ARTICLE VI CONDITIONS PRECEDENT TO THE CLOSING SECTION 6.01 Conditions to the Company's Obligations in Respect of the Closing. The obligations of the Company to effect the Transactions and deliver the Shares hereunder shall be subject, at the election of the Company, to the satisfaction or waiver, on or prior to the Closing Date, of the following conditions: (a) The representations and warranties of each Investor contained in this Agreement shall be (i) in the case of representations and warranties that are qualified as to materiality, true and correct, and (ii) in all other cases, true and correct in all material respects, in each case, when made and on and as of the Closing Date with the same force and effect as though made on and as of the Closing Date (except as to any representation or warranty that specifically relates to an earlier date, which need only be so true and correct as of such date). (b) Each Investor shall have performed in all material respects all obligations and agreements, and complied in all material respects with all covenants, contained in this Agreement to be performed and complied with by such Investor on the Closing Date prior to the Closing. (c) Each Investor shall have delivered to the Company a certificate executed by it or on its behalf by a duly authorized representative, dated the Closing Date, to the effect that each of the conditions specified in paragraphs (a) and (b) of this Section 6.01 has been satisfied. (d) The Ruling shall have been obtained, shall be in full force and effect and shall not impose any material adverse prohibitions, liabilities, limitations, conditions or restrictions on the Company. (e) Each of the Investors shall have executed the Stockholders Agreement. 36 SECTION 6.02 Conditions to Each Investor's Obligations in Respect of the Closing. The obligation of each Investor to purchase the Shares to be purchased by it hereunder shall be subject to the satisfaction or waiver, on or prior to the Closing Date, of the following conditions: (a) The representations and warranties of the Company contained in this Agreement shall be (i) in the case of representations and warranties that are qualified as to materiality or Material Adverse Effect, true and correct, and (ii) in all other cases, true and correct in all material respects, in each case, when made and on and as of the Closing Date with the same force and effect as though made on and as of the Closing Date (except as to any representation or warranty that specifically relates to an earlier date, which need only be so true and correct as of such date) except for Sections 3.02 and 3.03, which shall be true and correct in all respects. (b) The Company shall have performed in all material respects all obligations and agreements, and complied in all material respects with all covenants, contained in the Transaction Documents to be performed and complied with by the Company prior to the Closing. (c) The Company shall have delivered to the Investors a certificate executed by it or on its behalf by a duly authorized representative, dated the Closing Date, to the effect that each of the conditions specified in paragraphs (a) and (b) of this Section 6.02 has been satisfied. (d) The Shares shall have been approved for listing and quotation on the Nasdaq National Market System, subject to official notice of issuance. (e) The Investors shall have received the opinion or opinions of counsel to the Company referred to in Section 2.03(b). (f) Persons designated in writing by the Investors shall constitute at least a majority of the directors on the Board of Directors (and, to the extent requested by the Investors, all committees thereof). (g) The Company and Gerhard Kurz shall have executed the Stockholders Agreement, unless the failure by the Company or Gerhard Kurz to execute the Stockholders Agreement resulted from the failure of the Investors to propose an agreed form of Stokholders Agreement consistent with the Stockholder Agreement term sheet. (h) The Ruling shall have been obtained, shall be in full force and effect and shall not impose, and shall not require the Investors or the Company to take any action, or agree to take any action that would impose, any material adverse prohibition, liability, limitation, condition, restriction or imposition on the Investors, their partners or other investors or the Company other than those contained in the initial Ruling request. (i) To the extent applicable for an Investor, the partnership agreements or other governing documents of the Investors or their Affiliates shall have been amended, and the Investors or their Affiliates shall have obtained such citizenship certificates and any other consents from such 37 Persons, as may be necessary to comply with the Investors' request for the Ruling and to obtain the Ruling. (j) The Company shall have executed and delivered the Fee Letter. (k) The Company and Gerhard E. Kurz shall have executed and delivered the Kurz Employment Agreement. (l) Except as relates to compliance with the requirements of 46 U.S.C. App.ss. 883 and 46 U.S.C.ss. 12102 for the ownership and operation of vessels in the United States coastwise trade and the related provisions of the Company's certificate of incorporation regarding such matters with respect to the acquisition, ownership, operation or control of the Company by Affiliates of an Investor other than a Permitted Transferee, and assuming the Ruling is granted, there shall not be in effect any provision of any applicable Law or any injunction, order or decree of any Governmental Authority, or any pending suit, action, arbitration or proceeding, (i) seeking to prohibit or limit the acquisition, ownership, operation or control by any Investor or any of its Affiliates of any Common Stock or any portion of the assets, operations or business of the Company or any of its Subsidiaries, or to compel any Investor or any if its Affiliates to dispose of any Common Stock, (ii) seeking to impose limitations on the ability of any Investor or any of its Affiliates to acquire or hold, or exercise full rights of ownership of, any Common Stock, including the right to vote any Common Stock on all matters properly presented to the stockholders of the Company, (iii) challenging or seeking to restrain or prohibit the Closing or any of the Transactions or (iv) which would, as a result of the Transactions, cause the termination of or materially limit any right, privilege, permit, license or franchise of the Company or any of its Subsidiaries that is material to the Company and its Subsidiaries taken as a whole. (m) The Company shall have paid the expenses of the Investors (as contemplated by Section 8.11) and the Transaction Fee (as defined in the Fee Letter). (n) As of the Closing and after the consummation of the Transactions and the payment of all fees and expenses incurred in connection with the Transactions, including, without limitation, the fees and expenses payable to RBC Dain Rauscher Inc., fees and expenses payable by the Company pursuant to Section 8.11, fees payable pursuant to the Fee Letter, fees and expenses of the Company's legal counsel and accountants or other advisor (the "Transaction Expenses"), the Company shall have $17,500,000 of cash on hand or available for borrowing (pro forma for the completion of the Refinancing and the repayment of the Notes) under the credit facility to be entered into in connection with the Refinancing or under any facilities or agreements that monetize or securitize payments from time charters on Company tankers, provided such charters (as may be subsequently amended in accordance with Section 5.01 hereof) are in effect as of the date of this Agreement (the "Minimum Liquidity"); provided, however, that in the event that the Transaction Expenses exceed $11,000,000, the Minimum Liquidity required by this Section 6.02(n) shall be reduced by such excess amount. 38 SECTION 6.03 Conditions to Each Party's Obligations in Respect of the Closing. The respective obligations of the Company and each Investor hereunder required to be performed at the Closing shall be subject, to the satisfaction or waiver, on or prior to the Closing Date, of the following additional conditions: (a) The Company Requisite Vote shall have been obtained at the first meeting of the stockholders called for the purpose of obtaining the Company Requisite Vote or at any adjournment thereof. (b) Any waiting period under the HSR Act applicable to the Transactions shall have expired or been terminated. (c) No provision of any applicable Law, injunction, order or decree of any Governmental Entity shall be in effect which has the effect of making any of the Transactions illegal or which otherwise prohibits the consummation of the Transactions. (d) [Intentionally omitted.]; (e) A certificate of amendment setting forth the Charter Amendment shall have been duly filed with the Secretary of State of the State of Delaware and shall have become effective in accordance with the applicable provisions of the DGCL. (f) The transactions contemplated by the Commitment Letter, including the Refinancing, shall have been consummated on the terms set forth in the Commitment Letter. (g) Any and all consents, clearances, waivers, approvals, authorizations or orders that are necessary in connection with the consummation of the Transactions (including those contemplated by Schedule 3.08) shall have been obtained. ARTICLE VII TERMINATION SECTION 7.01 Termination. This Agreement may be terminated as follows: (a) at any time prior to the Closing by mutual written agreement of the Company and the Investors; (b) by the Investors, if there shall have been a material breach of any of the representations, warranties, covenants or other obligations of the Company set forth in this Agreement, which breach is not reasonably capable of being cured or, if reasonably capable of being cured, is not cured within ten (10) Business Days following the Company's receipt of notice from the Investors of such breach; (c) by the Company, if there shall have been a material breach of any of the representations, warranties, covenants or other obligations of the Investors set forth in this Agreement, which breach is not reasonably 39 capable of being cured or, if reasonably capable of being cured, is not cured within ten (10) Business Days following the Investors' receipt of notice from the Company of such breach; (d) by either the Company or the Investors, at any time after October 15, 2002, if the Closing shall not have occurred on or prior to such date; provided that the right to terminate this Agreement under this Section 7.01(d) shall not be available to any party whose breach of, or failure to fulfill any obligation under, this Agreement was the cause of or resulted in the failure of the Closing to occur on or before such date; (e) [Intentionally omitted.] (f) by the Investors, if any of the conditions specified in Sections 6.02 or 6.03 shall have become incapable of fulfillment and shall not have been waived by the Investors, provided that the right to terminate under this Section 7.01(f) shall not be available if the Investors shall have breached in any material respect their representations, warranties or obligations contained in this Agreement; (g) by the Company, if any of the conditions specified in Sections 6.01 or 6.03 shall have become incapable of fulfillment and shall not have been waived by the Company, provided that the right to terminate under this Section 7.01(g) shall not be available if the Company shall have breached in any material respect its representations, warranties or obligations contained in this Agreement; (h) by the Company if (i) the Board of Directors shall have determined that an Acquisition Proposal constitutes a Superior Proposal in accordance with the requirements of Section 5.08(d), (ii) the Company shall have delivered to the Investors a written notice of the determination by the Board of Directors to terminate this Agreement pursuant to this Section 7.01(h) and followed in all material respects the procedures required by Section 5.08(d), and (iii) immediately prior to such termination, the Company shall have made payment of the full amounts required by Section 7.03; (i) [Intentionally omitted.] (j) by the Investors, except as relates to compliance with the requirements of 46 U.S.C. App. (S) 883 and 46 U.S.C. (S) 12102 for the ownership and operation of vessels in the United States coastwise trade and the related provisions of the Company's certificate of incorporation regarding such matters with respect to acquisition, ownership, operation or control of the Company by Affiliates of an Investor other than a Permitted Transferee, and assuming the Ruling is granted, if there shall be in effect any provision of any applicable Law or any final and non-appealable injunction, order or decree of any Governmental Authority, (i) seeking to prohibit or limit the acquisition, ownership, operation or control by any Investor or any of its Affiliates of any Common Stock or any portion of the assets, operations or business of the Company or any of its Subsidiaries, or to compel any Investor or any if its Affiliates to dispose of any Common Stock, (ii) seeking to impose limitations on the ability of any Investor or any of its Affiliates to acquire or hold, or exercise full rights of ownership of, any Common Stock, including the right to vote any 40 Common Stock on all matters properly presented to the stockholders of the Company, (iii) challenging or seeking to restrain or prohibit the Closing or any of the Transactions or (iv) which would, as a result of the Transactions, cause the termination of or materially limit any right, privilege, permit, license or franchise of the Company or any of its Subsidiaries that is material to the Company and its Subsidiaries taken as a whole. (k) by the Investors, if the Board of Directors (i) has withdrawn, or amended or modified, in a manner adverse to the Investors, its recommendation that the Company's stockholders approve the Stock Purchase and the Charter Amendment (or has announced publicly its intention to do so) or (ii) has recommended an Alternative Transaction to the Company's stockholders (or has announced publicly its intention to do so). SECTION 7.02 Manner and Effect of Termination. In the event of termination of this Agreement, written notice thereof shall be given to the other parties specifying the provision hereof pursuant to which such termination is made. Upon termination, this Agreement shall become null and void and of no further force or effect, and the parties hereto shall be released from all future obligations hereunder; provided, however, that this Section 7.02, Section 7.03 and Article VIII shall remain in full force and effect and no party shall be relieved from liability with respect to a breach of this Agreement as a result of the termination of this Agreement. SECTION 7.03 Termination Fee. In the event this Agreement is to be terminated (i) by the Company pursuant to Section 7.01(h), then the Company shall pay to the Investors, as a condition to the effectiveness of such termination, by wire transfer of immediately available funds $6,000,000 and the expense reimbursement contemplated by Section 8.11 or (ii) by the Investors pursuant to Section 7.01(k), then the Company shall pay to the Investors, within twenty-four (24) hours of such termination, by wire transfer of immediately available funds, $6,000,000 and the expense reimbursement contemplated by Section 8.11, provided that in the event of a termination pursuant to Section 7.01(h) or 7.01(k), the Company will not be obligated to pay or reimburse the Investors for their fees on expenses in an amount in excess of two million dollars ($2,000,000). In the event that the Company shall fail to pay the amounts required pursuant to this Section 7.03 when due, the Company shall pay to the Investors their costs and expenses (including attorneys' fees) in connection with collection of such amounts. The Company acknowledges that the fee contained in this Section 7.03 is fair and reasonable (and not a penalty) and that the agreements contained in this Section 7.03 are an integral part of the transactions contemplated by this Agreement, and that, without these agreements, the Investors would not enter into this Agreement. ARTICLE VIII MISCELLANEOUS SECTION 8.01 Survival; Effect of Investigation. Except as otherwise provided in this Section 8.01, the representations, warranties, covenants and agreements of the parties hereto shall remain in full force and 41 effect regardless of any investigation made by or on behalf of any other party hereto, any Person controlling any such party or any of their officers, directors, agents or representatives, whether prior to or after the execution of this Agreement, and no information provided or made available to any such Person in such investigation shall be deemed to be disclosed in this Agreement or in the schedules hereto, except to the extent actually set forth or referred to herein or therein. The representations and warranties contained in this Agreement shall terminate upon the Closing. SECTION 8.02 Notices. All notices, demands, requests, consents, approvals or other communications (collectively, "Notices") required or permitted to be given hereunder, or that are given with respect to this Agreement, shall be in writing and shall be personally delivered by reputable "next business day" air courier service with charges prepaid, or transmitted by hand delivery or facsimile, addressed as set forth below, or to such other address as such party shall have specified most recently by written notice. Notice shall be deemed given on the date of service or transmission if personally served or transmitted by facsimile. Notice otherwise sent as provided herein shall be deemed given on the next business day following delivery of such notice to a reputable "next business day" air courier service. If to the Company, to: Seabulk International, Inc. 2200 Eller Drive Fort Lauderdale, FL 33316 Attn: General Counsel Telephone: (954) 524-4200 Fax: (954) 527-1772 with copies (which shall not constitute notice) to: Vinson & Elkins L.L.P. 2300 First City Tower 1001 Fannin Houston, TX 77002 Attn: James Prince Telephone: (713) 758-3710 Fax: (713) 615-5962 If to the Investors, to: in the case of Nautilus Acquisition, L.P., to: c/o Credit Suisse First Boston Private Equity 11 Madison Avenue New York NY 10010 Attn: Ari Benacerraf Telephone: (646) 935-7190 Fax: (212) 538-0415 42 in the case of C/R Marine Domestic Partnership, L.P., C/R Marine Non-U.S. Partnership, L.P., C/R Marine Coninvestment, L.P. or C/R Marine Coinvestment II, L.P., to: c/o Riverstone Holdings, LLC 712 Fifth Avenue, 19th Floor New York, NY 10019 Attn: John Lancaster Telephone: (212) 993-0088 Fax: (212) 993-0077 with copies (which shall not constitute notice) to: Weil, Gotshal & Manges LLP 767 Fifth Avenue New York, NY 10153 Attn: David M. Blittner Telephone: (212) 310-8000 Fax: (212) 310-8007 SECTION 8.03 GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY, INTERPRETED UNDER, AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, EXCEPT WITH RESPECT TO THE PROVISIONS OF SECTIONS 5.03, 5.08, 7.01(h), 7.01(k) OR 7.03, WHICH SHALL BE GOVERNED BY, INTERPRETED UNDER, AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF DELAWARE, THE STATE OF INCORPORATION OF THE COMPANY, IN EITHER CASE, REGARDLESS OF THE LAWS THAT MIGHT OTHERWISE GOVERN UNDER APPLICABLE PRINCIPLES OF CONFLICTS OF LAW THEREOF. SECTION 8.04 ENFORCEMENT OF AGREEMENT; WAIVER OF JURY TRIAL; ETC. The parties agree that irreparable damage would occur in the event that any of the provisions of this Agreement were not performed in accordance with their specific terms or were otherwise breached. It is accordingly agreed that the parties shall be entitled to an injunction or injunctions to prevent breaches of this Agreement and to enforce specifically the terms and provisions of this Agreement in any court of the United States or any state court, without bond or other security being required, this being in addition to any other remedy to which they are entitled at law or in equity. IN ADDITION, EACH OF THE PARTIES HERETO (A) CONSENTS TO SUBMIT ITSELF TO THE EXCLUSIVE PERSONAL JURISDICTION OF ANY FEDERAL COURT LOCATED IN THE STATE OF DELAWARE OR ANY DELAWARE STATE COURT IN THE EVENT ANY DISPUTE ARISES OUT OF THIS AGREEMENT OR ANY OF THE TRANSACTIONS CONTEMPLATED HEREBY AND (B) AGREES THAT IT WILL NOT 43 ATTEMPT TO DENY OR DEFEAT SUCH PERSONAL JURISDICTION BY MOTION OR OTHER REQUEST FOR LEAVE FROM ANY SUCH COURT. EACH PARTY HEREBY WAIVES TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN RESPECT TO ANY LITIGATION DIRECTLY OR INDIRECTLY ARISING OUT OF, UNDER OR IN CONNECTION WITH THIS AGREEMENT OR ANY TRANSACTION CONTEMPLATED HEREBY. SECTION 8.05 Attorneys' Fees. A party in breach of this Agreement shall, on demand, indemnify and hold harmless the other party for and against all reasonable out-of-pocket expenses, including legal fees, incurred by such other party by reason of the enforcement and protection of its rights under this Agreement. The payment of such expenses is in addition to any other relief to which such other party may be entitled. SECTION 8.06 Entire Agreement. This Agreement (including all agreements entered into pursuant hereto and all certificates and instruments delivered pursuant hereto) constitute the entire agreement of the parties with respect to the subject matter hereof and supersede all prior and contemporaneous agreements, representations, understandings, negotiations and discussions between the parties, whether oral or written, with respect to the subject matter hereof. SECTION 8.07 Modifications and Amendments. No amendment, modification or termination of this Agreement shall be binding unless executed in writing by each party hereto. SECTION 8.08 Waivers and Extensions. Any party to this Agreement may waive any condition, right, breach or default that such party has the right to waive, provided that such waiver will not be effective against the waiving party unless it is in writing, is signed by such party, and specifically refers to this Agreement. Waivers may be made in advance or after the right waived has arisen or the breach or default waived has occurred. Any waiver may be conditional. No waiver of any breach of any agreement or provision herein contained shall be deemed a waiver of any preceding or succeeding breach thereof nor of any other agreement or provision herein contained. No waiver or extension of time for performance of any obligations or acts shall be deemed a waiver or extension of the time for performance of any other obligations or acts. SECTION 8.09 Titles and Headings; Rules of Construction. Titles and headings of sections of this Agreement are for convenience only and shall not affect the construction of any provision of this Agreement. Unless the context otherwise requires: (a) a term has the meaning assigned to it; (b) "or" is not exclusive; (c) "including" means including without limitation; and (d) words in the singular include the plural and words in the plural include the singular. The parties hereto have participated jointly in the negotiation and drafting of this Agreement and, in the event an ambiguity or question of intent or interpretation arises, this Agreement shall be construed as jointly drafted 44 by the parties hereto and no presumption or burden of proof shall arise favoring or disfavoring any party by virtue of the authorship of any provision of this Agreement. SECTION 8.10 Exhibits and Schedules. Each of the exhibits and schedules referred to herein and attached hereto is an integral part of this Agreement and is incorporated herein by reference. SECTION 8.11 Expenses. Subject to Section 7.03, whether or not the transactions contemplated in this Agreement are consummated or this Agreement is terminated, the Company hereby agrees (a) to pay all costs and expenses incident to the performance of its obligations under the Transaction Documents and (b) if (i) this Agreement is terminated by the Investors in accordance with Section 7.01(b) as a result of an intentional breach of a representation, warranty or covenant of the Company contained in this Agreement or in accordance with Section 7.01(k), (ii) this Agreement is terminated by the Company in accordance with Section 7.01(h), (iii) this Agreement is terminated by the Investors as a result of the condition in Section 6.03(a) failing to be satisfied, or (iv) the Transactions contemplated under this Agreement are consummated, all documented out-of-pocket costs and expenses (including attorneys', accountants' and consultants' fees) incurred since January 1, 2002 by the Investors in connection with the evaluation, negotiation or performance of this Agreement and the transactions contemplated hereby; provided that, in the case of clause (iv), such expenses shall include any amounts the Investors are required to pay to or reimburse Loomis under the Loomis Purchase Agreement; provided further, in case of clause (iii), so long as the Company has otherwise not breached Section 5.08 hereof and the Investors are not otherwise entitled to receive their expenses pursuant to clauses (i), (ii), or (iv) hereof, the Company shall not be obligated to pay or reimburse the Investors for their fees and expenses in an amount in excess of seven hundred thousand dollars ($700,000). Reimbursement of costs and expenses by the Company under clause (b) of the foregoing sentence shall be made promptly after receipt of invoices in reasonably sufficient detail with copies of relevant backup invoices; provided that any expense reimbursement made in connection with Section 7.03 will be made pursuant to the timing as set forth in such Section. Unless otherwise provided in this Section 8.11, each party shall pay its own costs and expenses relating to this Agreement, any of the other Transaction Documents and the Transactions contemplated thereunder. SECTION 8.12 Press Releases and Public Announcements. All public announcements or public disclosures relating to this Agreement and the Transactions shall be made only if mutually agreed upon by the Company and the Investors, except to the extent such disclosure is, in the opinion of counsel of the Company, required by Law or by any rule or listing requirement of any national stock exchange or Commission recognized trading market on which securities issued by the Company are listed or quoted, provided that (a) any such required disclosure shall only be made, to the extent consistent with Law and stock exchange regulation, after consultation with the Investors, (b) no such announcement or disclosure (except as required by Law or by stock exchange regulation) shall identify any Investor without such Investor's prior consent, and (c) the Company hereby consents to the publication by the Investors or their 45 Affiliates of a customary "tombstone" advertisement announcing the Transactions. SECTION 8.13 Assignment; No Third Party Beneficiaries. This Agreement and the rights, duties and obligations hereunder may not be assigned or delegated by the Company without the prior written consent of the Investors, and may not be assigned or delegated by any Investor without the Company's prior written consent, except that without such consent this Agreement may be assigned or delegated, in whole or in part, by any Investor (or by any assignee referred to in this provision) to any other Investor or to any Permitted Transferee; provided, however that no assignment by the Investors (without the Company's consent) to a Permitted Transferee that is not identified in the Ruling request shall have the effect of materially delaying the Ruling. Except as set forth above, any assignment or delegation of rights, duties or obligations hereunder made without the prior written consent of the Investors, shall be void and of no effect. This Agreement and the provisions hereof shall be binding upon and shall inure to the benefit of each of the parties and their respective successors and permitted assigns. This Agreement is not intended to confer any rights or benefits on any Persons other than the parties hereto. SECTION 8.14 Severability. This Agreement shall be deemed severable, and the invalidity or unenforceability of any term or provision hereof shall not affect the validity or enforceability of this Agreement or of any other term or provision hereof. Furthermore, in lieu of any such invalid or unenforceable term or provision, the parties hereto intend that there shall be added as a part of this Agreement a provision as similar in terms to such invalid or unenforceable provision as may be possible and be valid and enforceable. SECTION 8.15 Counterparts. This Agreement may be executed in counterparts, each of which shall be deemed an original, but all of which taken together shall constitute one and the same instrument. SECTION 8.16 Certain Limitations. The Company agrees that no past, present or future director, officer, employee, partner, member, shareholder and/or Affiliate of an Investor or Permitted Transferee shall have any liability for any of such Investor's or Permitted Transferee's obligations under this Agreement or for any claim based on, in respect of or by reason of such obligations or their creation. [signature pages follow] 46 IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date first above written. SEABULK INTERNATIONAL, INC. By: /s/ Gerhard E. Kurz ------------------------------------------ Name: Gerhard E. Kurz Title: President and Chief Executive Officer NAUTILUS ACQUISITION, L.P. By: Nautilus Intermediary, L.P., its general partner By: /s/ Ari Benacerraf ------------------------------------------ Name: Ari Benacerraf Title: Authorized Signatory C/R MARINE DOMESTIC PARTNERSHIP, L.P. By: C/R Marine GP Corp., its general partner By: /s/ Pierre F. Lapeyre ------------------------------------------ Name: Pierre F. Lapeyre Title: Vice President 47 C/R MARINE NON-U.S. PARTNERSHIP, L.P. By: C/R Marine GP Corp., its general partner By: /s/ Pierre F. Lapeyre ------------------------------------------ Name: Pierre F. Lapeyre Title: Vice President C/R MARINE COINVESTMENT, L.P. By: C/R Marine GP Corp., its general partner By: /s/ Pierre F. Lapeyre ------------------------------------------ Name: Pierre F. Lapeyre Title: Vice President C/R MARINE COINVESTMENT II, L.P. By: C/R Marine GP Corp., its general partner By: /s/ Pierre F. Lapeyre ------------------------------------------ Name: Pierre F. Lapeyre Title: Vice President 48 Schedule 1 Name of Investor: Nautilus Acquisition, L.P. Number of Shares: 8,333,333 Aggregate Purchase Price: $66,666,664 Name of Investor: C/R Marine Non-U.S. Partnership, L.P. Number of Shares: 2,612,951 Aggregate Purchase Price: $20,903,608 Name of Investor: C/R Marine Domestic Partnership, L.P. Number of Shares: 847,631 Aggregate Purchase Price: $6,781,048 Name of Investor: C/R Marine Coinvestment, L.P. Number of Shares: 356,662 Aggregate Purchase Price: $2,853,296 Name of Investor: C/R Marine Coinvestment II, L.P. Number of Shares: 349,423 Aggregate Purchase Price: $2,795,384 49 EX-2 4 dex2.txt EXHIBIT 2 Exhibit 2 Execution Copy SECURITIES PURCHASE AGREEMENT THIS SECURITIES PURCHASE AGREEMENT (this "Agreement"), dated as of June 13, 2002, is entered into by and among Loomis, Sayles & Company, L.P., a Delaware limited partnership ("Loomis"), in its capacity as investment advisor to the holders (each a "Holder" and collectively, the "Holders") of certain investment accounts (the account or portion thereof managed by Loomis, the "Managed Accounts"), and each of the purchasers listed on Schedule 1 hereto (each, a "Purchaser" and collectively, the "Purchasers"). WHEREAS, as of the date hereof, the Managed Accounts contain an aggregate of (a) 5,256,122 shares (together with any shares of Common Stock received upon exercise, after the date hereof, of the Class A Warrants and the Note Warrants, each as defined below, the "Shares") of Common Stock, par value of $0.01 per share (the "Common Stock"), of Seabulk International, Inc., a Delaware corporation (the "Company"), (b) 130,602 Common Stock Purchase Warrants (the "Note Warrants"), and (c) 49,915 Class A Common Stock Purchase Warrants (the "Class A Warrants" and, together with the Shares and the Note Warrants, the "Equity Securities"), and, as a result of Loomis being an investment advisor to the Holders, Loomis may be deemed to beneficially own (as determined pursuant to Rule 13d-3 as promulgated under the Exchange Act of 1934, as amended) the Equity Securities; WHEREAS, on the date hereof, but prior to the execution of this Agreement, the Purchasers and the Company entered into a Stock Purchase Agreement (the "Company Purchase Agreement"), pursuant to which the Company agreed to issue and sell shares of Common Stock to the Purchasers upon the terms and subject to the conditions set forth therein (the "Company Purchase"); and WHEREAS, as of the date of this Agreement, approximately 90 Managed Accounts for Holders having investment management contracts with Loomis contain Equity Securities, which, in a limited number of situations, may include multiple Managed Accounts of a Holder or related Holders. NOW, THEREFORE, in consideration of the mutual promises contained in this Agreement and other valuable consideration, the receipt of which is acknowledged, the parties to this Agreement agree as follows: ARTICLE I PURCHASE AND SALE OF SECURITIES 1.1 Purchase and Sale. Subject to the terms and conditions of this Agreement and on the basis of the representations and warranties set forth herein, at the Closing (as hereinafter defined), Loomis, in its capacity as investment advisor to the Holders, shall Cause (as defined below) the Holders to sell to each Purchaser, and each Purchaser (severally and not jointly) shall 1 purchase from the Holders, (a) the number of Shares set forth with respect to such Purchaser on Schedule 1 hereto at a purchase price of $8.00 per share, (b) the number of Note Warrants set forth with respect to such Purchaser on Schedule 1 hereto at a purchase price of $7.99 per Note Warrant, and (c) the number of Class A Warrants set forth with respect to such Purchaser on Schedule 1 hereto at a purchase price of $0.01 per Class A Warrant; provided, however, that the aggregate number of Shares, Note Warrants or Class A Warrants so sold and purchased shall not exceed the Deliverable (as defined below) number of Shares, Note Warrants or Class A Warrants, as the case may be. In the event that the Deliverable number of securities of any class of the Equity Securities is less than the aggregate number for such class set forth on Schedule 1 hereto, the amounts of such class to be purchased by each Purchaser shall be deemed to be reduced pro rata such that the aggregate of such amounts will equal the Deliverable number. The "Deliverable" number of Shares, Note Warrants or Class A Warrants shall be the respective number of such securities which Loomis Causes the Holders to deliver at the Closing. With respect to the obligations of Loomis pursuant to this Agreement, "Cause" shall mean, subject only to the express limitations of Loomis's authority set forth on Schedule 2 hereto, the taking or causation of such action, whether through custodians and other third parties or otherwise (it being understood that Loomis does not supervise or control such custodians and other third parties). 1.2 Closing. (a) The purchases and sales of the Equity Securities shall occur (the "Closing") concurrently with or immediately following the closing of the Company Purchase (the date on which such Closing occurs is referred to as the "Closing Date"), at the offices of Weil, Gotshal & Manges LLP, located at 767 Fifth Avenue, New York, New York 10153, or at such other place as the parties hereto shall agree in writing. (b) At the Closing, Loomis shall Cause to be delivered to the Purchasers, against payment of the purchase price therefor, certificates or appropriate book-entry credits for the Equity Securities to be purchased by the Purchasers pursuant to Section 1.1, together with, in the case of any certificates, appropriate stock powers (or otherwise properly endorsed in blank for transfer) and appropriate warrant assignments. Upon payment by the Purchasers of the purchase price in accordance with Section 1.1 hereof, and upon transfer of the shares to the Purchasers, the Purchasers shall be entitled to the benefit of the applicable warranties set forth in Sections 8-108 and 8-109 of the Uniform Commercial Code as then in effect, as the case may be. (c) At the Closing, each Purchaser shall deliver to Loomis by wire transfer or book-entry transfer of immediately available funds to such bank or DTC accounts for the Holders, as Loomis shall designate in writing prior to the Closing Date, respective amounts equaling the aggregate purchase price for the Equity Securities being purchased by such Purchaser. 2 ARTICLE II REPRESENTATIONS AND WARRANTIES OF LOOMIS Loomis hereby represents and warrants to each Purchaser severally on the date hereof and as of the Closing Date as follows: 2.1 Organization. Loomis is a limited partnership duly organized, validly existing and in good standing under the laws of the State of Delaware. 2.2 Authorization. Loomis has the requisite authority to execute and deliver this Agreement and to Cause the performance of the transactions contemplated hereby to be performed by it. The execution and delivery by Loomis of this Agreement and the performance by it of all transactions contemplated hereby to be performed by it have been duly authorized by action of its special general partner, Loomis, Sayles Voting, Inc. and by all other necessary action on the part of Loomis. This Agreement has been duly executed and delivered by Loomis and, assuming the due execution and delivery of this Agreement by the Purchasers, constitutes a valid and binding obligation of Loomis enforceable against it in accordance with its terms. 2.3 No Conflicts. The execution and delivery of this Agreement by Loomis does not, and neither the performance by Loomis of the transactions contemplated hereby to be performed by it, nor the consummation of the transactions contemplated hereby, will (i) conflict with the partnership agreement of Loomis, (ii) violate any order, judgment, decree, writ or injunction ("Order") of any federal, state or foreign court or governmental agency, authority or body or any instrumentality or political subdivision thereof ("Governmental Entity"), (iii) subject to Schedule 2, conflict with, result in a violation or breach of, or constitute a default under, any agreement to which Loomis is a party or by which any of its assets are bound, or (iv) subject to Schedule 2, violate any domestic or foreign law, statute, rule or regulation ("Law"). 2.4 Status of Securities. The Equity Securities constitute all equity securities of the Company owned beneficially, within the meaning of Rule 13d-3 ("Rule 13d-3") promulgated under the Securities Exchange Act of 1934, as amended, or of record by Loomis or the Managed Accounts. Loomis has the power to Cause the disposition and voting of all of the Equity Securities. As made as of Closing Date, representations and warranties made in this Section 2.4 relate solely to shares which are Deliverable. 2.5 Agreements Related to the Securities. With the exception of the Registration Rights Agreement described in Section 4.5 hereof, which agreement will be terminated in accordance with Section 4.5 hereof on the Closing Date, Loomis for itself or for the Holders is not party to any stockholders' agreements, voting trusts, proxies or other agreements or understandings specifically with respect to the Equity Securities. 2.6 Broker's or Finder's Fees. No agent, broker, person or firm acting on behalf of Loomis is, or will be, entitled to any commission or broker's or finder's fees from any Purchaser, or from any person or entity controlling, controlled by or under common control with any Purchaser, in 3 connection with any of the transactions contemplated by this Agreement. ARTICLE III REPRESENTATIONS AND WARRANTIES OF EACH PURCHASER Each of the Purchasers severally as to itself only, and not jointly, hereby represents and warrants to Loomis on the date hereof and as of the Closing Date as follows: 3.1 Organization. Such Purchaser is duly organized, validly existing and in good standing under the laws of its jurisdiction of organization. 3.2 Authorization. Such Purchaser has the requisite power to execute and deliver this Agreement and to perform the transactions contemplated hereby to be performed by it. The execution and delivery by such Purchaser of this Agreement and the performance by it of the transactions contemplated hereby to be performed by it have been duly authorized by all necessary action on the part of such Purchaser. This Agreement has been duly executed and delivered by such Purchaser and, assuming the due execution and delivery of this Agreement by Loomis and each other Purchaser, constitutes a valid and binding obligation of such Purchaser enforceable against each such Purchaser in accordance with its terms. 3.3 No Conflicts. The execution and delivery of this Agreement by such Purchaser does not, and neither the performance by such Purchaser of the transactions contemplated hereby to be performed by it, nor the consummation of the transactions contemplated hereby, will (i) conflict with the organizational documents of such Purchaser, (ii) violate any Order, (iii) conflict with, result in a violation or breach of, or constitute a default under, any agreement to which such Purchaser is a party or by which any of its assets are bound, or (iv) violate any Law. 3.4 Financing. Such Purchaser will have on the Closing Date sufficient funds to purchase the Equity Securities set forth with respect to such Purchaser on Schedule 1. 3.5 Knowledge. Such Purchaser understands that except for information which is publicly available, Loomis and the Holders do not regularly receive information directly from the Company. The Purchasers have not sought or obtained any information from Loomis or any Holder regarding the Company or the Equity Securities and are not relying upon any statement by Loomis or any Holder concerning the Company or the Equity Securities. 3.6 Consents and Approvals. Except for (a) filings by such Purchaser, if any, required by the Hart-Scott-Rodino Antitrust Improvements Act of 1974, as amended, and applicable rules and regulations and the expiration or termination of the applicable waiting period with respect thereto, (b) the Ruling (as defined in the Company Purchase Agreement) and (c) applicable filings, if any, pursuant to the Exchange Act, no consent, approval, waiver, order, or authorization of, or registration, declaration, or filing with, or notice to, 4 any Governmental Entity is required to be obtained or made by such Purchaser in connection with the execution and delivery of this Agreement by such Purchaser, the performance by such Purchaser of the transactions contemplated hereby to be performed by it, or the consummation of the transactions contemplated hereby, other than those already obtained. 3.7 Securities Law Matters. Such Purchaser understands and acknowledges that the Equity Securities have not been registered under the Securities Act of 1933, as amended (the "Securities Act"), or the securities laws of any state or foreign jurisdiction and, unless so registered, may not be offered, sold, transferred, or otherwise disposed of except pursuant to an exemption from, or in a transaction not subject to, the registration requirements of the Securities Act and any applicable securities laws of any state or foreign jurisdiction. Such Purchaser further understands and acknowledges that the Holders may be an "affiliate" of the Company as that term is defined and used in Rule 144 under the Securities Act. Such Purchaser is acquiring the Equity Securities for investment, and not with a view to, or for sale in connection with, any distribution thereof in contravention of applicable securities laws. ARTICLE IV COVENANTS 4.1 Agreement to Vote. Loomis agrees (i) to Cause the voting of all Shares in favor of the Company Purchase and the Charter Amendment (in substantially the form attached as Schedule 3 hereto) (the "Approved Matters") at any meeting or meetings of the stockholders of the Company, and at any adjournment thereof, at or by which the Approved Matters are submitted for the vote of the stockholders of the Company and (ii) to Cause the voting of all Shares against any issuance of shares of capital stock of the Company, merger, consolidation, sale of assets, reorganization, recapitalization, charter or bylaw amendment, plan of reorganization or plan of liquidation or take any other action relating to the Company or any of its subsidiaries, the consummation of which or otherwise would either frustrate the purposes of, or prevent or delay the consummation of, the Approved Matters. 4.2 Restrictions. (a) Loomis agrees that it will not, directly or indirectly through any officer, director, employee, representative, agent, affiliate or otherwise (i) offer to sell, sell, transfer, pledge, assign or otherwise dispose of, including by gift (collectively, "Transfer"), or enter into any contract, option or other arrangement with respect to the Transfer of the Equity Securities, other than to the Purchasers, (ii) enter into any voting arrangement, whether by proxy, voting agreement, voting trust or otherwise (except the voting agreement with the Purchasers set forth in this Agreement), (iii) exercise the Note Warrants or the Class A Warrants, or (iv) have any discussion with any third party (other than the Purchasers or the Holders following the public announcement of the transactions contemplated by this Agreement) with respect to, or engage in any negotiations concerning, any of the foregoing; provided, however, that Loomis may have such discussions and 5 negotiations following an unsolicited bona fide written Acquisition Proposal (as defined in the Company Purchase Agreement) made to the Company if and only to the extent that the Company has discussions or provides non-public information in connection with such an Acquisition Proposal in compliance with the terms of the Company Purchase Agreement. Loomis shall immediately cease and cause to be terminated any existing discussions or negotiations with any third party (other than the Purchasers and the Company) conducted heretofore with respect to any of the foregoing. (b) The authority of Loomis to act (and to refrain from acting) under Section 4.2(a) above on behalf of the Holders is subject to the disclosures set forth in Schedule 2 to this Agreement. Notwithstanding anything to the contrary contained herein or in Schedule 2 hereto (other than as expressly permitted by the proviso in Section 4.2(a) above or as described in Section 4.2(c) below), Loomis shall not under any circumstance or in any way, directly or indirectly through any officer, director, employee, representative, affiliate, agent or otherwise, (i) initiate, solicit or encourage the initiation of (including by way of furnishing information) any inquiry, offer or proposal with respect to any Transfer of any Equity Securities (other than to the Purchasers pursuant to this Agreement) or to vote any Shares against the Company Purchase or the Charter Amendment, (ii) solicit or initiate discussions with any person on entity (including, but not limited to, any Holder or fiduciary of a Managed Account other than under Schedule 2, C(a)(ii)) to Transfer any Equity Securities other than to the Purchasers or to vote any Shares against the Company Purchase or the Charter Amendment, or (iii) otherwise initiate any matter referred to in Section 4.2(a) above. (c) Loomis shall notify the Purchasers orally and in writing promptly (but in no event later than five days) after receipt of any inquiry, offer or proposal with respect to any Transfer of any Equity Securities (other than to the Purchasers or to a Holder under Schedule 2, C(a)(ii)) or voting any Shares other than as contemplated by Section 4.1 hereof which would reasonably be expected to result in the Transfer of any Equity Securities (other than to the Purchasers or to a Holder under Schedule 2, C(a)(ii)) or voting any Shares other than as contemplated by Section 4.1 hereof. Such notice shall indicate the material terms of any such inquiry, offer or proposal. Loomis shall keep the Purchasers informed, on a current basis, of any material changes or modifications in the status or terms of any such inquiry, offer or proposal. In the event that Loomis determines, in good faith, it is legally required to Transfer any Equity Securities pursuant to paragraphs A and C on Schedule 2, Loomis shall notify the Purchasers orally and in writing promptly (but in no event later than three days after such determination and 72 hours prior to any Transfer) of such action. Such notice shall (i) indicate the identity of the person or entity acquiring such Equity Securities and the proposed terms of such acquisition, (ii) fairly describe the basis for Loomis determining it is legally required to effect such Transfer pursuant to Schedule 2, and (iii) include copies of any written documentation proposed to effect such Transfer. 4.3 Best Efforts. Loomis hereby certifies its intention to use its best efforts, subject to and consistent with its fiduciary duties as disclosed in paragraph C of Schedule 2 hereto, to support the Company Purchase and cause the Holders of Managed Accounts to support the Company Purchase, in each case by voting in favor of the Approved Matters and selling Equity Securities to the 6 Purchasers in accordance with the terms of this Agreement. In furtherance of the foregoing, if requested or required by a Holder of a Managed Account to advise such Holder with respect to voting any Equity Securities on any Approved Matters or with respect to the disposition or sale of Equity Securities pursuant to the terms hereof, Loomis shall provide appropriate information with respect to such Approved Matters and the terms of this Agreement and counsel such Holder that it vote in favor of the Approved Matters and sell or dispose, or refrain from selling or disposing, of Equity Securities pursuant to the terms hereof, as the case may be, subject to the fiduciary duties owed to the Holders as described in paragraph C of Schedule 2 hereto. 4.4 Further Assurances. Loomis shall take all such other actions as may be reasonably necessary to consummate the transactions contemplated by this Agreement. 4.5 Termination of Registration Rights Agreement. Upon the Closing, the Registration Rights Agreement by and between Loomis and the Company dated December 15, 1999 (the "Registration Rights Agreement") will terminate and be of no further force or effect. 4.6 Confidentiality. (a) Loomis agrees that, for a period of two years from the date hereof, neither it nor Loomis Voting shall at any time disclose in any manner or for any reason, without the Purchasers prior written consent, any confidential or proprietary information concerning the Purchasers or the Transactions (as defined in the Company Purchase Agreement), other than information that is or becomes ascertainable from public or published information, except as a result of disclosure by Loomis or its affiliates ("Confidential Information"), unless disclosure of Confidential Information is required by applicable Law or inquiry by any Governmental Entity and subject always to Loomis ability to have customary communications with the Holders of the Managed Accounts. Loomis or Loomis Voting may disclose Confidential Information to its respective directors, officers, employees, affiliates, agents or representatives who need to know such information for the purpose of evaluating the transactions contemplated by this Agreement on behalf of Loomis or Loomis Voting and then only to the extent necessary to permit such persons to assist Loomis or Loomis Voting in evaluating such transactions (it being understood that such persons shall be informed by Loomis or Loomis Voting of the confidential nature of such information and shall be directed by Loomis or Loomis Voting, and shall each expressly agree, to treat such information confidential in accordance with this Section 4.6(a)). (b) Each Purchaser agrees that, for a period of two years from the date hereof, it shall not at any time disclose in any manner or for any reason, without Loomis's prior written consent, any confidential or proprietary information concerning Loomis, Lommis Voting, any Holder or any Managed Account obtained in the negotiation of this Agreement or the consummation of the transactions contemplated hereby, other than information that is or becomes ascertainable from public or published information, except as a result of disclosure by any Purchaser or any of its respective affiliates ("Loomis 7 Confidential Information"), unless disclosure of Loomis Confidential Information is required by applicable Law or inquiry by any Governmental Entity. Any Purchaser may disclose Loomis Confidential Information to any of its respective directors, officers, employees, affiliates, agents or representatives who need to know such information for the purpose of evaluating the transactions contemplated by this Agreement and then only to the extent necessary to permit such persons to assist such Purchaser in evaluating such transactions (it being understood that such persons shall be informed by such Purchaser of the confidential nature of such information and shall be directed by such Purchaser, and shall expressly agree, to treat such information confidential in accordance with this Section 4.6(b)). ARTICLE V CONDITIONS TO CLOSING 5.1 Conditions to Obligation of Each Purchaser. The obligation of each Purchaser to purchase the Equity Securities to be purchased by it hereunder shall be subject to the satisfaction or waiver, on or prior to the Closing Date of the following conditions: (a) The representations and warranties of Loomis contained herein shall be true and correct in all material respects on the date hereof and on and as of the Closing Date as though made on and as of such date. (b) Loomis shall have complied with all of its covenants, agreements and obligations contained herein. (c) Except as relates to compliance with the requirements of 46 U.S.C. App.(S) 883 and 46 U.S.C.(S) 12102 for the ownership and operation of vessels in the United States coastwise trade and the related provisions of the Company's certificate of incorporation regarding such matters with respect to the acquisition, ownership, operation or control of the Company by affiliates of a Purchaser other than a Permitted Transferee (as defined in the Company Purchase Agreement), and assuming the Ruling is granted, there shall not be in effect any provision of any applicable law or any injunction, order or decree of any Governmental Entity, or any pending suit, action, arbitration or proceeding, (i) seeking to prohibit or limit the acquisition, ownership, operation or control by any Purchaser or any of its affiliates of any Equity Securities, or to compel any Purchaser or any if its affiliates to dispose of any Common Stock, (ii) seeking to impose limitations on the ability of any Purchaser or any of its affiliates to acquire or hold, or exercise full rights of ownership of, any Equity Securities, or (iii) challenging or seeking to restrain or prohibit the Closing or any of the transactions contemplated hereby or by the Company Purchase Agreement. (d) All conditions to the obligations of the Purchasers under the Company Purchase Agreement shall have been satisfied and the Company Purchase shall have been consummated. 8 5.2 Conditions to Obligation of Loomis. The obligation of Loomis to sell the Equity Securities to the Purchasers shall be subject to the satisfaction or waiver, on or prior to the Closing Date, of the following conditions: (a) The representations and warranties of each Purchaser contained herein shall be true and correct in all material respects on the date hereof and on and as of the Closing Date as though made on as of such date. (b) Each Purchaser shall have performed in all material respects all obligations and agreements to be performed and complied with by such Purchaser on the Closing Date prior to the Closing. (c) The Ruling (as defined in the Company Purchase Agreement) shall have been obtained and shall be in full force and effect. ARTICLE VI TERMINATION 6.1 Termination. This Agreement may be terminated as follows: (a) at any time prior to the Closing by mutual written agreement of Loomis and the Purchasers; (b) by the Purchasers, if there shall have been a material breach of any of the representations, warranties, covenants or other obligations of Loomis set forth in this Agreement, which breach is not reasonably capable of being cured or, if reasonably capable of being cured, is not cured within ten (10) days following Loomis's receipt of notice of such breach; (c) by Loomis, if there shall have been a material breach of any of the representations, warranties, covenants or other obligations of any Purchaser set forth in this Agreement, which breach is not reasonably capable of being cured or, if reasonably capable of being cured, is not cured within ten (10) days following the Purchasers' receipt of notice of such breach; (d) by either Loomis or the Purchasers, at any time after October 15, 2002 if the Closing shall not have occurred on or prior to such date; provided that the right to terminate this Agreement under this Section 6.1(d) shall not be available to any party whose breach of, or failure to fulfill any obligation under, this Agreement was the cause of or resulted in the failure of the Closing to occur on or before such date; and provided further that the right of the Purchasers to terminate this Agreement pursuant to this Section 6.1(d) shall not be available to the Purchasers in the event that Loomis has Caused the Shares to be voted for the Approved Matters and all of the conditions set forth in Section 5.1 above shall have otherwise been satisfied; 9 (e) by either the Purchasers or Loomis, in the event of the termination of the Company Purchase Agreement in accordance with its terms; (f) by Loomis, if there arises any action, suit or threatened proceeding against Loomis (for itself or on behalf of a Holder) or against any officer or director or partner of Loomis (i) challenging or seeking to restrain or prohibit the consummation of any of the transactions contemplated by this Agreement or (ii) which would cause any of the transactions contemplated by this Agreement to be rescinded following consummation; provided that the right to terminate this Agreement pursuant to this Section 6.1(f) shall not be available to Loomis if any such action, suit or threatened proceeding was a result of a breach of, or failure to fulfill any obligation under, this Agreement by Loomis; and (g) by either Loomis or the Purchasers, if a Governmental Entity shall have issued a nonappealable final order, decree or ruling or taken any other action having the effect of permanently restraining, enjoining or otherwise prohibiting the transactions contemplated by this Agreement; provided that the right to terminate this Agreement pursuant to this Section 6.1(g) shall not be available to any party whose breach of, or failure to fulfill any obligation under, this Agreement was the cause of, or resulted in, such final order, decree or ruling. 6.2 Manner and Effect of Termination. In the event of termination of this Agreement, written notice thereof shall be given to the other parties specifying the provision hereof pursuant to which such termination is made. Upon termination, this Agreement shall become null and void and of no further force or effect, and the parties hereto shall be released from all future obligations hereunder; provided, however, that this Section 6.2 and Article VI hereof shall remain in full force and effect and no party shall be relieved from liability as a result of its breach of this Agreement prior to such termination. ARTICLE VII MISCELLANEOUS 7.1 Notices. All notices, demands, requests, consents, approvals or other communications (collectively, "Notices") required or permitted to be given hereunder, or that are given with respect to this Agreement, shall be in writing and shall be personally delivered by reputable "next business day" air courier service with charges prepaid, or transmitted by hand delivery or facsimile, addressed as set forth below, or to such other address as such party shall have specified most recently by written notice. Notice shall be deemed given on the date of service or transmission if personally served or transmitted by facsimile. Notice otherwise sent as provided herein shall be deemed given on the next business day following delivery of such notice to a reputable "next business day" air courier service. 10 If to Loomis, to: Loomis, Sayles & Company, L.P. 555 California St., Suite 3300 San Francisco, CA 94104 Attn: Sandy Tichenor, Executive Vice President and General Counsel Telephone: (415) 956-2424 Fax: (415) 364-5396 with copies (which shall not constitute notice) to: Ropes & Gray One International Place Boston, MA 02110 Attn: Christopher A. Klem, Esq. Telephone: (617) 951-7000 Fax: (617) 951-7050 If to the Purchasers, to: In the case of Nautilus Acquisition, L.P.: c/o Credit Suisse First Boston Private Equity 11 Madison Avenue New York NY 10010 Attn: Ari Benacerraf Telephone: (646) 935-7190 Fax: (212) 538-041 In the case of C/R Marine Domestic Partnership, L.P., C/R Marine Non-U.S. Partnership, L.P. C/R Marine Coinvestment, L.P. or C/R Marine Coinvestment II, L.P.: c/o Riverstone Holdings, LLC 712 Fifth Avenue, 19th Floor New York, NY 10019 Attn: John Lancaster Telephone: (212) 993-0088 Fax: (212) 993-0077 with copies (which shall not constitute notice) to: Weil, Gotshal & Manges LLP 767 Fifth Avenue New York, NY 10153 Attn: David M. Blittner Telephone: (212) 310-8000 Fax: (212) 310-8007 11 7.2 GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY, INTERPRETED UNDER, AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, REGARDLESS OF THE LAWS THAT MIGHT OTHERWISE GOVERN UNDER APPLICABLE PRINCIPLES OF CONFLICTS OF LAW THEREOF. 7.3 ENFORCEMENT OF AGREEMENT; WAIVER OF JURY TRIAL; ETC. The parties agree that irreparable damage would occur in the event that any of the provisions of this Agreement were not performed in accordance with their specific terms or were otherwise breached. It is accordingly agreed that the parties shall be entitled to an injunction or injunctions to prevent breaches of this Agreement and to enforce specifically the terms and provisions of this Agreement in any court of the United States or any state court, without bond or other security being required, this being in addition to any other remedy to which they are entitled at law or in equity. IN ADDITION, EACH OF THE PARTIES HERETO (A) CONSENTS TO SUBMIT ITSELF TO THE PERSONAL JURISDICTION OF ANY FEDERAL COURT LOCATED IN THE COMMONWEALTH OF MASSACHUSETTS OR THE STATE OF NEW YORK OR ANY MASSACHUSETTS OR NEW YORK STATE COURT IN THE EVENT ANY DISPUTE ARISES OUT OF THIS AGREEMENT OR ANY OF THE TRANSACTIONS CONTEMPLATED HEREBY AND (B) AGREES THAT IT WILL NOT ATTEMPT TO DENY OR DEFEAT SUCH PERSONAL JURISDICTION BY MOTION OR OTHER REQUEST FOR LEAVE FROM ANY SUCH COURT. EACH PARTY HEREBY WAIVES TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN RESPECT TO ANY LITIGATION DIRECTLY OR INDIRECTLY ARISING OUT OF, UNDER OR IN CONNECTION WITH THIS AGREEMENT OR ANY TRANSACTION CONTEMPLATED HEREBY. 7.4 Attorneys' Fees. A party in breach of this Agreement shall, on demand, indemnify and hold harmless the other party for and against all reasonable out-of-pocket expenses, including legal fees, incurred by such other party by reason of the enforcement and protection of its rights under this Agreement. The payment of such expenses is in addition to any other relief to which such other party may be entitled. 7.5 Entire Agreement. This Agreement (including all agreements entered into pursuant hereto and all certificates and instruments delivered pursuant hereto) and the schedules hereto constitute the entire agreement of the parties with respect to the subject matter hereof and supersede all prior and contemporaneous agreements, representations, understandings, negotiations and discussions between the parties, whether oral or written, with respect to the subject matter hereof. 7.6 Modifications and Amendments. No amendment, modification or termination of this Agreement shall be binding unless executed in writing by each party hereto. 12 7.7 Waivers and Extensions. Any party to this Agreement may waive any condition, right, breach or default that such party has the right to waive, provided that such waiver will not be effective against the waiving party unless it is in writing, is signed by such party, and specifically refers to this Agreement. Waivers may be made in advance or after the right waived has arisen or the breach or default waived has occurred. Any waiver may be conditional. No waiver of any breach of any agreement or provision herein contained shall be deemed a waiver of any preceding or succeeding breach thereof nor of any other agreement or provision herein contained. No waiver or extension of time for performance of any obligations or acts shall be deemed a waiver or extension of the time for performance of any other obligations or acts. 7.8 Titles and Headings; Rules of Construction. Titles and headings of sections of this Agreement are for convenience only and shall not affect the construction of any provision of this Agreement. Unless the context otherwise requires: (a) a term has the meaning assigned to it; (b) "or" is not exclusive; (c) "including" means including without limitation; and (d) words in the singular include the plural and words in the plural include the singular. The parties hereto have participated jointly in the negotiation and drafting of this Agreement and, in the event an ambiguity or question of intent or interpretation arises, this Agreement shall be construed as jointly drafted by the parties hereto and no presumption or burden of proof shall arise favoring or disfavoring any party by virtue of the authorship of any provision of this Agreement. 7.9 Press Releases and Public Announcements. All public announcements or public disclosures relating to this Agreement and the transactions contemplated hereby shall be made only if mutually agreed upon by Loomis and the Purchasers, except to the extent such disclosure is, in the opinion of counsel, required by Law or by stock exchange regulation, provided that Loomis hereby consents to the publication by the Purchasers or their affiliates of a customary "tombstone" advertisement announcing the transactions contemplated by this Agreement after the consummation of this Agreement. The parties intend that there will be a public announcement made upon the execution of this Agreement and the Company Purchase Agreement, the content of which shall be mutually agreed upon. Communications between Loomis and the Holders of the Managed Accounts following the announcement of the transactions contemplated by this Agreement, consistent with their investment management agreements and with normal practice, shall not be deemed a breach of this Agreement. 7.10 Assignment; No Third Party Beneficiaries. This Agreement and the rights, duties and obligations hereunder may not be assigned or delegated by Loomis without the prior written consent of the Purchasers, and may not be assigned or delegated by any Purchaser without Loomis's prior written consent, except that without such consent this Agreement may be assigned or delegated, in whole or in part, by any Purchaser (or by any assignee referred to in this provision) to any Permitted Transferee (as defined in the Company Purchase Agreement). Except as set forth above, any assignment or delegation of rights, duties or obligations hereunder made without the prior written consent of the Purchasers, shall be void and of no effect. This Agreement and the provisions hereof shall be binding upon and shall inure to the benefit of each of the 13 parties and their respective successors and permitted assigns. This Agreement is not intended to confer any rights or benefits on any third persons. 7.11 Severability. This Agreement shall be deemed severable, and the invalidity or unenforceability of any term or provision hereof shall not affect the validity or enforceability of this Agreement or of any other term or provision hereof. Furthermore, in lieu of any such invalid or unenforceable term or provision, the parties hereto intend that there shall be added as a part of this Agreement a provision as similar in terms to such invalid or unenforceable provision as may be possible and be valid and enforceable. 7.12 Counterparts. This Agreement may be executed in counterparts, each of which shall be deemed an original, but all of which taken together shall constitute one and the same instrument. 7.13 Proxy Statement. The Purchasers shall request that the Company provide Loomis with all drafts of the Proxy Statement (as defined in the Company Purchase Agreement) and shall otherwise provide Loomis with all such drafts provided to the Purchasers, and shall request that the Company provide Loomis with a reasonable opportunity to review and comment on any portion of such drafts of such Proxy Statement that expressly relate to Loomis and the Loomis Purchase. 7.14 Expenses. In the event the Company Requisite Vote (as defined in the Company Purchase Agreement) is obtained and upon the transfer of the Deliverable and so long as Loomis is in compliance with this Agreement at the Closing, the Purchasers agree to pay or reimburse all documented out-of-pocket legal expenses incurred by Loomis in connection its negotiation and consummation of this Agreement, up to a maximum of $200,000. Payment or reimbursement of expenses pursuant to this Section 7.15 shall be made promptly after receipt of invoices in reasonably sufficient detail with copies of relevant backup invoices. [The remainder of this page is intentionally left blank] 14 IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed, all as of the date first written above. LOOMIS, SAYLES & COMPANY, L.P., in its capacity as investment advisor to the Holders By: Loomis, Sayles Voting, Inc., its general partner By: _______________________________________________ Name: Title: By: _______________________________________________ Name: Title: NAUTILUS ACQUISITION, L.P. By: Nautilus Intermediary, L.P., its general partner By: _______________________________________________ Name: Title: Authorized Signatory C/R MARINE DOMESTIC PARTNERSHIP, L.P. By: C/R Marine GP Corp., its general partner By: _______________________________________________ Name: Pierre Lapeyre Title: Vice President 15 C/R MARINE NON-U.S. PARTNERSHIP, L.P. By: C/R Marine GP Corp., its general partner By: _______________________________________________ Name: Pierre Lapeyre Title: Vice President C/R MARINE COINVESTMENT, L.P. By: C/R Marine GP Corp., its general partner By: _______________________________________________ Name: Pierre Lapeyre Title: Vice President C/R MARINE COINVESTMENT II, L.P. By: C/R Marine GP Corp., its general partner By: _______________________________________________ Name: Pierre Lapeyre Title: Vice President 16 EX-3 5 dex3.txt EXHIBIT 3 Exhibit 3 Stockholders Agreement Term Sheet The closing of the proposed transaction would be subject to the negotiation and execution by the Investors, the Company, Gerhard Kurz and potentially certain management stockholders of a mutually satisfactory Stockholders Agreement. The Stockholders Agreement would, in any event provide for the following (in addition to such other such terms as may be agreed): 1 Board Representation: DLJMB, Riverstone's domestic investment vehicle ("Riverstone U.S.", and together with Riverstone's two other investment vehicles, the "Riverstone Entities") and the management stockholders will agree to vote their shares to ensure that the Board of Directors will consist of 10 members and will be constituted as follows: DLJMB will be entitled to designate 4 of the directors, Riverstone U.S. will be entitled to designate 2 of the directors (together, the "Investor Members"), 3 of the directors will be independent directors (i.e., non-investor designated directors), which initially will consist of continuing directors (together with any directors designated to the board to fill a vacancy caused by the disqualification, death, removal or resignation of one of the independent directors, the "Continuing Directors"), and the Chief Executive Officer of the Company will serve as a director. Each of the designated directors will be designated in a manner consistent with the ruling request made to the United States Coast Guard in connection with the proposed transaction. In the event of the death, disability, resignation or removal of an independent director, DLJMB and Riverstone U.S. will mutually agree upon an independent director (that is a non-investor designated director) to fill the vacancy. For a period of one year following the closing of the transaction, the initial Continuing Directors that are non-investor designated will not be removed except for cause. In the event that DLJMB owns less than 50%, but more than 10%, of the shares of Common Stock initially purchased by it, DLJMB shall be entitled to designate only 2 directors. In the event DLJMB owns less than 10%, but more than 5%, of shares of Common Stock initially purchased by it, it shall be entitled to designate only 1 director. In the event DLJMB owns less than 5% of the shares of Common Stock initially purchased by it, it shall no longer be entitled to designate any directors. 2 In the event that the Riverstone Entities, collectively, own less than 50%, but more than 10%, of the shares of Common Stock initially purchased by them, Riverstone U.S. shall be entitled to designate only 1 director. In the event the Riverstone Entities own less than 10% of the shares of Common Stock initially purchased by them, Riverstone U.S. shall no longer be entitled to nominate any directors. Each of Riverstone and CSFB will be represented on the Board's Audit and Compensation Committees Investor Members will be compensated for their services in an amount and manner consistent with other Directors of the Company. For a period of one year, (i) the Investors will not take any action that will cause the Continuing Directors to be less than a majority of the total number of independent directors on the Board of Directors and (ii) to the extent an annual meeting is held for the election of the directors, the Investors will vote for the election of the Continuing Directors. Unanimous Vote: So long as the Riverstone Entities or DLJMB own shares of Common Stock equaling at least 15% of the outstanding shares of Common Stock of the Company, determined on a fully-diluted basis, the unanimous vote of the Investor Members will be required for the following actions: [X] Company share repurchases [X] Affiliated Party Transactions (as described in section (c) of Article XIV of the proposed Amended Certificate of Incorporation) [X] Equity or debt financings of the Company [X] Amendments to Charter and by-laws, including any changes to the number of Directors Demand Registration Rights: The Investors will have the right to require the Company to effect up to six 6 demand registrations on an appropriate form selected by the Company and the Investors demanding registration, provided that shares 3 of Common Stock to be offered in any such registration have an aggregate offering price in excess of $20 million. DLJMB will be entitled to request four 4 demand registrations. Riverstone will be entitled to request two 2 demand registrations. If a demand registration is to involve an underwritten public offering, the Investor requesting such registration will have the right to select the underwriters in such underwritten demand registration. Notwithstanding the foregoing, the Company shall not be required to effect two demand registrations pursuant to this agreement in any nine-month period. The Company will have customary "black-out" rights to delay a registration. "Piggy-Back" Registration Rights: The Investors will have unlimited piggyback registration rights, subject to customary pro rata cut-backs based on the number of shares requested to be covered under such registration. Holdback: The Investors will agree not to offer, sell or transfer any shares during the 14 days prior to the filing of a registration statement or prospectus or any amendments thereto (except for shares, if any, sold in that public offering) and during a period thereafter equal (i) 180 days, or (ii) such other period as reasonably required by the managing underwriters of an underwritten offering. Registration Expenses: All fees and expenses (including reasonable fees and expenses of counsel) in connection with a registration will be paid by the Company, other than underwriting fees and discounts. Termination of Existing Registration Rights: The Company will cause all registration rights agreements to which it is currently a party to be terminated. Right of First Refusal; Tag-Along: The parties to the Stockholders Agreement will be subject to rights of first refusal and tag-along rights in any proposed transfer of Common Stock owned by them. Specifically, the Investors will have pro rata tag-along rights in any proposed transfer of any Common Stock owned by the parties to the Stockholders Agreement. The Investors would have the right of first 4 refusal to purchase any shares proposed to be transferred by the other parties on a pro rata basis (based on the number of shares held by such Investor). The rights of first refusal and tag-along right will be subject to limited customary exceptions, including Rule 144 sales, sales pursuant to demand or piggy-back registration rights and sales to certain permitted transferees. Minority Protections: For a period of two years or until a Qualified Minority Transaction or Business Combination is effected in compliance with the Company's certificate of incorporation is consummated, at any time a Control Person (as defined in the Company's certificate of incorporation, as amended) beneficially owns 90% or more of the outstanding Common Stock, the Company will not enter into a Business Combination (including a Section 253 short-form merger) without the approval of holders of a majority of the outstanding shares of Common Stock held by the Minority Holders (as defined in the Company's certificate of incorporation, as amended), provided, however, that such approval shall not be required for (x) a merger described in clause (ii) of paragraph (e) of Article XIV of the Company's certificate of incorporation, as amended, or (y) a Qualified Minority Transaction. A "Qualified Minority Transaction" shall mean a Business Combination that follows a public tender offer by a Control Person where (i) the Control Person purchases all shares that are validly tendered and (ii) to the extent that a Control Person has purchased shares in the six month period prior to the consummation of the tender offer, the offer price is, at a minimum, the highest price per share paid by such Control Person or affiliate of such Control Person in the six month period prior to the commencement of the tender offer. Management Stockholders: Gerhard Kurz and potentially certain other members of management will be parties to the Stockholders Agreement. The Stockholders Agreement will impose certain customary transfer limitations and repurchase rights with respect to such parties. 5 Jones Act Protection: No party to the Stockholders Agreement may transfer shares of Common Stock owned by it to the extent that such transfer would result in the Company not meeting the requirements of Section 2 of the Shipping Act, 1916, as amended, for the ownership and operation of vessels in the United States coastwise trade. Transfer of Rights: Subject to the transfer restrictions discussed above, the rights and obligations of the Investors under the Stockholders Agreement will be assigned in connection with any transfer of shares; provided, however, that in no event shall the right to designate a member of the board of directors be assignable; provided further, that the registration rights are assignable only if the transferee (together with its affiliates) is acquiring at least 500,000 shares of Common Stock (assuming exercise of all warrants). Formation of Holding Company: In the event that the holders of a majority of the shares of Common Stock subject to the Stockholders Agreement desire to acquire any or all of the remaining shares of Common Stock of the Company (by tender offer, merger or otherwise), then the Investors will contribute all shares of Common Stock owned by them to a corporation to be formed for such purpose. In the event of any such transaction, each of DLJMB and the Riverstone Entities will have the option to purchase its Pro Rata Portion of the shares of Common Stock to be purchased. Notwithstanding the foregoing, such transaction will be conducted in a manner such that, after such transaction, the Company would not fail to meet the requirements of Section 2 of the Shipping Act, 1916, as amended, for the ownership and operation of vessels in the United States Coastwise trade. "Pro Rata Portion" shall mean the total number of shares being acquired multiplied by a fraction, the numerator of which is the number of shares of Common Stock owned by such Investor, and the denominator of which is the total number of shares of Common 6 Stock owned, in the aggregate, by DLJMB and the Riverstone Entities. Fee Letter: CSFB and Riverstone will participate on a pro rata basis in any fees paid in connection with the Fee Letter as defined in the Stock Purchase Agreement between Seabulk and the Investors Termination: Except with respect to registration rights, the Stockholders Agreement will terminate upon a Change of Control of the Company. The Stockholders Agreement would not terminate upon a future public offering of shares of Common Stock of the Company. With respect to registration rights, such rights will terminate upon the earlier of (i) the seventh anniversary or (ii) when, with respect to each holder of registrable securities, such holder owns less than 3% of the shares of Common Stock (including upon exercise of all warrants) initially purchased by such holder. A "Change of Control" occurs when a person or group (as determined pursuant to Rule 13d-3 of the Exchange Act) other than affiliates of the Investors (with respect to a group, all such members shall be non-affiliates) acquires more than 50% of the outstanding shares of Common Stock. 7 EX-4 6 dex4.txt EXHIBIT 4 Exhibit 4 June 13, 2002 Gerhard E. Kurz Chief Executive Officer Seabulk International, Inc. 2200 Eller Drive Fort Lauderdale, Florida 33316 Dear Gerhard: Reference is hereby made to that certain Stock Purchase Agreement, dated June 13, 2002, by and among Seabulk International, Inc. (which, together with its subsidiaries and affiliates is hereinafter referred to as the "Company") and the Investors listed on Schedule I thereto (the "Purchase Agreement"). Capitalized terms that appear herein that are not otherwise defined shall have the meaning ascribed to them in the Purchase Agreement. This letter agreement (this "Agreement") confirms our understanding that the Company has agreed, for good and valuable consideration, the sufficiency of which is hereby acknowledged, to pay to (i) Carlyle/Riverstone Energy Partners, L.P. a one-time transaction fee of $1,000,000 (the "Riverstone Fee"), upon the Closing, and (ii) Credit Suisse First Boston Corporation a one-time transaction fee of $2,000,000 (the "CSFB Fee" and together with the Riverstone Fee, the "Transaction Fee"), upon the Closing. For the avoidance of doubt, the Transaction Fee shall only be paid if the Closing occurs. The validity and interpretation of this Agreement shall be governed by, and construed and enforced in accordance with, the laws of the State of New York applicable to agreements made and to be fully performed therein (excluding the conflicts of law rules). This Agreement may be executed in counterparts, each of which shall be deemed an original, but all of which taken together shall constitute one and the same instrument. The benefits of this Agreement shall inure to the parties hereto, their respective successors and assigns and the obligations and liabilities assumed in this Agreement by the parties hereto shall be binding upon their respective successors and assigns. Very truly yours, CREDIT SUISSE FIRST BOSTON CORPORATION By: /s/ Ari Benacerraf ----------------------------------------- Name: Ari Benacerraf Title: CARLYLE/RIVERSTONE ENERGY PARTNERS, L.P. By: /s/ Pierre Lapeyre ----------------------------------------- Name: Pierre Lapeyre Title: Managing Director ACCEPTED AND AGREED TO AS OF THE DATE FIRST ABOVE WRITTEN: SEABULK INTERNATIONAL, INC. By: /s/ Gerhard E. Kurz ----------------------------------------- Name: Gerhard E. Kurz Title: Chief Executive Officer 2 EX-5 7 dex5.txt EXHIBIT 5 Exhibit 5 C/R MARINE GP CORP. c/o Riverstone Holdings, LLC 712 Fifth Avenue 19th Floor New York, New York 10019 July 16, 2002 Midstream Holdings, LLC 520 Madison Avenue 17th Floor New York, NY 10022 Ladies and Gentlemen: As discussed, you will organize a limited partnership ("Midstream Delta") to effect your participation, on the terms and conditions described herein, in the investment in Seabulk International Inc. ("Seabulk") to be made by C/R Marine Coinvestment II, L.P. ("Coinvest II"). Coinvest II is one of the investment partnerships (together with Coinvest II, the "C/R Marine Investors") controlled by C/R Marine GP Corp. (the "General Partner"). You or your wholly-owned subsidiary will control Midstream Delta as its sole general partner, will at all times own at least 50% in interest of Midstream Delta, and will contribute at least 50% of the capital required by Midstream Delta. You will provide us with reasonable prior written notice of any change in your ownership. The remaining interests in Midstream Delta will be held by not more than 10 other persons at any time ("Delta Investors"), each of which will, at the time of investment, be an officer or employee of, or an exclusive consultant to, Midstream Partners, LLC, Poten & Partners, Inc. or their respective affiliates or exclusive consultants (or be an investment vehicle owned and controlled by such officer, employee or consultant). Each of the Delta Investors will be an "accredited investor" within the meaning of Regulation D under the Securities Act of 1933, as amended, and each Delta Investor will be disclosed to the General Partner for its reasonable approval, in view of applicable regulatory considerations, prior to admission to Midstream Delta. Neither you nor any Delta Investor will be permitted to transfer any part of his, her or its interest in Midstream Delta other than (i) to other owners of Midstream Delta, or (ii) upon the written consent of the General Partner, which may be withheld in its sole discretion. At all times, at least 85% in interest of Midstream Delta will be owned by U.S. citizens within the meaning of the Shipping Act, 1916. The General Partner may at any time require that Midstream Delta excuse or obtain the withdrawal of any non-U.S. citizen if such excuse or withdrawal, as determined by the General Partner in its sole discretion, is necessary or advisable in connection with obtaining a favorable ruling of the U.S. Coast Guard in respect of the Seabulk investment or otherwise in connection with compliance with the Shipping Act, 1916 and related maritime laws. In connection with any determination by the General Partner pursuant to the foregoing sentence, the General Partner will, in consultation with legal counsel as the General Partner may deem desirable, use commercially reasonable efforts to take into account the relative amounts available for investment by each C/R Marine Investor and the manner in which any given compliance issue has arisen. In the event that any excuse or withdrawal from Midstream Delta is required, the affected partner of Midstream Delta may transfer its interest in Midstream Delta (i) to a permitted transferee as described in the preceding paragraph or (ii) to any person designated to the General Partner in writing prior to the admission of Midstream Delta to Coinvest II (a "Designated Transferee"), subject to the following: (A) the sum of (x) the number of beneficial owners of Coinvest II and (y) the number of Designated Transferees will not exceed 10, and (B) each Designated Transferee (at the time of designation and at the time of any proposed transfer to such Designated Transferee) must be reasonably acceptable to the General Partner in view of applicable regulatory considerations. Midstream Delta will be the sole limited partner of Coinvest II. As such limited partner, Midstream Delta will commit $2 million to Coinvest II and may, as provided in the next sentence, commit up to an additional $2 million to Coinvest II. The General Partner will provide written notice to Midstream Delta at least five business days but not more than 10 business days prior to the issuance of a capital call to the limited partners of the C/R Marine Investors, and within two business days of receipt of such notice, Midstream Delta will confirm to the General Partner in writing the amount, if any, of its additional commitment, and such additional commitment, if any, together with the $2 million committed as of the date of this letter (collectively, "the Midstream Commitment") will be binding on Midstream Delta from and after delivery by Midstream Delta of its written confirmation. The Midstream Commitment will be applied, when called by the General Partner, toward the purchase by Coinvest II of warrants and shares of common stock of Seabulk on the terms set forth in the Stock Purchase Agreement, dated as of June 13, 2002 (the "Stock Purchase Agreement"), among Seabulk, Coinvest II and the other investors party thereto (the "Other Investors") and in the Securities Purchase Agreement, dated as of June 13, 2002 (the "Securities Purchase Agreement"), among Loomis, Sayles & Company, Coinvest II and the Other Investors. In addition, from and after the date hereof, to the extent not reimbursed from other sources, Midstream Delta will bear the reasonable expenses incurred, including attorneys' fees, in organizing and maintaining Coinvest II. As the sole limited partner of Coinvest II, Midstream Delta will not be subject to any management fee, carried interest or other charge. Coinvest II will acquire, hold and dispose of its portfolio investments in parallel with the C/R Marine Investors, on equivalent transaction terms, except that, upon the written request of Midstream Delta delivered on or after the two-year anniversary of Coinvest II's initial investment in Seabulk, and subject to any then-applicable legal, tax, regulatory or contractual restrictions, the General Partner will cause Coinvest II to distribute to Midstream Delta all portfolio investments, including all warrants and shares of common stock of Seabulk, then held by Coinvest II (the "Distribution"), which warrants and shares, to the extent applicable, will be subject to the terms and conditions of the shareholders' agreement then binding upon Coinvest II. For so long as Midstream Delta remains a limited partner of Coinvest II, but not following the Distribution, Midstream Delta will be entitled to participate, through Coinvest II, in any further transactions engaged in by the C/R Marine Investors (or, to the extent permitted by applicable law, any of their affiliates) in respect of Seabulk, in an amount no less than Coinvest II's pro rata portion (based on the investments made by each C/R Marine Investor entity in the transactions contemplated by the Stock Purchase Agreement and the Securities Purchase Agreement) of the investments to be made by each C/R Marine Investor (or, to the extent permitted by applicable law, any of their affiliates). 2 Management and control over Coinvest II, including with respect to its investments, will be vested solely in us, as the General Partner. You and we will cooperate in preparing and entering into, reasonably promptly after the date hereof, a partnership agreement for Coinvest II reasonably satisfactory to each of us in accordance with the foregoing terms and otherwise including customary provisions. Please indicate your agreement with the foregoing by signing as indicated below and returning the executed copy to us. C/R MARINE GP CORP. /s/ Jim H. Derryberry ----------------------------- By: Jim H. Derryberry Title: Vice President Seen and Agreed: - --------------- MIDSTREAM HOLDINGS, LLC /s/ Donna Weiss - -------------------------- By: Donna Weiss Title: Authorized Person 3 EX-6 8 dex6.txt EXHIBIT 6 Exhibit 6 JOINT FILING AGREEMENT In accordance with Rule 13d-1(k) under the Securities Exchange Act of 1934, as amended, the undersigned hereby agree to the joint filing with all other Reporting Persons (as such term is defined in the Schedule 13D referred to below) on behalf of each of them of a statement on Schedule 13D (including amendments thereto) with respect to the common stock, par value $0.01 per share, of Seabulk International, Inc., a Delaware corporation, and that this Agreement may be included as an Exhibit to such joint filing. This Agreement may be executed in any number of counterparts, all of which taken together shall constitute one and the same instrument. IN WITNESS WHEREOF, the undersigned hereby execute this Agreement as of the 16th day of July, 2002. C/R Marine Domestic Partnership, L.P. By: C/R Marine GP Corp. its General Partner By: /s/ Daniel A. D'Aniello ------------------------------- Name: Daniel A. D'Aniello Title: President C/R Marine Non-U.S. Partnership, L.P. By: C/R Marine GP Corp. its General Partner By: /s/ Daniel A. D'Aniello ------------------------------- Name: Daniel A. D'Aniello Title: President C/R Marine Coinvestment, L.P. By: C/R Marine GP Corp. its General Partner By: /s/ Daniel A. D'Aniello ------------------------------- Name: Daniel A. D'Aniello Title: President C/R Marine Coinvestment II, L.P. By: C/R Marine GP Corp. its General Partner By: /s/ Daniel A. D'Aniello ------------------------------- Name: Daniel A. D'Aniello Title: President C/R Marine GP Corp. By: /s/ Daniel A. D'Aniello ------------------------------- Name: Daniel A. D'Aniello Title: President -----END PRIVACY-ENHANCED MESSAGE-----