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UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON D.C. 20549
SCHEDULE 13D
Under the Securities Exchange Act of 1934
(Amendment No. ___)*
TRANSCOASTAL MARINE SERVICES, INC.
(Name of Issuer)
COMMON STOCK, PAR VALUE $.001 PER SHARE
(Title of Class of Securities)
893537100
(CUSIP Number)
Fred E. Gallander, Jr.
4001 Woodland Highway
New Orleans, Louisiana 70131
(504) 394-1890
(Name, Address and Telephone Number of
Person Authorized to Receive Notices and Communications)
AUGUST 1, 1998
(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 which is the subject of this Schedule 13D and is filing this
Schedule because of Section 240.13d-1(a), Section 240.13d-1(f) or Section
240.13d-1(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 Section 240.13d-7(b) for
other parties to whom copies are to be sent.
*The remainder of this cover page shall be filled out for a reporting person's
initial filing on this form with respect to the subject class of securities, and
for any subsequent amendment containing information which would alter
disclosures provided in a prior cover page.
The information required on the remainder of this cover page shall not be deemed
to be "filed" for the purpose of Section 18 of the Securities Exchange Act of
1934 ("Act") or otherwise subject to the liabilities of that section of the Act
but shall be subject to all other provisions of the Act (however, see the
Notes).
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CUSIP NO. 893537100 SCHEDULE 13D PAGE 2 OF 10
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1) Name of Reporting Person Fred E. Gallander, Jr.
I.R.S. Identification No. of Above Person
2) Check the Appropriate Box if a Member of a Group (a) [ ]
(b) [X]
3) SEC Use Only
4) Source of Funds 00(1)
5) Check if Disclosure of Legal Proceedings Is
Required Pursuant to Items 2(d) or 2(e) N/A
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(1) On August 1, 1998, TransCoastal Marine Services, Inc. ("Issuer") entered
into a Stock Purchase and Merger Agreement (the "Agreement") to acquire Dickson
GMP International, Inc. and four affiliated companies (the "Dickson Group")
which specialize in the fabrication of production systems that incorporate
sophisticated piping, electrical and instrumentation components used in the oil
and gas, refinery, petrochemical and chemical industries. Under the terms of the
Agreement, Issuer acquired all of the outstanding stock of the Dickson Group for
$10 million in cash and approximately 1.3 million shares of common stock, $.001
par value per share (the "Common Stock"), of Issuer. In addition, the Agreement
provided the potential for the Dickson Group to receive an additional $7.3
million in cash and approximately 0.3 million shares of Issuer Common Stock if
it achieved certain financial targets by the third quarter of 1999. Mr.
Gallander was an 85% shareholder of the Dickson Group. On May 18, 1999, Issuer
finalized the early settlement of the Dickson Group earnout. Mr. Gallander
believes that the earnout was settled in advance due to management's belief that
the financial targets set forth in the Agreement would be achieved by or before
the third quarter of 1999 and Issuer's desire to reduce the overall cash
commitment required. The terms of the settlement included a reduction from a
cash payment of $7.3 million to $4.7 million, and the issuance to the former
Dickson Group shareholders of 400,000 shares of Issuer Common Stock, 140 shares
of Issuer Series A Preferred Stock with a redemption price equal to $1,000 per
share and 1,680 shares of Issuer Series B Convertible Preferred Stock which was
converted automatically into 400,000 shares of Issuer Common Stock when the
stockholders of Issuer approved the issuance of such Common Stock at the 1999
annual meeting of stockholders. The Agreement is incorporated as Exhibit 1
hereto by reference to Exhibit 10.3 to the Form 8-K filed by Issuer on September
15, 1998, Commission File No. 000-23225. On August 31, 1998, the Parties to the
Agreement entered into the First Amendment to Stock Purchase and Merger
Agreement (the "Amendment"). A copy of the Amendment is filed herewith as
Exhibit 2. A copy of the Earnout Settlement Agreement is filed herewith as
Exhibit 3.
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CUSIP NO. 893537100 SCHEDULE 13D PAGE 3 OF 10
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6) Citizenship or Place of Organization U.S.A.
Number of Shares (7) Sole Voting Power 2,100,000
Beneficially Owned (8) Shared Voting Power 0
by Each Reporting (9) Sole Dispositive Power 1,785,000
Person with (10) Shared Dispositive Power 0
11) Aggregate Amount Beneficially Owned by
Each Reporting Person 2,100,000
12) Check Box if the Aggregate Amount in Row (11)
Excludes Certain Shares [ ]
13) Percent of Class Represented by Amount in Row (11) 18.7%
14) Type of Reporting Person IN
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CUSIP NO. 893537100 SCHEDULE 13D PAGE 4 OF 10
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PRELIMINARY STATEMENT
This statement on Schedule 13D is filed on behalf of the Reporting
Person, who is the beneficial owner of more than 5% of the Common Stock (as
defined below) of TransCoastal Marine Services, Inc. (the "Issuer") and has been
a member of the Board of Directors of Issuer. The filing of this statement on
Schedule 13D shall not be deemed an acknowledgment or admission by the Reporting
Person that such a statement is required to be filed pursuant to Section
240.13d-1, or otherwise, or that the Reporting Person holds the securities
reported herein with a purpose or effect of changing or influencing the control
of Issuer, or in connection with or as a participant in any transaction having
that purpose or effect. Neither does the filing of this statement on Schedule
13D constitute an acknowledgment or admission by the Reporting Person that the
Reporting Person is not eligible to file a statement on Schedule 13G, pursuant
to Section 240.13d-1(c), as a person who, among other things, has not acquired
such securities with any purpose, or with the effect of, changing or influencing
the control of Issuer, or in connection with or as a participant in any
transaction having that purpose or effect.
ITEM 1. SECURITY AND ISSUER.
This statement on Schedule 13D relates to the common stock, par value
$.001 per share (the "Common Stock"), of TransCoastal Marine Services, Inc., a
Delaware corporation. The address of the principal executive offices of Issuer
is 4900 Woodway, Suite 500, Houston, Texas 77056.
ITEM 2. IDENTITY AND BACKGROUND.
This statement is filed by Fred E. Gallander, Jr., an individual whose
address is 4001 Woodland Highway, New Orleans, Louisiana 70131. Mr. Gallander is
presently employed by Dickson GMP International, Inc., a wholly owned subsidiary
of Issuer, in the position of President. The principal place of business of this
entity is located at 4001 Woodland Highway, New Orleans, Louisiana 70131.
During the last five years, Mr. Gallander has not 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, federal or state securities laws or finding
any violation with respect to such laws.
Mr. Gallander is a U.S. citizen.
ITEM 3. SOURCE AND AMOUNT OF FUNDS OR OTHER CONSIDERATION.
On August 1, 1998, Issuer entered into a Stock Purchase and Merger
Agreement (the "Agreement") to acquire Dickson GMP International, Inc. and four
affiliated
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CUSIP NO. 893537100 SCHEDULE 13D PAGE 5 OF 10
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companies (the "Dickson Group") which specialize in the fabrication of
production systems that incorporate sophisticated piping, electrical and
instrumentation components used in the oil and gas, refinery, petrochemical and
chemical industries. Under the terms of the Agreement, Issuer acquired all of
the outstanding stock of the Dickson Group for $10 million in cash and
approximately 1.3 million shares of Issuer Common Stock. In addition, the
Agreement provided the potential for the Dickson Group to receive an additional
$7.3 million in cash and approximately 0.3 million shares of Issuer Common Stock
if it achieved certain financial targets by the third quarter of 1999. Mr.
Gallander was an 85% shareholder of the Dickson Group. On May 18, 1999, Issuer
finalized the early settlement of the Dickson Group earnout. Mr. Gallander
believes that the earnout was settled in advance due to management's belief that
the financial targets set forth in the Agreement would be achieved by or before
the third quarter of 1999 and Issuer's desire to reduce the overall cash
commitment required. The terms of the settlement included a reduction from a
cash payment of $7.3 million to $4.7 million, and the issuance to the former
Dickson Group shareholders of 400,000 shares of Issuer Common Stock, 140 shares
of Issuer Series A Preferred Stock with a redemption price equal to $1,000 per
share and 1,680 shares of Issuer Series B Convertible Preferred Stock which was
converted automatically into 400,000 shares of Issuer Common Stock when the
stockholders of Issuer approved the issuance of such Common Stock at the 1999
annual meeting of stockholders. The Agreement is incorporated as Exhibit 1
hereto by reference to Exhibit 10.3 to the Form 8-K filed by Issuer on September
15, 1998, Commission File No. 000-23225. On August 31, 1998, the Parties to the
Agreement entered into the First Amendment to Stock Purchase and Merger
Agreement (the "Amendment"). A copy of the Amendment is filed herewith as
Exhibit 2. A copy of the Earnout Settlement Agreement is filed herewith as
Exhibit 3.
ITEM 4. PURPOSE OF THE TRANSACTION
On August 1, 1998, Issuer entered into the Agreement to acquire the
Dickson Group. Under the terms of the Agreement, Issuer acquired all of the
outstanding stock of the Dickson Group for $10 million in cash and approximately
1.3 million shares of Issuer Common Stock. In addition, the Agreement provided
the potential for the Dickson Group to receive an additional $7.3 million in
cash and approximately 0.3 million shares of Issuer Common Stock if it achieved
certain financial targets by the third quarter of 1999. Mr. Gallander was an 85%
shareholder of the Dickson Group. Additionally, upon closing of the above
referenced acquisition, Mr. Gallander became a member of the Board of Directors
of Issuer. On May 18, 1999, Issuer finalized the early settlement of the Dickson
Group earnout. Mr. Gallander believes that the earnout was settled in advance
due to management's belief that the financial targets set forth in the Agreement
would be achieved by or before the third quarter of 1999 and Issuer's desire to
reduce the overall cash commitment required. The terms of the settlement
included a reduction from a cash payment of $7.3 million to $4.7 million, and
the issuance to the former Dickson Group shareholders of 400,000 shares of
Issuer Common Stock, 140 shares of Issuer Series A Preferred Stock with a
redemption price equal to $1,000 per share and 1,680 shares of Issuer Series B
Convertible Preferred Stock which was converted automatically
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CUSIP NO. 893537100 SCHEDULE 13D PAGE 6 OF 10
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into 400,000 shares of Issuer Common Stock when the stockholders of Issuer
approved the issuance of such Common Stock at the 1999 annual meeting of
stockholders.
As set forth in Item 5 of this Schedule 13D, Mr. Gallander disclaims
the beneficial ownership of certain of those shares.
The purpose of the transaction reported by this Schedule 13D was and is
an investment in the securities of Issuer. Subject to market conditions and
other factors deemed relevant to him, Mr. Gallander may purchase, directly or
indirectly, additional shares of Issuer Common Stock or dispose of some or all
of such shares in open market purchases or privately negotiated transactions.
Mr. Gallander may be deemed to be, but does not acknowledge being, an
affiliate of Issuer. Mr. Gallander may from time to time consider plans or
proposals relating to: the acquisition or disposition of securities of Issuer;
extraordinary corporate transactions involving Issuer or any of its
subsidiaries; selling or transferring a material amount of assets of Issuer or
any of its subsidiaries; changing the present board of directors or management
of Issuer; materially changing the present capitalization or dividend policy of
Issuer; making other material changes in Issuer's business or corporate
structure; changing Issuer's charter, bylaws or instruments corresponding
thereto or other actions which may affect control of Issuer; causing the Issuer
Common Stock no longer to be quoted on NASDAQ; causing the Issuer Common Stock
to become eligible for termination of registration pursuant to Section 12(g)(4)
of the Securities Exchange Act of 1934, as amended (the "Exchange Act"); or
taking any action similar to any of those enumerated above.
At this time, Mr. Gallander has no plans or proposals which relate to
or would result in:
(a) any other acquisition by any person of additional securities of
Issuer, or the disposition of securities of Issuer;
(b) an extraordinary corporate transaction, such as a merger,
reorganization or liquidation, involving Issuer or any of its
subsidiaries;
(c) a sale or transfer of a material amount of assets of Issuer or any
of its subsidiaries;
(d) any other changes in the board of directors or management of
Issuer including any plans or proposals to change the number or
term of directors or to fill any vacancies on the board;
(e) any material change in the present capitalization or dividend
policy of Issuer;
(f) any other material change in Issuer's business or corporate
structure;
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CUSIP NO. 893537100 SCHEDULE 13D PAGE 7 OF 10
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(g) changes in Issuer's charter, by-laws or instruments corresponding
thereto or other actions which may impede the acquisition of
control of Issuer by any person;
(h) causing a class of securities of Issuer to be delisted from a
national securities exchange or to cease to be authorized to be
quoted in an inter-dealer quotation system of a registered
national securities association;
(i) a class of securities of Issuer becoming eligible for termination
of registration pursuant to Section 12(g)(4) of the Exchange Act;
or
(j) any action similar to any of those enumerated above.
ITEM 5. INTEREST IN THE SECURITIES OF ISSUER
(a) Based upon information provided by Issuer, 11,248,441 shares of
Common Stock were issued and outstanding as of August 11, 1999. Mr. Gallander
may be deemed to own beneficially 2,100,000 shares of Common Stock, representing
approximately 18.7% of the shares of Common Stock believed to be outstanding. By
virtue of an irrevocable proxy dated as of September 1, 1998, a form of which is
filed herewith as Exhibit 4 (the "Irrevocable Proxy"), executed in favor of Mr.
Gallander by Paul T. Gariepy, Jr., Bobby J. Frantom and Thomas G. Wright
(holders of an aggregate of 315,000 shares of Common Stock of Issuer) (the
"Stockholders"), Mr. Gallander was granted the right to vote the shares of the
Stockholders at any meeting of Issuer for a three-year period. The filing of
this Schedule 13D should not be construed as an admission that Mr. Gallander is
the beneficial owner of the 315,000 shares held by the Stockholders, and Mr.
Gallander expressly disclaims beneficial ownership of such shares pursuant to
Rule 13d-4 of the Exchange Act. If Mr. Gallander is deemed to be the beneficial
owner of these 315,000 shares, Messrs. Gariepy, Frantom and Wright may be deemed
to share the beneficial ownership with him of their respective ownership of the
315,000 shares, of which each is the record owner of 105,000 shares,
representing approximately 0.9% of the Common Stock believed to be outstanding.
(b) Mr. Gallander has sole voting power by virtue of the Irrevocable
Proxy as to 2,100,000 shares and sole dispositive power as to 1,785,000 shares.
Pursuant to Rule 13d-4 of the Exchange Act, Mr. Gallander disclaims the
beneficial ownership of the 315,000 shares of Common Stock of which he has the
sole voting power pursuant to the Irrevocable Proxy. Of the 105,000 shares of
Common Stock owned of record by each of Messrs. Gariepy, Frantom and Wright,
each has the sole power to vote or direct the vote of none of those shares and
the sole power to dispose or direct the disposition of his 105,000 shares.
(c) During the past 60 days, Mr. Gallander has not effected any
transactions involving the Common Stock of Issuer.
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CUSIP NO. 893537100 SCHEDULE 13D PAGE 8 OF 10
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(d) The 1,785,000 shares of Common Stock owned beneficially and of
record by Mr. Gallander are the community property of Mr. Gallander and his
wife, Rebecca A. Gallander. As such, Mrs. Gallander may be deemed to have the
right to receive or the power to direct the receipt of dividends from, or the
proceeds from the sale of, such securities, and such right relates to more than
5% of the issued and outstanding shares of the Common Stock of Issuer. Each of
Messrs. Gariepy, Frantom and Wright is the record owner of 105,000 shares of
Common Stock, all of which shares are reported herein as beneficially owned by
Mr. Gallander. As such, each of Messrs. Gariepy, Frantom and Wright has the
right to receive or the power to direct the receipt of dividends from, or the
proceeds from the sale of, those shares of which he is the record owner. These
interests do not relate to more than 5% of the class of Common Stock. Pursuant
to Rule 13d-4 of the Exchange Act, Mr. Gallander disclaims the beneficial
ownership of the 315,000 shares owned of record by Messrs. Gariepy, Frantom and
Wright.
(e) Not applicable.
ITEM 6. CONTRACTS, ARRANGEMENTS, UNDERSTANDINGS, OR RELATIONSHIPS WITH
RESPECT TO SECURITIES OF ISSUER.
On August 1, 1998, Issuer entered into the Agreement to acquire the
Dickson Group. Under the terms of the Agreement, Issuer acquired all of the
outstanding stock of the Dickson Group for $10 million in cash and approximately
1.3 million shares of Issuer Common Stock. In addition, the Agreement provided
the potential for the Dickson Group to receive an additional $7.3 million in
cash and approximately 0.3 million shares of Issuer Common Stock if it achieved
certain financial targets by the third quarter of 1999. Mr. Gallander was an 85%
shareholder of the Dickson Group. On May 18, 1999, Issuer finalized the early
settlement of the Dickson Group earnout. Mr. Gallander believes that the earnout
was settled in advance due to management's belief that the financial targets set
forth in the Agreement would be achieved by or before the third quarter of 1999
and Issuer's desire to reduce the overall cash commitment required. The terms of
the settlement included a reduction from a cash payment of $7.3 million to $4.7
million, and the issuance to the former Dickson Group shareholders of 400,000
shares of Issuer Common Stock, 140 shares of Issuer Series A Preferred Stock
with a redemption price equal to $1,000 per share and 1,680 shares of Issuer
Series B Convertible Preferred Stock which was converted automatically into
400,000 shares of Issuer Common Stock when the stockholders of Issuer approved
the issuance of such Common Stock at the 1999 annual meeting of stockholders.
By virtue of the Irrevocable Proxy, Mr. Gallander was granted the right
to vote the shares of the Stockholders at any meeting of Issuer for a three-year
period. The filing of this Schedule 13D should not be construed as an admission
that Mr. Gallander is the beneficial owner of the 315,000 shares held by the
Stockholders, and Mr. Gallander expressly disclaims beneficial ownership of such
shares pursuant to Rule 13d-4 of the Exchange Act. If Mr. Gallander is deemed to
be the beneficial owner of these 315,000 shares, Messrs. Gariepy, Frantom and
Wright may be deemed to share the beneficial
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CUSIP NO. 893537100 SCHEDULE 13D PAGE 9 OF 10
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ownership with him of their respective ownership of the 315,000 shares, of which
each is the record owner of 105,000 shares, representing approximately 0.9% of
the Common Stock believed to be outstanding.
ITEM 7. MATERIAL TO BE FILED AS EXHIBITS.
Exhibit 1. Stock Purchase and Merger Agreement dated August 1, 1998
(incorporated by reference to Exhibit 10.3 to the Form 8-K
filed by Issuer on September 15, 1998, Commission File No.
000-23225)
Exhibit 2. First Amendment to Stock Purchase and Merger Agreement
dated August 31, 1999
Exhibit 3. Earnout Settlement Agreement dated May 17, 1999
Exhibit 4. Form of Irrevocable Proxy
SIGNATURE
After reasonable inquiry and to the best of my knowledge and belief, I certify
that the information set forth in this statement is true, complete and correct.
/s/ Fred E. Gallander, Jr.
--------------------------------
Fred E. Gallander, Jr.
Dated: November 3, 1999
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CUSIP NO. 893537100 SCHEDULE 13D PAGE 10 OF 10
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EXHIBIT INDEX
<TABLE>
<CAPTION>
EXHIBIT
NUMBER DESCRIPTION
- ------- -----------
<S> <C>
1. Stock Purchase and Merger Agreement dated August 1, 1998 incorporated
by reference to Exhibit 10.3 to the Form 8-K filed by Issuer on
September 15, 1998, Commission File No. 000-23225)
2. First Amendment to Stock Purchase and Merger Agreement dated August 31,
1999
3. Earnout Settlement Agreement dated May 17, 1999
4. Form of Irrevocable Proxy
</TABLE>
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EXHIBIT 2
FIRST AMENDMENT TO
STOCK PURCHASE AND MERGER AGREEMENT
THIS FIRST AMENDMENT TO STOCK PURCHASE AND MERGER AGREEMENT, (this
"Amendment") is made and entered into as of the 31st day of August, 1998 by and
among TransCoastal Marine Services, Inc., a Delaware corporation ("Acquiror"),
and TransCoastal Acquisition, Inc., a Louisiana corporation, ("Acquisition
Corp."); Dickson GMP International, Inc., a Louisiana corporation ("Dickson
GMP"); Dickson Marine, Inc., a Louisiana corporation ("Dickson Marine"); Dickson
Nigeria, Ltd., a Nigerian corporation ("Dickson Nigeria"); Servicios y
Construcciones Petroleras Ventura, C.A., a Venezuelan corporation ("Servicios y
Construcciones"); Ventura Resources, Inc., a Louisiana corporation ("Ventura"),
(Dickson GMP, Dickson Marine, Dickson Nigeria, Servicios y Construcciones and
Ventura being referred to individually or collectively as the "Dickson Group");
and Fred E. Gallander, Jr. ("Gallander" or "Shareholder"); The spouse of the
Shareholder is joining in and consenting to the execution of this Amendment.
Paul T. Gariepy, Jr. ("Gariepy"), Bobby J. Frantom ("Frantom") and Thomas G.
Wright ("Wright"), each a potential Transferee, if assigned stock in the Dickson
Group pursuant to Section 11.05 of the Stock Purchase and Merger Agreement, also
join in this Amendment and, together with Gallander are referred to collectively
as "Shareholder."
WHEREAS, the parties hereto have entered into that certain Stock Purchase
and Merger Agreement, dated as of August 1, 1998 (as amended hereby, the
"Agreement") (capitalized terms used but not defined herein shall have the
respective meanings ascribed to such terms in the Agreement);
WHEREAS, the parties desire to amend certain provisions of the Agreement;
NOW THEREFORE, in consideration of the foregoing and the respective
representations, warranties, covenants and agreements contained herein, the
parties hereto agree as follows:
1. Section 2.03(b) of the Agreement is amended to read as follows:
"(b) (i) Delivery by the Acquiror of $8,800,000, less Long-Term Debt
plus accrued interest as of the Closing Date (as hereinafter defined) of
the Dickson Group as set forth on Annex III-Disclosure Schedule
("Schedule") 2.03(b)(i) as adjusted to the Closing Date, such remaining
funds to be paid by wire transfer or other immediately available funds
approved by Shareholder in accordance with the instructions set forth in
Schedule 2.03(b)(i) and (ii) issuance by the Acquiror of 1,300,000 shares
of Acquiror Common Stock to Shareholder in accordance with the sharing
ratio set forth in Schedule 2.07, as updated to the date of Closing
(collectively, the "Initial Consideration"). The number of Acquiror Common
Stock issued
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as part of the Initial Consideration pursuant to this Section 2.03(b)
hereof shall be adjusted to account for any changes in the outstanding
Acquiror Common Stock resulting from a subdivision or consolidation of
shares, share split, reverse share split, share distribution or combination
of shares or the payment of a share dividend; and"
2. The two (2) references to "$165,000" in subpart (b) of the second
sentence of Section 2.05 of the Agreement are changed to "$190,066.18".
3. The first paragraph of Section 2.07(a) of the Agreement is amended to
read as follows:
"(a) an earned payout amount (the "Earn-Out Payment") based upon the
Adjusted EBTDA of the Dickson Group for the twelve month period commencing
on the first day of September, 1998 (the "Earn-Out Period"), to be
calculated as follows:"
4. Section 2.07(a)(iii) of the Agreement is amended to read as follows:
"(iii) if the Dickson Group's Adjusted EBTDA for the Earn-Out Period
is greater than $7,000,000, the Gross Earn-Out Payment shall equal 400,000
shares of Acquiror's Common Stock and $7,268,750 in cash. The number of
shares of Acquiror Common Stock issued as part of the Contingent
Consideration pursuant to this Section 2.07 hereof shall be adjusted to
account for any change in the outstanding Acquiror Common Stock resulting
from a subdivision or consolidation of shares, share split, reverse share
split, share distribution or combination of shares or the payment of a
share dividend."
5. Section 2.07(b) of the Agreement is amended to read as follows:
"(b) In the event Gallander directs Acquiror to issue Preferred Stock
of Acquiror in lieu of cash to be paid pursuant to (a), Gallander shall
notify Acquiror one (1) Business Day preceding the Earn-Out Payment and
Acquiror shall issue to Gallander Preferred Stock of the Acquiror with
substantially the same terms as set forth in Annex IV. It is understood and
agreed that Gallander may specify the amounts of the cash portion of the
Contingent Consideration to be paid in cash or in Preferred Stock or a
combination of cash and Preferred Stock, in any portions as Shareholder in
his sole and absolute discretion may determine."
6. Section 2.08(b) of the Agreement is amended to read as follows:
"(b) If the Shareholder or Shareholder Representative fail to object
to the Acquiror's calculation of Adjusted EBTDA and/or the Net Earn-Out
Payment in the manner set forth in Section 2.08(a), Acquiror shall make a
payment to the Shareholder or Shareholder Representative in cash and shares
pro rata in accordance with Schedule 2.07, as updated to
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the date of Closing, of an amount equal to the Net Earn-Out Payment (as set
forth in Annex II hereto) as calculated in accordance with the Earn-Out
Report (unless Adjusted EBTDA is not greater than $4,000,000 in which case
no payment shall be made). If the Acquiror and the Shareholder or
Shareholder Representative agree upon a different amount of Adjusted EBTDA
or Net Earn-Out Payment or if, absent such agreement, the matter is
submitted to arbitration and decided thereby, then, the Acquiror shall make
the Net Earn-Out Payment, if any, determined in accordance with Schedule
2.07, as updated to the date of Closing, based on such agreed or
arbitration determined amount of Adjusted EBTDA or Net Earn-Out Payment.
All payments and issuances of stock under this Section 2.08(b) shall be
payable and made on and as of the fifth Business Day following the 30-day
period in which the Shareholder or Shareholder Representative had the
opportunity but failed to make any objection, after agreement by the
parties or upon a final determination by the arbitrators, as applicable;
provided, however, that it is understood that it may not be practicable to
physically deliver the Stock Certificate on such date, but Acquiror will
deliver satisfactory Letters of Authorization to its Transfer Agent so
directing the issuance of such stock as of such date."
7. Section 4.11 of the Agreement is amended to read as follows:
"4.11 PERMITS. Schedule 4.11 lists for the Dickson Group all permits,
licenses, certificates, authorizations and approvals granted by any
Governmental Authority (each, a "Permit") and used or held by one or more
of the Dickson Group, or any of their Affiliates in connection with the
ownership and operation of the Business (the "Scheduled Permits"). The
Scheduled Permits constitute all Permits necessary for the continued
ownership, use and operation of the Business consistent in all material
respects with the past practices of the Dickson Group, except the Air
Quality Permit and a Storm Water Discharge Permit for the Dickson Group
operations at Belle Chasse as set forth on Schedule 4.24. Except as set
forth in Schedule 4.11, the Scheduled Permits are valid and in full force
and effect and no Scheduled Permit is in default, and no condition exists
that with notice or lapse of time or both would constitute a default, under
the Scheduled Permits. All fees and other payments due and owing in
connection with the Scheduled Permits have been paid in full and in a
timely manner so as to prevent any lapse or revocation thereof."
8. Section 9.01 of the Agreement is amended to read as follows:
"9.01 BY SHAREHOLDER. Subject to the terms and conditions of this
Article IX, the Shareholder hereby agrees to indemnify, defend and hold
harmless Acquiror and its directors, officers, employees, consultants,
Affiliates and controlling persons (hereinafter, including the Dickson
Group and its Subsidiaries after the Closing, collectively, the "Acquiror
Indemnified Parties") from and against all Claims (as defined below)
asserted against, imposed upon or incurred by Acquiror or any Acquiror
Indemnified Party, directly or indirectly, by reason of, arising out of, or
resulting from (a) the inaccuracy or breach of any representation or
warranty of the Dickson Group or such Shareholder contained in or made
3
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pursuant to this Agreement, including, but not limited to, any
environmental matter in Section 4.24 and any Claims associated with the Air
Quality Permit or the Storm Water Discharge Permit; and (b) the breach of
any covenant or agreement of the Dickson Group or such Shareholder
contained in or made pursuant to this Agreement; provided, however,
Acquiror and Acquiror Indemnified Parties covenant and agree that in no
event shall the liability, in the aggregate, of the Shareholder, in his
capacity as indemnifying party, for any and all indemnified Claims under
this Article IX exceed the Purchase Price, subject, however, to the
provisions of Section 9.07(b). As used in this Section 9.01, the term
"Claim" shall include (i) all debts, liabilities and obligations; (ii) all
losses, damages, reasonable costs and expenses (including, without
limitation, interest (including prejudgment interest in any litigated
matter), but excluding any allocation of overhead costs and expenses of
Acquiror or any of its Subsidiaries), penalties, court costs and reasonable
legal, accounting, consulting and engineering fees and expenses; (iii) all
reasonable and necessary costs that may be attributable to an Environmental
Condition or that may be necessary to comply with Environmental Laws,
including, but not limited to, the removal of Hazardous Materials and the
remediation of any property according to standards established by
Environmental Law or standards established on a case-by-case basis by any
Governmental Authority according to Environmental Law; and (iv) all
demands, Claims, actions, costs of investigation, causes of action,
proceedings, arbitrations, judgments, settlements and assessments, whether
or not ultimately determined to be valid. Acquiror has no obligation to
seek recovery of any Claim, or any portion thereof, from any insurance
policies covering the Dickson Group and/or Shareholder in effect prior to
the Closing, but will reasonably cooperate with Shareholder in
Shareholder's seeking such recovery. In the event that the Dickson Group
and/or the Shareholder recover from such an insurance policy for a Claim,
or a portion thereof made by Acquiror, and such insurance recovery was paid
to Acquiror by the insurance company, then Acquiror shall reimburse the
Dickson Group and/or the Shareholder for that portion of the Claim that was
paid by both the Dickson Group and/or the Shareholder to Acquiror on the
one hand and the insurance company on the other."
9. Section 10.03(a) of the Agreement is deleted and amended to read
"Intentionally Blank".
10. Due to changes occurring after August 1, 1998, the following Schedules
2.07, 3.01, 4.05, 4.07, 4.11, 4.16, and 4.24 are hereby deleted from the
Agreement and the attached Schedules are substituted for the original referenced
Schedules. Except as expressly set forth herein, attachments to the Schedules
remain unchanged, except for changes occurring in the Ordinary Course of
Business set forth in Attachment 1 each of which do not have a Material Adverse
Effect.
11. Except as expressly set forth herein, the terms and provisions of the
Agreement are hereby ratified and confirmed.
12. This Amendment may be executed in one or more counterparts, each of
which shall be deemed to be an original, but all of which shall constitute one
and the same Agreement.
4
<PAGE> 5
IN WITNESS WHEREOF, Acquiror, Acquisition Corp., the Dickson Group, the
Shareholder and the Transferees have each executed or caused this Agreement to
be executed on its behalf by its officer thereunto duly authorized, as
applicable, all as of the date first above written.
ACQUIROR: TRANSCOASTAL MARINE SERVICES, INC.
By: /s/ Thad Smith III
-------------------------------------
THAD SMITH III, President
TRANSCOASTAL ACQUISITION, INC.
By: /s/ Bill Stallworth
-------------------------------------
BILL STALLWORTH, President
DICKSON GROUP: DICKSON GMP INTERNATIONAL, INC.
By: /s/ Fred E. Gallander, Jr.
-------------------------------------
FRED E. GALLANDER, JR., President
DICKSON MARINE, INC.
By: /s/ Fred E. Gallander, Jr.
-------------------------------------
FRED E. GALLANDER, JR., President
DICKSON NIGERIA, LTD.
By: /s/ Fred E. Gallander, Jr.
-------------------------------------
FRED E. GALLANDER, JR., President
SERVICIOS Y CONSTRUCCIONES PETROLERAS
VENTURA, C.A.
By: /s/ Fred E. Gallander, Jr.
-------------------------------------
FRED E. GALLANDER, JR., President
5
<PAGE> 6
VENTURA RESOURCES, INC.
By: /s/ Fred E. Gallander, Jr.
-------------------------------------
FRED E. GALLANDER, JR., President
SHAREHOLDER: /s/ Fred E. Gallander, Jr.
-------------------------------------
Fred E. Gallander, Jr.
/s/ Rebecca D. Gallander
-------------------------------------
Rebecca D. Gallander
TRANSFEREE: /s/ Paul T. Gariepy, Jr.
-------------------------------------
Paul T. Gariepy, Jr.
/s/ Beverly B. Gariepy
-------------------------------------
Beverly B. Gariepy
/s/ Bobby J. Frantom
-------------------------------------
Bobby J. Frantom
/s/ Shawnee L. Frantom
-------------------------------------
Shawnee L. Frantom
/s/ Thomas G. Wright
-------------------------------------
Thomas G. Wright
6
<PAGE> 7
ATTACHMENT 1 TO FIRST AMENDMENT TO STOCK PURCHASE AND MERGER AGREEMENT
Schedule 4.10
Schedule 4.11, Routine Operational Permits and Authorizations
Schedule 4.12, Vessel "call outs", Domestic Jobs, Miscellaneous Purchase Orders,
Vendor Listing
Schedule 4.14, Accounts Receivable
Schedule 4.16, Accounts Payable and Accrued Expenses, Deposits
Schedule 4.20, Various Workman's Compensation claims, Dickson Nigeria claims
consistent with schedules
Schedule 4.22(a)(i) and (ii)
Schedule 4.22(c)
<PAGE> 1
EXHIBIT 3
SETTLEMENT AGREEMENT TO
STOCK PURCHASE AND MERGER AGREEMENT
THIS SETTLEMENT AGREEMENT TO STOCK PURCHASE AND MERGER AGREEMENT, (the
"Settlement Agreement") is made and entered into as of the 17th day of May, 1999
by and among TransCoastal Marine Services, Inc., a Delaware corporation
("TransCoastal") and Dickson GMP International, Inc., a Louisiana corporation
("Dickson GMP"); Fred E. Gallander, Jr. ("Gallander") Paul T. Gariepy, Jr.
("Gariepy"), Bobby J. Frantom ("Frantom") and Thomas G. Wright ("Wright")
Gallander, Gariepy, Frantom and Wright are collectively referred to as
"Shareholders." (Each spouse of the Shareholders is joining in and consenting to
the execution of this Settlement Agreement.) Capitalized terms used but not
defined below shall have the respective meaning ascribed to such terms in the
Agreement (as hereinafter defined).
WHEREAS, the parties hereto have entered into that certain Stock
Purchase and Merger Agreement, dated as of August 1, 1998 (as amended by the
First Amendment dated August 31, 1998, collectively, the "Agreement");
WHEREAS, TransCoastal is required to pay Contingent Consideration to
the Shareholders as an Earn-Out Payment under certain conditions pursuant to the
Agreement;
WHEREAS, the parties have agreed to an alternate arrangement for the
Earn-Out Payment and Contingent Consideration and desire to modify or supersede
the Agreement and to settle the issues regarding the Earn-Out Payment and the
Contingent Consideration and certain other matters in accordance with this
Settlement Agreement;
NOW THEREFORE, for and in consideration of the foregoing and the
respective representations, warranties, covenants and agreements contained
herein, the parties hereto agree as follows:
1. SETTLEMENT CONSIDERATION. In lieu of all Contingent Consideration
and any Earn-Out Payment set forth in the Agreement and the First Amendment, the
total consideration to be paid by TransCoastal to the Shareholders for such
Contingent Consideration and Earn-Out Payment shall be payable on the Settlement
Closing Date, as hereinafter defined, as follows (the "Settlement
Consideration"):
(a)(i) Delivery by TransCoastal to the Shareholders of an
aggregate of $4,700,000 to be paid by wire transfer or other
immediately available funds approved by the Shareholders in accordance
with the instructions set forth in Schedule 1(a)(i) and (ii) issuance
by TransCoastal of 400,000 shares of TransCoastal Common Stock to
Shareholders in accordance with the sharing ratios set forth in
Schedule 1(a)(ii);
(b) Issuance by TransCoastal to the Shareholders of
TransCoastal Series A Preferred Stock in accordance with the
Certificate of Designation of Series A Preferred Stock as set forth on
Exhibit A attached hereto. The dollar amount of the Series A Preferred
Stock shall be
<PAGE> 2
determined by subtracting from $3,500,000 the sum of the (i) value of
the 400,000 shares of Common Stock issued on the Settlement Closing
Date (as hereinafter defined) pursuant to Section 1(a)(ii), such value
per share being based upon the average closing price of TransCoastal
Common Stock for the ten (10) business days immediately prior to May
14, 1999 and all parties agree such value is $4.20 per share and (ii)
the dollar amount of the Series B Convertible Preferred Stock as
determined in (c) below. The Series A Preferred Stock shall be
redeemable by TransCoastal at any time after six years from the Issue
Date and shall be redeemable at the option of the holder of such stock
no earlier than five years from the date of issuance of such stock in
accordance with the terms of the Certificate of Designations; and,
(c) Issuance by TransCoastal to the Shareholders of
TransCoastal Series B Convertible Preferred Stock in accordance with
the Certificate of Designation of Series B Convertible Preferred Stock
as set forth on Exhibit B attached hereto. The dollar amount of the
Series B Convertible Preferred Stock shall be determined based upon the
average closing price of TransCoastal Common Stock for the ten (10)
business days immediately prior to May 14, 1999 and all parties agree
such value is $4.20 per share multiplied by 400,000. The Series B
Preferred Stock shall be redeemable by TransCoastal at any time after
six years from the Issue Date and shall be redeemable at the option of
the holder of such stock no earlier than five years from the date of
issuance of such stock in accordance with the terms of the Certificate
of Designation. All of the outstanding shares of Series B Convertible
Preferred Stock shall be converted automatically into an aggregate of
400,000 shares of TransCoastal Common Stock if TransCoastal receives
shareholder approval for the issuance of such Common Stock shares at
its May 1999 Annual Stockholders Meeting, or any adjournment thereof,
or at its May 2000 Annual Stockholders Meeting, or any adjournment
thereof, or at any special meeting of the shareholders occurring
between these meetings, as hereinafter provided. Upon such conversion,
certificates representing such shares of Common Stock shall be issued
not later than 30 days following such shareholder approval.
TransCoastal agrees to recommend, seek and use its reasonable efforts
to obtain such approval from its shareholders at its May 1999 Annual
Stockholders Meeting, its May 2000 Annual Stockholders Meeting, and at
any special stockholders meetings occurring between these meetings. At
any meeting of the stockholders with respect to the foregoing, and at
any adjournment thereof, and with respect to any consent solicited with
respect to the foregoing, each Shareholder who is a party to this
Settlement Agreement hereby agrees to vote such Shareholder's
TransCoastal Common Stock in favor of the issuance of the Common Stock
as set forth herein.
2. REGISTRATION RIGHTS. TransCoastal shall grant to the Shareholders
certain demand and piggyback registration rights for the TransCoastal Common
Stock issued pursuant to Section 1 above. Such rights, as well as amendments to
prior registration rights for the Common Stock issued to the Shareholders prior
to the date hereof, shall be set forth in a Registration Rights Agreement to be
executed on the Settlement Closing Date in the form of Exhibit C attached
hereto.
3. SIRPI AND ABB MOBIL DISPUTES. TransCoastal and the Shareholders
agree as to any liabilities and obligations (including attorneys fees, costs,
expenses and all settlement amounts, if any, but only if such attorneys fees,
costs, expenses and settlement amounts are taxed to or assessed against Dickson
GMP or its affiliates, including TransCoastal, (i) by a court of competent
jurisdiction in a final judgment or (ii) pursuant to a settlement agreement
approved by Gallander, as the Shareholders' Representative, as hereinafter
provided (collectively, the "Liabilities") associated with the lawsuit styled
-2-
<PAGE> 3
Sirpi Alusteel Construction, Ltd. vs. Dickson GMP International, Inc., on the
docket of the United States District Court for the Eastern District of
Louisiana, Civil Action No. 98-0929, Section "F", Mag.: 5 and relating to
disputes arising under the Letter Agreement between Dickson Alusteel Joint
Venture and ABB Lummus Global, dated July 28, 1998 and all attachments, a true
and correct copy of which is attached hereto as Exhibit D (collectively, the
"Disputes"). The Shareholders represent to TransCoastal that they have made
available to TransCoastal either the original or copies of any and all
documentation, correspondence, memos, notes, demands or any other written
material regarding or related to, and have furnished to TransCoastal those items
material to each of the Disputes in both their or Dickson GMP's possession,
custody or control. TransCoastal agrees to assume responsibility for the first
$600,000 of Liabilities under the Disputes. Thereafter, the Shareholders shall
be responsible for all Liabilities to the full extent of the liquidation
preference of the Series A Preferred Stock as defined in the Certificate of
Designation for the Series A Preferred Stock attached hereto as Exhibit "A",
plus accrued dividends thereon (collectively, the "Value"), provided such
obligation of the Shareholders for such Liabilities shall be payable solely from
the Series A Preferred Stock issued pursuant to Section 1(b) hereof, and such
obligation shall be shared between the Shareholders based on the pro rata
ownership of the shares of Series A Preferred Stock. Upon notice given by
TransCoastal to the Shareholders of amounts due by the Shareholders to
TransCoastal as a result of the Disputes, certificates representing the Series A
Preferred Stock up to an amount equal in Value necessary to satisfy
Shareholder's obligation for the Liabilities as set forth hereunder shall be
delivered to TransCoastal immediately after TransCoastal's notice, such shares
to be free and clear of all liens, claims and encumbrances and in sufficient
number to satisfy the amounts owed by the Shareholders. To the extent necessary,
TransCoastal shall reissue stock certificates representing the number of shares
exceeding the amount of shares required to satisfy Shareholder's obligation for
the Liabilities as set forth hereunder. If the amount of the Liabilities for the
Disputes exceeds the sum of $600,000 plus the Value of the Series A Preferred
Stock delivered to TransCoastal, then TransCoastal and the Shareholders, in the
aggregate, shall share the additional Liabilities equally up to a maximum of
total Liabilities of $1,500,000. TransCoastal shall be responsible for all
Liabilities of the Disputes in excess of the sum of the initial $600,000, the
value of the Series A Preferred Stock and the additional shared liability of up
to $1,500,000 in total Liabilities.
Any settlement of the Disputes for an aggregate amount in excess of
$600,000 shall require the prior written consent and approval of Gallander as
the Shareholders' Representative. The Shareholders shall have the right, but not
the obligation, to participate, at their own expense, in the defense of any of
the Disputes and irrespective of Shareholder's decision to participate in such
defense, TransCoastal shall apprise Gallander for and on behalf of the
Shareholders of all significant events and developments concerning the Disputes.
Upon conclusion of the Settlement Closing, this Settlement Agreement shall
extinguish, and TransCoastal, Dickson GMP or any of their affiliates do hereby
release and forever discharge the Shareholders, and each and every one of them,
from, any and all obligations, claims, indebtedness and liabilities arising
under the Agreement or otherwise, whether contractual or otherwise, relating to
the Disputes, unless specifically preserved in this Settlement Agreement.
4. REPRESENTATION AND WARRANTIES OF TRANSCOASTAL AND DICKSON GMP.
TransCoastal and Dickson GMP represent and warrant to the Shareholders as
follows:
(a) TransCoastal is a corporation duly organized under the
laws of the State of Delaware and is validly existing and in good
standing under the laws of such jurisdiction. Dickson GMP is a
corporation duly organized under the laws of the State of Louisiana and
is validly existing and in good standing under the laws of such
jurisdiction.
-3-
<PAGE> 4
(b) Each of TransCoastal and Dickson GMP have all requisite
corporate power and authority to execute and deliver this Settlement
Agreement and any other transaction documents to which such entity is a
party and to perform its obligations hereunder and thereunder. The
execution and delivery of this Settlement Agreement and the other
transaction documents to which TransCoastal and Dickson GMP are a party
and the performance of such entity's obligations contemplated hereby
and thereby have been duly and validly approved by all corporate
action, if any, necessary on behalf of such entity. This Settlement
Agreement and each of the transaction documents to which TransCoastal
and Dickson GMP are a party constitutes the legal, valid and binding
obligations of such entity, enforceable against it in accordance with
their terms, subject to Creditors' Rights. All other documents required
hereunder to be executed and delivered by TransCoastal and/or Dickson
GMP at the Settlement Closing have been duly authorized, executed and
delivered by such entity and constitute the legal, valid and binding
obligations of such entity, enforceable against it in accordance with
their terms, subject to Creditors' Rights.
(c) Neither the execution and delivery by TransCoastal of this
Settlement Agreement nor the consummation of the transactions
contemplated hereby will violate or breach the terms of, cause a
default under, conflict with, result in acceleration of, create in any
party the right to accelerate, terminate, modify or cancel, require any
notice or consent or give rise to any preferential purchase or similar
right under (i) any applicable Law, (ii) such entity's charter or
bylaws, or (iii) any Material Contract to which such entity is a party
or by which it or any of its properties, is bound, except for the
required stockholder approval for the issuance of the additional shares
of TransCoastal Common Stock.
(d) Upon consummation of the transactions contemplated by this
Settlement Agreement, the TransCoastal Common Stock, Series A Preferred
Stock and Series B Convertible Preferred Stock issued to the
Shareholders pursuant to Section 1 hereof, will be duly authorized,
validly issued, fully paid and non-assessable, and free and clear of
any Lien other than restrictions noted on the legends on the stock
certificates evidencing such shares in compliance with federal or state
securities laws. The issuance of the TransCoastal Common Stock, Series
A Preferred Stock and Series B Convertible Preferred Stock issued to
the Shareholders pursuant to Section 1 hereof, will not violate
TransCoastal's charter or bylaws or any agreement or other document to
which TransCoastal is a party or by which TransCoastal is bound or give
rise to preemptive rights, preferential rights or any such other rights
or claims on the part of any Person that have not been previously
waived.
5. REPRESENTATIONS AND WARRANTIES OF SHAREHOLDERS.
(a) Such Shareholder has the full power, legal right, capacity
and authority to enter into, execute and deliver this Settlement
Agreement, the Registration Rights Agreement, and the other transaction
documents to which such Shareholder is a party, and to carry out and
perform the transactions contemplated hereby and thereby. Each of this
Settlement Agreement, the Registration Rights Agreement, and the other
transaction documents to which such Shareholder is a party constitutes
a legal, valid and binding obligation of such Shareholder, enforceable
against such Shareholder in accordance with its terms, subject to
Creditors' Rights.
-4-
<PAGE> 5
(b) Neither the Company nor any of its Affiliates are required
to deduct or withhold from the consideration otherwise payable at the
Settlement Closing pursuant to this Settlement Agreement to such
Shareholder any amounts under the Code or any other provisions of
federal, state or local law.
(c) Neither the execution and delivery of this Agreement nor
the consummation of the transactions contemplated hereby by the
Shareholder will violate or breach the terms of, cause a default under,
conflict with, result in the acceleration of, create in any party the
right to accelerate, terminate, modify in a manner adverse to the
Shareholder or cancel, require any notice or consent or give rise to
any preferential purchase or similar right under (i) any applicable
Law, or (ii) any Material Contract to which such entity is a party or
by which they, or any of their properties, is bound.
6. OPINION LETTER FROM GENERAL COUNSEL. As a condition to the
Settlement Closing, TransCoastal shall provide to Shareholders the written
opinion of Allyson Fox Pharr, the General Counsel of TransCoastal, in form and
content satisfactory to Shareholders and their legal counsel.
7. SETTLEMENT CLOSING DATE. The closing (the "Settlement Closing") of
the transactions contemplated by this Settlement Agreement shall take place at
the offices of Vinson & Elkins L.L.P. or other location mutually agreeable to
the parties, on the date of execution of this Agreement. The date on which the
Settlement Closing occurs is referred to in this Settlement Agreement as the
"Settlement Closing Date."
8. PRIOR RIGHTS AND OBLIGATIONS. Upon conclusion of the Settlement
Closing, this Settlement Agreement shall extinguish (i) all rights which
Shareholders may have, and obligations which TransCoastal, Dickson GMP or any of
their affiliates may have, contractual or otherwise, relating to the Contingent
Consideration or Earn-Out Payment and any registration rights set forth in the
Agreement, and (ii) all rights which TransCoastal, Dickson GMP or any of their
affiliates may have, and obligations which the Shareholders may have,
contractual or otherwise, relating to the Contingent Consideration or Earn-Out
Payment and any registration rights set forth in the Agreement, unless
specifically preserved in this Settlement Agreement, and for which the
Shareholders and TransCoastal, Dickson GMP and all of their affiliates do hereby
mutually and reciprocally release and discharge each other.
9. INVESTMENT. Each Shareholder as to himself, (a) understands that the
shares of TransCoastal Common Stock, Series A Preferred Stock and Series B
Convertible Preferred Stock to be issued to such Shareholder have not been, and
will not be, registered under the Federal securities laws or any state
securities laws, and are being offered and sold in reliance upon Federal and
state exemptions for transactions not involving any public offering, (b) is
acquiring the shares of the TransCoastal Common Stock, Series A Preferred Stock
and Series B Convertible Preferred Stock solely for his own account for
investment purposes, and not with a view to the distribution thereof, (c) is a
sophisticated investor with knowledge and experience in business and financial
matters, (d) has received certain information concerning TransCoastal, and has
had the opportunity to obtain additional information if desired in order to
evaluate the merits and risks inherent in holding the shares of TransCoastal
Common Stock, Series A Preferred Stock and Series B Convertible Preferred Stock,
(e) is able to bear the economic risk and lack of liquidity inherent in holding
the shares of TransCoastal Common Stock, Series A Preferred Stock and Series B
Convertible Preferred Stock, and (f) is an Accredited Investor.
-5-
<PAGE> 6
10. ENTIRE AGREEMENT; THIRD PARTY BENEFICIARIES. This Settlement
Agreement (including the Schedules and Exhibits hereto) constitutes the entire
agreement and supersedes all other prior agreements and understandings, both
oral and written, among the parties or any of them, with respect to the subject
matter hereof. Neither this Settlement Agreement nor any document delivered in
connection with this Settlement Agreement confers upon any person not a party
hereto any rights or remedies hereunder.
11. WAIVER AND AMENDMENT. This Settlement Agreement may not be amended
or supplemented at any time, except by an instrument in writing signed on behalf
of each party hereto. The waiver by any party hereto of any condition or of a
breach of any provision of this Settlement Agreement shall not operate or be
construed as a waiver of any other condition or subsequent breach.
12. ASSIGNMENT. This Settlement Agreement shall inure to the benefit of
and will be binding upon the parties hereto and their respective legal
representatives, successors and permitted assigns. Except as set forth in this
Settlement Agreement, this Settlement Agreement shall not be assignable by any
party hereto without the consent of the other parties hereto.
13. NOTICES. All notices, requests, demands, claims and other
communications that are required to be or may be given under this Agreement
shall be in writing and (i) delivered in person or by courier, (ii) sent by
telecopy or facsimile transmission, or (iii) mailed, certified first class mail,
postage prepaid, return receipt requested, to the appropriate party at the
following addresses:
if to TransCoastal or Dickson GMP:
TransCoastal Marine Services, Inc.
4900 Woodway, Suite 500
Houston, Texas 77056
Telecopy: (713) 626-7582
Attention: Pamela L. Reiland
with copies to:
Vinson & Elkins L.L.P.
2300 First City Tower
1001 Fannin Street
Houston, Texas 77002-6760
Telecopy: (713) 615-5531
Attention: T. Mark Kelly
if to the Shareholders:
Fred E. Gallander
Dickson GMP International, Inc.
4001 Woodland Highway
New Orleans, Louisiana 70131
Telecopy: (504) 398-7879
-6-
<PAGE> 7
with copies to:
David A. Kerstein, Esq.
228 St. Charles Avenue
902 Whitney Bldg.
New Orleans, Louisiana 70130
Telecopy: (504) 525-5381
or to such other address as the parties set forth above shall have furnished to
the other parties set forth above by notice given in accordance with this
Section 10.07. Such notices shall be effective (i) if delivered in person or by
courier, upon actual receipt by the intended recipient, (ii) if sent by telecopy
or facsimile transmission, when the sender receives telecopier confirmation that
such notice was received at the telecopier number of the addressee, or (iii) if
mailed, upon the earlier of five days after deposit in the mail and the date of
delivery as shown by the return receipt therefor.
14. GOVERNING LAW. THE CONSTRUCTION, INTERPRETATION, AND VALIDITY OF
THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE
SUBSTANTIVE LAW OF THE STATE OF TEXAS, WITHOUT GIVING EFFECT TO THE PRINCIPLES
OF CONFLICTS OF LAW THEREOF.
15. SEVERABILITY. If any term, provision, covenant or restriction of
this Settlement Agreement is held by a court of competent jurisdiction to be
invalid, void or unenforceable, the remainder of the terms, provision, covenants
and restrictions of this Settlement Agreement shall continue in full force and
effect and shall in no way be affected, impaired or invalidated so long as the
economic or legal substance of the transactions contemplated hereby is not
affected in any manner materially adverse to any party. Upon such determination
that any term, provision, covenant or restriction is invalid, void or
unenforceable, the parties hereto shall negotiate in good faith to modify this
Settlement Agreement so as to effect the original intent of the parties as
closely as possible in an acceptable manner to the end that the transactions
contemplated hereby are fulfilled to the extent possible.
16. COUNTERPARTS. This Settlement Agreement may be executed in two or
more counterparts or facsimile signatures, each of which shall be an original,
but all of which together shall constitute one and the same agreement.
17. HEADINGS. The Section headings herein are for convenience only and
shall not affect the construction hereof.
-7-
<PAGE> 8
IN WITNESS WHEREOF, TransCoastal and the Shareholders have each
executed or caused this Agreement to be executed on its behalf by its officer
thereunto duly authorized, as applicable, all as of the date first above
written.
TRANSCOASTAL:
TRANSCOASTAL MARINE SERVICES, INC.
By: /s/ N. M. AVERY
--------------------------------------
Name: N. M. Avery
Title: President
DICKSON GMP:
DICKSON GMP INTERNATIONAL, INC.
By: /s/ FRED E. GALLANDER
--------------------------------------
Name: Fred E. Gallander
Title: President
-8-
<PAGE> 9
SHAREHOLDERS:
/s/ FRED E. GALLANDER, JR.
--------------------------------------
Fred E. Gallander, Jr.
/s/ REBECCA D. GALLANDER
--------------------------------------
Rebecca D. Gallander
/s/ PAUL T. GARIEPY, JR.
--------------------------------------
Paul T. Gariepy, Jr.
/s/ BEVERLY B. GARIEPY
--------------------------------------
Beverly B. Gariepy
/s/ BOBBY J. FRANTOM
--------------------------------------
Bobby J. Frantom
/s/ SHAWNEE L. FRANTOM
--------------------------------------
Shawnee L. Frantom
/s/ THOMAS G. WRIGHT
--------------------------------------
Thomas G. Wright
-9-
<PAGE> 1
EXHIBIT 4
TRANSCOASTAL MARINE SERVICES, INC.
IRREVOCABLE STOCK PROXY
KNOW ALL MEN BY THESE PRESENTS that the undersigned hereby
irrevocably appoints FRED E. GALLANDER, JR., attorney and proxy for and in the
name, place and stead of the undersigned, with full power of substitution, for a
period of three (3) years from September 1, 1998, to vote in such manner as such
attorney and proxy, or his substitute, shall in his sole discretion deem proper
with respect to, all of the stock of TRANSCOASTAL MARINE SERVICES, INC. (the
"Company"), held or owned by, or standing in the name of, the undersigned,
(including but not limited to any and all other shares or other securities
issuable by the Company on or after September 1, 1998, whether issued in respect
of shares previously issued or otherwise), according to the number of votes that
the undersigned would be entitled to vote, at any and all meetings (whether
annual or special or whether or not adjourned meetings) of the Company, giving
and granting to said attorney and proxy all powers the undersigned would possess
if personally present at such meeting, hereby ratifying and confirming all that
said attorney and proxy shall lawfully do or cause to be done by virtue hereof.
This proxy is coupled with an interest. Said attorney and proxy shall have the
right to exercise all of the powers hereby given either in person or by
substitute, provided such substitute is designated in writing by the attorney
and proxy.
The undersigned agrees to take any and all actions and execute and
deliver to the attorney and proxy any and all additional documents, instruments
or agreements necessary to effectuate and perfect this proxy.
IN WITNESS WHEREOF, the undersigned has executed this proxy this 1 day
of September, 1998.
WITNESSES:
/s/ Witness
- -----------------------------
/s/ Witness /s/ Paul T. Gariepy, Jr.
- ----------------------------- --------------------------------
PAUL T. GARIEPY, JR.
- -----------------------------
