SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
----------
FORM 8-K
CURRENT REPORT
PURSUANT TO SECTION 13 OR 15 (D) OF THE
SECURITIES EXCHANGE ACT OF 1934
Date of Report (Date of earliest event reported) May 31, 1996
SEACOR HOLDINGS, INC.
- --------------------------------------------------------------------------------
(Exact name of registrant as specified in its charter)
Delaware 0-20904 13-3542736
- --------------------------------------------------------------------------------
(State or other jurisdiction of (Commission (I.R.S. employer
incorporation or organization) File Number) identification no.)
11200 Westheimer, Suite 850, Houston. Texas 77042
- --------------------------------------------------------------------------------
(Address of principal executive offices) (Zip Code)
Registrant's telephone number, including area code (713) 782-5990
-----------------------------
Not Applicable
- --------------------------------------------------------------------------------
(Former name or former address, if changed since last report.)
<PAGE>
Item 2. Acquisition or Disposition of Assets
- ------- ------------------------------------
On May 31, 1996, SEACOR Holdings, Inc. ("SEACOR") acquired McCall
Enterprises, Inc. ("McCall") and affiliated companies (collectively with McCall,
the "McCall Companies"). The acquisition was accomplished, in part, by merging
SEACOR Enterprises, Inc., SEACOR Support Services, Inc. and SEACOR N.F. Inc.,
wholly owned Louisiana subsidiaries of SEACOR, with and into McCall, McCall
Support Vessels, Inc. and N.F. McCall Crews, Inc., respectively (collectively,
the "McCall Merger Companies"), with the McCall Merger Companies being the
surviving corporations of such mergers (collectively, the "Mergers").
Immediately after the effectiveness of the Mergers, SEACOR, directly or
through McCall, acquired all of the outstanding capital stock of the other
McCall Companies not already owned by SEACOR or one of the McCall Merger
Companies. SEACOR accomplished such acquisitions through four Share Exchange
Agreements with the stockholders of such McCall Companies.
In consideration for the acquisition, the former stockholders of the McCall
Companies have rights to receive an aggregate of approximately 1.3 million
shares of SEACOR common stock, subject to an adjustment based upon a final
determination of the working capital of the McCall Companies as of May 31, 1996.
Based on SEACOR's closing price on May 30, 1996, the transaction has a value of
approximately $64.6 million.
The McCall Companies operate as McCall's Boat Rentals, Inc. and are based
in Cameron, Louisiana. McCall operates five utility boats and 36 crew boats
dedicated to serving the oil and gas industry in the U.S. Gulf of Mexico.
McCall's Boat Rentals, Inc. employs approximately 230 people. Norman McCall, the
founder and President of McCall's Boat Rentals, Inc., and Joseph McCall will
remain with McCall and each have signed employment agreements with McCall.
Item 7. Financial Statements and Exhibits
- ------- ---------------------------------
(a) Financial Statements of Business Acquired
The financial statements for the acquired business, McCall Enterprises Inc.
and its affiliates, for the periods required by Rule 3-05(b) of Regulation S-X
are attached hereto as Annex A.
(b) Pro Forma Financial Information
The pro forma financial information for the Company and McCall Enterprises
Inc. and its affiliates, required pursuant to Article 11 of Regulation S-X, is
attached hereto as Annex B.
<PAGE>
(c) Exhibits
2.1 Agreement and Plan of Merger, dated as of May 31, 1996, by and
among SEACOR Holdings, Inc., SEACOR Enterprises, Inc. and
McCall Enterprises, Inc.
2.2 Agreement and Plan of Merger, dated as of May 31, 1996, by and
among SEACOR Holdings, Inc., SEACOR Support Services, Inc. and
McCall Support Vessels, Inc.
2.3 Agreement and Plan of Merger, dated as of May 31, 1996, by and
among SEACOR Holdings, Inc., SEACOR N.F., Inc. and N.F. McCall
Crews, Inc.
2.4 Exchange Agreement relating to McCall Crewboats, L.L.C., dated
as of May 31, 1996, by and among SEACOR Holdings, Inc. and the
Persons listed on the signature pages thereto.
2.5 Share Exchange Agreement and Plan of Reorganization relating
to Cameron Boat Rentals, Inc., dated as of May 31, 1996, by
and among SEACOR Holdings, Inc., McCall Enterprises, Inc., and
the Persons listed on the signature pages thereto.
2.6 Share Exchange Agreement and Plan of Reorganization relating
to Philip A. McCall, Inc., dated as of May 31, 1996, by and
among SEACOR Holdings, Inc., McCall Enterprises, Inc. and the
Persons listed on the signature pages thereto.
2.7 Share Exchange Agreement and Plan of Reorganization relating
to Cameron Crews, Inc., dated as of May 31, 1996, by and among
SEACOR Holdings, Inc., McCall Enterprises, Inc., and the
Persons listed on the signature pages thereto.
10.1 Indemnification Agreement, dated as of May 31, 1996, among all
of the Stockholders of McCall Enterprises, Inc., Norman
McCall, as representative of such Stockholders, and SEACOR
Holdings, Inc.
10.2 Indemnification Agreement, dated as of May 31, 1996, among all
of the Stockholders of McCall Support Vessels, Inc., Norman
McCall, as representative of such Stockholders, and SEACOR
Holdings, Inc.
10.3 Indemnification Agreement, dated as of May 31, 1996, among all
of the Stockholders of N.F. McCall Crews, Inc., Norman McCall,
as representative of such Stockholders, and SEACOR Holdings,
Inc.
10.4 Indemnification Agreement, dated as of May 31, 1996, among all
of the Members of McCall Crewboats, L.L.C., Norman McCall, as
representative of such Members, and SEACOR Holdings, Inc.
10.5 Indemnification Agreement, dated as of May 31, 1996, among all
of the Stockholders of Cameron Boat Rentals, Inc., Norman
McCall, as representative of such Stockholders, and SEACOR
Holdings, Inc.
<PAGE>
10.6 Indemnification Agreement, dated as of May 31, 1996, among all
of the Stockholders of Philip A. McCall, Inc. and SEACOR
Holdings, Inc.
10.7 Indemnification Agreement, dated as of May 31, 1996, among all
of the Stockholders of Cameron Crews, Inc., Norman McCall, as
representative of such Stockholders, and SEACOR Holdings, Inc.
10.8 Investment and Registration Rights Agreement, dated as of May
31, 1996, among SEACOR Holdings, Inc. and the Persons listed
on the signature pages thereto.
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the
registrant has duly caused this report to be signed on its behalf by the
undersigned hereunto duly authorized.
SEACOR HOLDINGS, INC.
(Registrant)
DATE: June 6, 1996 By: /s/ Randall Blank
---------------------
Randall Blank, Executive Vice
President, Chief Financial Officer
and Secretary
(Principal Financial Officer)
<PAGE>
ANNEX A
<PAGE>
REPORT OF INDEPENDENT PUBLIC ACCOUNTANTS
----------------------------------------
To McCall Affiliated Companies:
We have reviewed the accompanying condensed combined balance sheet of McCall
Affiliated Companies as of March 31, 1996, and the related condensed combined
statements of operations and cash flows for the three-month periods ended March
31, 1996 and 1995. These financial statements are the responsibility of the
Company's management.
We conducted our reviews in accordance with standards established by the
American Institute of Certified Public Accountants. A review of interim
financial information consists principally of applying analytical procedures to
financial data and making inquiries of persons responsible for financial and
accounting matters. It is substantially less in scope than an audit conducted in
accordance with generally accepted auditing standards, the objective of which is
the expression of an opinion regarding the financial statements taken as a
whole. Accordingly, we do not express such an opinion.
Based on our reviews, we are not aware of any material modifications that should
be made to the financial statements referred to above for them to be in
conformity with generally accepted accounting principles.
Arthur Andersen LLP
New Orleans, Louisiana,
May 17, 1996
<PAGE>
McCALL AFFILIATED COMPANIES
---------------------------
CONDENSED COMBINED BALANCE SHEET
--------------------------------
AS OF MARCH 31, 1996
--------------------
CURRENT ASSETS:
Cash $ 5,532,000
Investment securities 923,000
Accounts receivable 3,461,000
Prepaid expenses and other 766,000
------------
Total current assets 10,682,000
INVESTMENT IN 50% OR LESS OWNED COMPANY 250,000
PROPERTY AND EQUIPMENT 48,800,000
Less - accumulated depreciation (21,208,000)
------------
27,592,000
OTHER ASSETS 288,000
------------
Total assets $ 38,812,000
============
CURRENT LIABILITIES:
Current portion of long-term debt $ 156,000
Loans from stockholders 1,570,000
Accounts payable and other current liabilities 1,740,000
------------
Total current liabilities 3,466,000
LONG-TERM LIABILITIES:
Notes payable - noncurrent 1,325,000
DEFERRED INCOME TAXES 6,551,000
STOCKHOLDERS' EQUITY:
Contributed capital 30,000
Retained earnings 27,742,000
Less 64 shares held in treasury, at cost (302,000)
------------
Total stockholders' equity 27,470,000
------------
Total liabilities and stockholders' equity $ 38,812,000
============
The accompanying notes are an integral part of these financial statements.
<PAGE>
McCALL AFFILIATED COMPANIES
---------------------------
CONDENSED COMBINED STATEMENT OF OPERATIONS
------------------------------------------
Three Months Ended March 31,
----------------------------
1996 1995
------------- -------------
OPERATING REVENUE $5,328,000 $ 4,895,000
COSTS AND EXPENSES:
Vessel operations 3,412,000 3,889,000
Administrative and general 295,000 256,000
Depreciation 535,000 520,000
---------- -----------
Total operating expenses 4,242,000 4,665,000
---------- -----------
INCOME FROM OPERATIONS 1,086,000 230,000
---------- -----------
OTHER INCOME (EXPENSE):
Interest income 11,000 11,000
Interest expense (62,000) (30,000)
---------- -----------
(51,000) (19,000)
---------- -----------
INCOME BEFORE INCOME TAXES AND EQUITY IN NET
EARNINGS OF 50% OR LESS OWNED COMPANY 1,035,000 211,000
INCOME TAX EXPENSE 362,000 81,000
---------- -----------
INCOME BEFORE EQUITY IN NET EARNINGS OF 50%
OR LESS OWNED COMPANY 673,000 130,000
EQUITY IN NET EARNINGS OF 50% OR LESS OWNED COMPANY 57,000 -
---------- -----------
NET INCOME $ 730,000 $ 130,000
========== ===========
The accompanying notes are an integral part of these financial statements.
<PAGE>
<TABLE>
<CAPTION>
McCALL AFFILIATED COMPANIES
---------------------------
CONDENSED COMBINED STATEMENTS OF CASH FLOWS
-------------------------------------------
Three Months Ended March 31,
----------------------------
1996 1995
------------- ------------
<S> <C> <C>
NET CASH PROVIDED BY OPERATING ACTIVITIES $ 2,092,000 $ 482,000
CASH FLOWS FROM INVESTING ACTIVITIES:
Purchase of property and equipment -- (1,000)
Purchase of securities (300,000) --
----------- -----------
Net cash used in investing activities (300,000) (1,000)
CASH FLOWS FROM FINANCING ACTIVITIES:
Payments on notes payable (115,000) (661,000)
Payments on stockholders' loans (95,000) (50,000)
----------- -----------
Net cash provided by financing activities (210,000) (711,000)
NET INCREASE (DECREASE) IN CASH AND CASH EQUIVALENTS 1,582,000 (230,000)
CASH AND CASH EQUIVALENTS AT BEGINNING OF PERIOD 3,950,000 3,502,000
----------- -----------
CASH AND CASH EQUIVALENTS AT END OF PERIOD $ 5,532,000 $ 3,272,000
=========== ===========
</TABLE>
The accompanying notes are an integral part of these financial statements.
<PAGE>
McCALL AFFILIATED COMPANIES
---------------------------
NOTES TO CONDENSED COMBINED FINANCIAL STATEMENTS
------------------------------------------------
MARCH 31, 1996
--------------
1. BASIS OF PRESENTATION:
- -------------------------
The condensed consolidated financial information for the three-month periods
ended March 31, 1996 and 1995 has been prepared by the Companies and was not
audited by its independent public accountants. In the opinion of management, all
adjustments (which include only normal recurring adjustments) necessary to
present fairly the financial position, results of operations and cash flows at
March 31, 1996, and for all periods presented have been made. Result of
operations for the interim periods presented are not necessarily indicative of
the operating results for the full year or any future periods.
Certain information and footnote disclosures normally included in financial
statements prepared in accordance with generally accepted accounting principles
have been condensed or omitted. These condensed combined financial statements
should be read in conjunction with the financial statements and related notes
thereto for the fiscal year ended December 31, 1995 included herein.
Income Taxes
- ------------
Income tax expense for the three-month periods ended March 31, 1996 and 1995 was
based upon an estimated effective tax rate for the entire fiscal year of 35% and
38%, respectively.
Earnings Per Share
- ------------------
Management believes that earnings per share for the combined Companies is not
relevant.
2. SUBSEQUENT EVENT:
- --------------------
On April 18, 1996, the Companies signed a letter of intent with SEACOR Holdings,
Inc. ("SEACOR") whereby SEACOR will acquire all of the outstanding capital stock
of the Companies in exchange for 1,215,500 shares of SEACOR common stock plus an
adjustment for working capital. The transaction is expected to qualify as a
tax-free reorganization and be consummated in the second quarter of 1996. It is
conditioned upon, among other things, satisfactory completion of due diligence,
execution of definitive documentation and receipt of necessary governmental
approvals.
<PAGE>
MCCALL AFFILIATED COMPANIES
FINANCIAL STATEMENTS
AS OF DECEMBER 31, 1995
TOGETHER WITH AUDITORS' REPORT
<PAGE>
REPORT OF INDEPENDENT PUBLIC ACCOUNTANTS
To the Stockholders of McCall Affiliated Companies:
We have audited the accompanying combined balance sheet of McCall Affiliated
Companies ("the Companies" - see Note 1) as of December 31, 1995, and the
related combined statements of operations and retained earnings and cash flows
for the year then ended. These financial statements are the responsibility of
the Companies' management. Our responsibility is to express an opinion on these
financial statements based on our audit.
We conducted our audit in accordance with generally accepted auditing standards.
Those standards require that we plan and perform the audit to obtain reasonable
assurance about whether the financial statements are free of material
misstatement. An audit includes examining, on a test basis, evidence supporting
the amounts and disclosures in the financial statements. An audit also includes
assessing the accounting principles used and significant estimates made by
management, as well as evaluating the overall financial statement presentation.
We believe that our audit provides a reasonable basis for our opinion.
In our opinion, the financial statements referred to above presently fairly, in
all material respects, the financial position of the McCall Affiliated Companies
as of December 31, 1995, and the results of their operations and their cash
flows for the year then ended, in conformity with generally accepted accounting
principles.
Arthur Andersen LLP
New Orleans, Louisiana,
May 10, 1996
<PAGE>
McCALL AFFILIATED COMPANIES
---------------------------
COMBINED BALANCE SHEET
----------------------
AS OF DECEMBER 31, 1995
-----------------------
CURRENT ASSETS:
Cash $ 3,950,000
Investment securities 623,000
Accounts receivable 3,495,000
Prepaid expenses and other 1,236,000
------------
Total current assets 9,304,000
INVESTMENT IN 50% OR LESS OWNED COMPANY 163,000
PROPERTY AND EQUIPMENT:
Vessels and equipment 47,473,000
Other 1,327,000
------------
Total property and equipment 48,800,000
Less - accumulated depreciation (20,673,000)
------------
28,127,000
OTHER ASSETS 288,000
------------
Total assets $ 37,882,000
============
CURRENT LIABILITIES:
Current portion of long-term debt $ 156,000
Loans from stockholders 1,665,000
Accounts payable 523,000
Accrued salaries and wages 321,000
Accrued liabilities 40,000
Deferred income taxes 500,000
------------
Total current liabilities 3,205,000
LONG-TERM LIABILITIES:
Notes payable - noncurrent 1,440,000
DEFERRED INCOME TAXES 6,497,000
STOCKHOLDERS' EQUITY:
Contributed capital 30,000
Retained earnings 27,012,000
Less 64 shares held in treasury, at cost (302,000)
------------
Total stockholders' equity 26,740,000
------------
Total liabilities and stockholders' equity $ 37,882,000
============
The accompanying notes are an integral part of these financial statements.
<PAGE>
McCALL AFFILIATED COMPANIES
---------------------------
COMBINED STATEMENTS OF OPERATIONS AND RETAINED EARNINGS
-------------------------------------------------------
FOR THE YEAR ENDED DECEMBER 31, 1995
------------------------------------
OPERATING REVENUE $ 20,029,000
COSTS AND EXPENSES:
Vessel operations 14,982,000
Administrative and general 1,045,000
Depreciation 2,102,000
------------
Total operating expenses 18,129,000
------------
INCOME FROM OPERATIONS 1,900,000
------------
OTHER INCOME (EXPENSES):
Gain on sale of equipment 85,000
Interest income 74,000
Interest expense (195,000)
------------
(36,000)
------------
INCOME BEFORE INCOME TAXES 1,864,000
INCOME TAX EXPENSE (BENEFIT):
Current 923,000
Deferred (211,000)
------------
Total income tax expense 712,000
EQUITY IN NET LOSS OF 50% OR LESS OWNED COMPANY (53,000)
------------
NET INCOME $ 1,099,000
============
RETAINED EARNINGS, beginning of year $ 25,914,000
NET INCOME 1,099,000
DIVIDENDS PAID (1,000)
------------
RETAINED EARNINGS, end of year $ 27,012,000
============
The accompanying notes are an integral part of these financial statements.
<PAGE>
McCALL AFFILIATED COMPANIES
---------------------------
COMBINED STATEMENT OF CASH FLOWS
--------------------------------
FOR THE YEAR ENDED DECEMBER 31, 1995
------------------------------------
CASH FLOWS FROM OPERATING ACTIVITIES:
Net income $ 1,099,000
Depreciation 2,102,000
Gain on sale of equipment (85,000)
Equity in net loss of 50% or less owned company 53,000
Deferred income taxes (211,000)
Changes in operating assets and liabilities:
Increase in accounts receivable (642,000)
Increase in prepaid expenses and other (712,000)
Increase in accounts payable and accrued expenses 178,000
-----------
Net cash provided by operating activities 1,782,000
CASH FLOWS FROM INVESTING ACTIVITIES:
Purchase of property and equipment (1,671,000)
Purchase of securities (28,000)
Proceeds from sale of equipment 115,000
Investments in 50% or less owned company (250,000)
-----------
Net cash used in investing activities (1,834,000)
CASH FLOWS FROM FINANCING ACTIVITIES:
Proceeds from capital contributions 4,000
Proceeds from notes payable 1,625,000
Proceeds from stockholders' loans 658,000
Payments on notes payable (1,323,000)
Payments on stockholders' loans (463,000)
Dividends paid (1,000)
-----------
Net cash provided by financing activities 500,000
NET INCREASE IN CASH AND CASH EQUIVALENTS 448,000
CASH AND CASH EQUIVALENTS AT BEGINNING OF YEAR 3,502,000
-----------
CASH AND CASH EQUIVALENTS AT END OF YEAR $ 3,950,000
===========
SUPPLEMENTAL CASH FLOW INFORMATION:
Cash paid in 1995 for taxes $ 1,100,000
Cash paid in 1995 for interest $ 211,000
The accompanying notes are an integral part of these financial statements.
<PAGE>
McCALL AFFILIATED COMPANIES
---------------------------
NOTES TO COMBINED FINANCIAL STATEMENTS
--------------------------------------
DECEMBER 31, 1995
-----------------
1. SUMMARY OF SIGNIFICANT ACCOUNTING POLICIES:
- ----------------------------------------------
The McCall Affiliated Companies (the "Companies") furnish vessel support in the
offshore oil and gas exploration and production industry. The Companies operate
in the United States Gulf of Mexico.
Principles of Combination
- -------------------------
The combined financial statements include the accounts of a group of affiliated
companies which are under the common management of Mr. Norman McCall and common
ownership of Mr. McCall and other family members. McCall Enterprises, Inc. is
the primary holding company of the affiliated companies. The companies in the
group are as follows:
Cameron Boat Rentals, Inc.
Cameron Crews, Inc.
McCall's Boat Rentals, Inc.
Gladys McCall, Inc.
Philip Alan McCall, Inc.
Gulf Marine Transportation, Inc.
Carroll McCall, Inc.
N.F. McCall Crews, Inc.
McCall Marine Services, Inc.
McCall Crewboats, L.L.C.
McCall Support Vessels, Inc.
McCall Enterprises, Inc.
All intercompany balances and transactions have been eliminated.
Each member of the group has a December 31 fiscal year-end except McCall's Boat
Rentals, Inc., which has a fiscal year ending September 30. The financial
information of McCall's Boat Rentals, Inc. has been restated in the combined
financial statements to reflect a year end date of December 31.
The preparation of financial statements in conformity with generally accepted
accounting principles requires management to make estimates and assumptions that
affect the reported amounts of assets and liabilities and disclosure of
contingent assets and liabilities at the date of the financial statements and
the reported amounts of revenues and expenses during the reporting period.
Actual results could differ from those estimates.
Accounts Receivable
- -------------------
Customers of vessel support services are primarily major and large independent
oil and gas exploration and production companies. The Companies' customers are
granted credit on a short-term basis and related credit risks are considered
minimal.
<PAGE>
Investments in Marketable Securities
- ------------------------------------
At December 31, 1995, the Companies held $623,000 in investments in U. S.
Government debt securities. These securities are accounted for as
held-to-maturity securities; and, accordingly are reflected at amortized cost,
which approximates fair value at December 31, 1995.
Property and Equipment
- ----------------------
Property and equipment are recorded at historical cost and depreciated over the
estimated useful lives of the related assets. Depreciation is computed on the
straight-line method for financial reporting purposes. Maintenance and repair
costs, including routine drydock inspections on vessels in accordance with
maritime regulations, are charged to operating expense as incurred. Expenditures
that extend the useful life or improve the marketing and commercial
characteristics of vessels and major renewals or improvements to other
properties are capitalized.
Vessels and related equipment are depreciated over 20 years; all other property
and equipment are depreciated and amortized over approximately five to ten
years.
Fair Value of Financial Instruments
- -----------------------------------
The carrying value of long-term debt approximates its fair value.
Loans from stockholders are generally advances made from stockholders. The
Companies believe it is not practicable to estimate the fair market values of
these loans.
Income Taxes
- ------------
The Companies follow the principles of Statement of Financial Accounting
Standards ("SFAS") No. 109, the financial accounting and reporting standard for
income taxes.
Deferred income tax assets and liabilities have been provided in recognition of
the income tax effect attributable to the difference between assets and
liabilities reported in the tax return and financial statements. Deferred tax
assets or liabilities are provided using the enacted tax rates expected to apply
to taxable income in the periods in which the deferred tax assets and
liabilities are expected to be settled or realized.
Each company files its own Federal income tax return except for Gladys McCall,
Inc., which files a consolidated return with its parent, Cameron Boat Rentals,
Inc. Three of the companies have a net operating loss carryforward of $31,000.
If not offset against future years with net income, $7,000 will expire in year
2008, $15,000 will expire in the year 2009, and $9,000 will expire in the year
2010.
McCall Crewboats, L.L.C. is treated as a partnership for income tax purposes;
therefore, income taxes are the responsibility of the individual members.
Accordingly, no provision for income taxes is provided for this company in the
accompanying statement of operations. The operating results of McCall Crewboats,
L.L.C. are not material relative to the combined group.
Revenue Recognition
- -------------------
The Companies' marine transportation business earns revenue primary from time or
bareboat charter of vessels to customers based upon daily rates of hire. Vessel
charters may range from several days to several years.
<PAGE>
Earnings Per Share
- ------------------
Management believes that earnings per share for the combined Companies is not
relevant.
New Accounting Standard
- -----------------------
In 1995, SFAS No. 121 - "Accounting for Impairment of Long-Lived Assets and for
Long-Lived Assets to be Disposed Of" was issued and requires adoption by the
Companies in fiscal 1996. Management believes that such adoption will not have a
material effect on the Companies' financial statements taken as a whole.
2. INVESTMENT IN 50% OR LESS OWNED COMPANY:
- -------------------------------------------
In August 1995, McCall Support Vessels, Inc. ("MSV") and SEACOR Holdings, Inc.
("SEACOR") organized and formed a Louisiana limited liability company, SEAMAC
OFFSHORE, L.L.C. ("SEAMAC") for the primary purpose of acquiring, owning,
operating, and managing marine vessels. SEAMAC's two equally participating
members are MSV and a wholly owned subsidiary of SEACOR. At December 31, 1995,
two crew vessels were bareboat chartered by SEAMAC from the Companies and were
operating in Nigeria. For the year ended December 31, 1995, the Company's equity
in the loss of SEAMAC, net of applicable income taxes, was $53,000. At December
31, 1995, SEAMAC had one crew vessel with an estimated hull cost of $1,337,000
and approximately $1,000,000 in engine and electronic costs which is under
construction, and subsequent to year end, the members of SEAMAC agreed to
construct two additional crew vessels with an estimated aggregate cost of
approximately $7.5 million. The members of SEAMAC are expected to fund the costs
to construct these vessels.
3. LONG-TERM DEBT:
- ------------------
Monthly payments on principal and interest at 9.75% per annum are made on a
mortgage note outstanding to one bank on one motor vessel as follows:
Monthly
Vessel Principal Balance Maturity
------ --------- ------- --------
Phyllis II $ 13,000 $1,596,000 2007
Current portion (156,000)
----------
$1,440,000
==========
Maturities of long-term debt are as follows:
Year Ended
December 31,
------------
1996 $ 156,000
1997 156,000
1998 156,000
1999 156,000
2000 156,000
Thereafter 816,000
-----------
$ 1,596,000
===========
<PAGE>
4. LOANS FROM STOCKHOLDERS:
- ---------------------------
The $1,665,000, of loans from stockholders is made up of unsecured loans due to
Norman and Joyce McCall. The loans are due on demand and bear interest at 7% per
annum. Monthly payments of $70,000 of principal are due until the loans are
called. On May 3, 1996, the loans from stockholders were repaid in full.
5. INCOME TAXES:
- ----------------
Income tax expense (benefit) consisted of the following components for the year
ended December 31, 1995, in thousands of dollars:
1995
----
Current:
State $ 113,000
Federal 810,000
----------
923,000
Deferred:
Federal (211,000)
----------
$ 712,000
==========
The following table reconciles the difference between the statutory Federal
income tax rate for the Company to the effective income tax rate:
1995
----
Statutory rate 34.0%
State income taxes and other 4.2%
----
38.2%
====
The components of the net deferred income tax liability were as follows, as of
December 31, 1995 in thousands of dollars:
1995
----
Deferred tax assets:
Equity in net loss of 50% or less owned company $ 33,000
------------
Total deferred tax assets $ 33,000
------------
Deferred tax liabilities:
Property and equipment $ (6,420,000)
Other (610,000)
------------
Total deferred tax liabilities $ (7,030,000)
------------
Net deferred tax liabilities $ (6,997,000)
============
<PAGE>
6. CAPITAL STOCK:
- -----------------
McCall Enterprises, Inc., the principal holding company of the Companies, has
2,522 shares of no par, non cumulative preferred stock authorized, issued and
outstanding for a total of $12,000 at December 31, 1995. The Companies have
common stock totalling $18,000 after eliminations.
Four companies hold, in their respective treasuries, shares of common stock
purchased ranging in number from approximately 4 to 40, at a cost ranging from
approximately $400 to $8,000 per share. These shares of common stock represent
approximately 4%, 15%, 5%, and 40%, respectively, of the issued shares of
Cameron Boat Rentals, Inc., Gladys McCall, Inc., Cameron Crews, Inc., and Gulf
Marine Transportation, Inc.
7. COMMITMENTS:
- ---------------
As of December 31, 1995 the Companies were committed to the purchase of two new
motor vessels being built at an approximate cost of $4,360,000, with expected
delivery in November, 1996 and March, 1997.
8. 401(k) PLAN:
- ---------------
The Companies established the N. F. McCall Crews, Inc. Employees Savings Trust
("the Plan") effective August 30, 1995. This defined contribution plan provides
eligible employees with an opportunity to accumulate retirement savings.
Requirements for eligibility include, (i) one year of full time employment, and
(ii) attainment of 21 years of age.
Participants may contribute up to 15% of their pre-tax annual compensation.
During 1995, the Companies matched 1/3 of the first 6% of an employee's
contributions to the Plan. The Board of Directors of the Companies determine the
matching contribution annually. The participants' and Companies' contributions
are funded to the Plan monthly.
In general, participants are fully vested in the Companies' contributions upon
(i) attaining the age of 65, (ii) death, (iii) becoming disabled, or (iv)
completing three years of employment service. Forfeitures of Companies'
contributions for non-vested and terminated employees will be used to reduce
future contributions of the Companies or pay administrative expenses.
The Companies' contribution to the Plan was $13,000 for the year ended December
31, 1995.
The Companies offer no other employee or post-employment benefits.
9. MAJOR CUSTOMERS
- ------------------
Three customers accounted for 35%, 16% and 11%, respectively, of revenues in the
year ended December 31, 1995.
10. SUBSEQUENT EVENT:
- ---------------------
On April 18, 1996, the Companies signed a letter of intent with SEACOR whereby
SEACOR will acquire all of the outstanding capital stock of the Companies in
exchange for 1,215,500 shares of SEACOR common stock. The transaction is
expected to qualify as a tax-free reorganization and be consummated in the
second quarter of 1996. It is conditioned upon, among other things, satisfactory
completion of due diligence, execution of definitive documentation and receipt
of necessary governmental approvals.
<PAGE>
ANNEX B
<PAGE>
<TABLE>
<CAPTION>
SEACOR Holdings, Inc. and Subsidiaries
Pro Forma Condensed Consolidated Balance Sheet
as of March 31, 1996
McCall
Pro Forma
Historical McCall Adjustments Pro Forma
---------- ------ ----------- ---------
ASSETS
<S> <C> <C> <C> <C>
Cash $ 24,849,000 $ 5,532,000 $ 102,000 (2) $ 30,483,000
Investment securities - 923,000 - 923,000
Trade and other receivables 36,095,000 3,461,000 642,000 (2) 40,198,000
Affiliate receivables 690,000 - (294,000) (2) 396,000
Inventories 1,610,000 - - 1,610,000
Prepaid expenses and other 1,677,000 766,000 - 2,443,000
-------------- --------------- -------------- ---------------
Total current assets 64,921,000 10,682,000 450,000 76,053,000
-------------- --------------- -------------- ---------------
Investments in and Receivables from 50% or Less 6,577,000 250,000 (500,000) (2) 6,327,000
Owned Companies, at Equity -
-
-
Property, Equipment, Land, and Capital Leases 289,645,000 48,800,000 86,000 (2) 338,531,000
Less-accumulated depreciation (59,001,000) (21,208,000) - (80,209,000)
-------------- --------------- -------------- ---------------
Net property and equipment 230,644,000 27,592,000 86,000 258,322,000
-------------- --------------- -------------- ---------------
Other Assets 14,029,000 288,000 - 14,317,000
============== =============== ============== ===============
$ 316,171,000 $ 38,812,000 $ 36,000 $ 355,019,000
============== =============== ============== ===============
LIABILITIES AND STOCKHOLDERS' EQUITY
Current portion of long-term debt $ 1,476,000 $ 156,000 $ - $ 1,632,000
Loans from stockholders - 1,570,000 - 1,570,000
Accounts payable - trade 7,480,000 653,000 - 8,133,000
Accounts payable - affiliates 838,000 - - 838,000
Other current liabilities 11,637,000 1,087,000 36,000 (2) 12,760,000
-------------- --------------- -------------- ---------------
Total current liabilities 21,431,000 3,466,000 36,000 24,933,000
-------------- --------------- -------------- ---------------
Long-Term Debt 98,557,000 1,325,000 - 99,882,000
Deferred Income Taxes 30,177,000 6,551,000 - 36,728,000
-
Deferred Revenue, Gain, and Other Liabilities 2,253,000 - - 2,253,000
Minority Interest and Indebtedness to Minority Shareholder 1,834,000 - - 1,834,000
-
Stockholders' Equity: -
Contributed capital - 30,000 (30,000) (1) -
Common stock 86,000 - 12,000 (1) 98,000
Additional paid-in capital 127,326,000 - 18,000 (1) 127,344,000
Retained earnings 36,735,000 27,742,000 (302,000) (1) 64,175,000
Less - shares held in treasury (576,000) (302,000) 302,000 (1) (576,000)
Less unamortized restricted stock (140,000) - - (140,000)
Currency translation adjustments (1,512,000) - - (1,512,000)
-------------- --------------- -------------- ---------------
Total stockholders' equity 161,919,000 27,470,000 - 189,389,000
-------------- --------------- -------------- ---------------
$ 316,171,000 $ 38,812,000 $ 36,000 $ 355,019,000
============== =============== ============== ===============
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
SEACOR Holdings, Inc. and Subsidiaries
Pro Forma Condensed Consolidated Statement of Operations
For the Year Ended December 31, 1993
McCall
Pro Forma
Historical McCall Adjustments Pro Forma
---------- ------ ----------- ---------
<S> <C> <C> <C> <C>
Operating Revenues:
Marine $ 73,720,000 $ 18,448,000 $ - $ 92,168,000
Environmental-
Oil spill response - - - -
Retainer and other services - - - -
-------------- -------------- ------------- ----------------
73,720,000 18,448,000 - 92,168,000
-------------- -------------- ------------- ----------------
Costs and Expenses:
Cost of Oil Spill Response - - - -
Operating Expenses-
Marine 41,718,000 12,240,000 - 53,958,000
Environmental - - - -
Administrative and general 6,097,000 1,090,000 (676,000) (3) 6,511,000
Depreciation and amortization 10,006,000 2,101,000 - 12,107,000
-------------- -------------- ------------- ----------------
57,821,000 15,431,000 (676,000) 72,576,000
-------------- -------------- ------------- ----------------
Operating Income 15,899,000 3,017,000 676,000 19,592,000
-------------- -------------- ------------- ----------------
Other Income (Expense):
Interest on Debt (4,359,000) (423,000) - (4,782,000)
Interest Income 1,010,000 53,000 - 1,063,000
Gain/(loss) from equipment sales or retirements (8,000) - - (8,000)
Other 116,000 6,000 - 122,000
-------------- -------------- ------------- ----------------
(3,241,000) (364,000) - (3,605,000)
-------------- -------------- ------------- ----------------
Income Before Income Taxes, Minority Interest and Equity
in Net Earnings of 50% or Less Owned Companies 12,658,000 2,653,000 676,000 15,987,000
Income Tax Expense (Benefit) 4,391,000 948,000 237,000 (3) 5,576,000
-------------- -------------- ------------- ----------------
Income Before Minority Interest and Equity in Net Earnings of
50% or Less Owned Companies 8,267,000 1,705,000 439,000 10,411,000
Minority Interest in (Income) Loss of a Subsidiary (51,000) - - (51,000)
Equity in Net Earnings of 50% or Less Owned Companies 287,000 - - 287,000
-------------- -------------- ------------- ----------------
Net Income $ 8,503,000 $ 1,705,000 $ 439,000 $ 10,647,000
============== ============== ============= ================
Earnings Per Common Share - Assuming No Dilution: $1.46 $1.50
============== ===============
Earnings Per Common Share - Assuming Full Dilution: $1.36 $1.41
============== ===============
Weighted Average Common Shares:
Assuming no dilution 5,821,147 7,121,147
Assuming full dilution 7,060,174 8,360,174
<PAGE>
SEACOR Holdings, Inc. and Subsidiaries
Pro Forma Condensed Consolidated Statement of Operations
For the Year Ended December 31, 1994
McCall
Pro Forma
Historical McCall Adjustments Pro Forma
---------- ------ ----------- ---------
<S> <C> <C> <C> <C>
Operating Revenues:
Marine $ 74,366,000 $ 19,619,000 $ - $ 93,985,000
Environmental-
Oil spill response - - - -
Retainer and other services - - - -
-------------- -------------- ------------- -------------
74,366,000 19,619,000 - 93,985,000
-------------- -------------- ------------- -------------
Costs and Expenses:
Cost of Oil Spill Response - - - -
Operating Expenses-
Marine 42,066,000 13,794,000 - 55,860,000
Environmental - - - -
Administrative and general 6,149,000 1,129,000 (676,000) (3) 6,601,997
Depreciation and amortization 11,983,000 2,125,000 - 14,108,000
-------------- -------------- ------------ -------------
60,198,000 17,048,000 (676,000) 76,569,997
-------------- -------------- ------------- -------------
Operating Income 14,168,000 2,571,000 676,000 17,415,003
-------------- -------------- ------------- -------------
Other Income (Expense):
Interest on Debt (5,159,000) (263,000) - (5,422,000)
Interest Income 1,822,000 52,000 - 1,874,000
Gain/(loss) from equipment sales or retirements (316,000) (72,000) - (388,000)
Other (267,000) - - (267,000)
-------------- -------------- ------------- -------------
(3,920,000) (283,000) - (4,203,000)
-------------- -------------- ------------- -------------
Income Before Income Taxes, Minority Interest and Equity
in Net Earnings of 50% or Less Owned Companies 10,248,000 2,288,000 676,000 13,212,003
Income Tax Expense (Benefit) 3,501,000 867,000 237,000 (3) 4,604,997
-------------- -------------- ------------- -------------
Income Before Minority Interest and Equity in Net Earnings of 50%
or Less Owned Companies 6,747,000 1,421,000 439,000 8,607,006
Minority Interest in (Income) Loss of a Subsidiary 184,000 - - 184,000
Equity in Net Earnings of 50% or Less Owned Companies 975,000 - - 975,000
-------------- -------------- ------------- -------------
Net Income $ 7,906,000 $ 1,421,000 $ 439,000 $ 9,766,006
============== ============== ============= =============
Earnings Per Common Share - Assuming No Dilution $1.35 $1.37
Earnings Per Common Share - Assuming Full Dilution $1.24 $1.27
Weighted Average Common Shares:
Assuming no dilution 5,835,805 7,135,805
Assuming full dilution 8,318,994 9,618,994
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
SEACOR Holdings, Inc. and Subsidiaries
Pro Forma Condensed Consolidated Statement of Operations
For the Year Ended December 31, 1995
1995 McCall
Transactions McCall Pro Forma
Historical (Note C) (Note B) Adjustments Pro Forma
---------- -------- -------- ----------- ---------
<S> <C> <C> <C> <C> <C>
Operating Revenues:
Marine $ 84,504,000 $ 45,668,000 $ 20,029,000 $ 361,000 (2) $ 150,562,000
Environmental-
Oil spill response 8,927,000 968,000 - - 9,895,000
Retainer and other services 12,838,000 4,003,000 - - 16,841,000
-------------- --------------- ------------- -------------- ---------------
106,269,000 50,639,000 20,029,000 361,000 177,298,000
-------------- --------------- ------------- -------------- ---------------
Costs and Expenses:
Cost of Oil Spill Response 7,643,000 791,000 - - 8,434,000
Operating Expenses-
Marine 50,690,000 31,002,000 14,982,000 533,000 (2) 97,207,000
Environmental 4,580,000 1,167,000 - - 5,747,000
Administrative and general 12,908,000 6,033,000 1,045,000 (574,000) (3) 19,412,000
Depreciation and amortization 16,740,000 5,823,000 2,102,000 - 24,665,000
-------------- --------------- ------------- -------------- ---------------
92,561,000 44,816,000 18,129,000 (41,000) 155,465,000
-------------- --------------- ------------- -------------- ---------------
Operating Income 13,708,000 5,823,000 1,900,000 402,000 21,833,000
-------------- --------------- ------------- -------------- ---------------
Other Income(Expense) :
Interest on Debt (6,486,000) (3,525,000) (195,000) - (10,206,000)
Interest Income 2,296,000 123,000 74,000 - 2,493,000
Gain/(loss) from equipment sales
or retirements 3,765,000 467,000 85,000 - 4,317,000
Other 667,000 (2,000) - - 665,000
-------------- --------------- ------------- -------------- ---------------
242,000 (2,937,000) (36,000) - (2,731,000)
-------------- --------------- ------------- -------------- ---------------
Income Before Income Taxes, Minority
Interest, and Equity in Net Earnings
of 50% or Less Owned Companies 13,950,000 2,886,000 1,864,000 402,000 19,102,000
Income Tax Expense (Benefit) 4,858,000 1,035,000 712,000 141,000 (2) (3) 6,746,000
-------------- --------------- ------------- -------------- ---------------
Income Before Minority Interest and Equity
in Net Earnings of 50% or
Less Owned Companies 9,092,000 1,851,000 1,152,000 261,000 12,356,000
Minority Interest in (Income) Loss
of a Subsidiary 321,000 - - - 321,000
Equity in Net Earnings of 50% or Less
Owned Companies 813,000 - (53,000) 112,000 (2) 872,000
-------------- --------------- ------------- -------------- ---------------
Income before Extraordinary Item 10,226,000 1,851,000 1,099,000 373,000 13,549,000
Extraordinary Item - Loss on
Extinguishment of Debt - - - -
Net Income $ 10,226,000 $ 1,851,000 $ 1,099,000 $ 373,000 $ 13,549,000
============== =============== ============= ============== ===============
Earnings Per Common Share -
Assuming No Dilution $1.64 $1.38
Earnings Per Common Share -
Assuming Full Dilution $1.44 $1.29
Weighted Average Common Shares:
Assuming no dilution 6,240,780 9,812,575
Assuming full dilution 8,725,782 12,295,764
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
SEACOR Holdings, Inc. and Subsidiaries
Pro Forma Condensed Consolidated Statement of Operations
For the Three Months Ended March 31,1995
McCall
Pro Forma
Historical McCall Adjustments Pro Forma
---------- ------ ----------- ---------
<S> <C> <C> <C> <C>
Operating Revenues:
Marine $ 15,288,000 $ 4,895,000 $ - $ 20,183,000
Environmental-
Oil spill response - - - -
Retainer and other services - - - -
-------------- -------------- -------------- ----------------
15,288,000 4,895,000 - 20,183,000
-------------- -------------- -------------- ----------------
Cost and Expenses:
Cost of Oil Spill Response - - - -
Operating Expenses-
Marine 9,267,000 3,889,000 - 13,156,000
Environmental - - -
Administrative and general 1,406,000 256,000 (169,000)(3) 1,493,000
Depreciation and amortization 3,120,000 520,000 - 3,640,000
-------------- -------------- -------------- ----------------
13,793,000 4,665,000 (169,000) 18,289,000
-------------- -------------- -------------- ----------------
Operating Income 1,495,000 230,000 169,000 1,894,000
-------------- -------------- -------------- ----------------
Other Income (Expense):
Interest on Debt (1,215,000) (30,000) - (1,245,000)
Interest Income 659,000 11,000 - 670,000
Gain/(loss) from equipment sales or retirements 473,000 - - 473,000
Other 224,000 - - 224,000
-------------- -------------- -------------- ----------------
141,000 (19,000) - 122,000
-------------- -------------- -------------- ----------------
Income Before Income Taxes, Minority Interest, and Equity
in Net Earnings of 50% or Less Owned Companies 1,636,000 211,000 169,000 2,016,000
Income Tax Expense (Benefit) 562,000 81,000 59,000 (3) 702,000
-------------- -------------- -------------- ----------------
Income Before Minority Interest and Equity in Net Earnings of 50%
or Less Owned Companies 1,074,000 130,000 110,000 1,314,000
Minority Interest in (Income) Loss of a Subsidiary 97,000 - - 97,000
Equity in Net Earnings of 50% or Less Owned Companies 236,000 - - 236,000
-------------- -------------- -------------- ----------------
Net Income $ 1,407,000 $ 130,000 $ 110,000 $ 1,647,000
============== ============== ============== ================
Earnings Per Common Share - Assuming No Dilution $0.24 $0.23
Earnings Per Common Share - Assuming Full Dilution $0.24 $0.23
Weighted Average Common Shares:
Assuming no dilution 5,894,398 7,194,398
Assuming full dilution 8,332,504 9,632,504
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
SEACOR Holdings, Inc. and Subsidiaries
Pro Forma Condensed Consolidated Statement of Operations
For the Three Months Ended March 31, 1996
McCall
Pro Forma
Historical McCall Adjustments Pro Forma
---------- ------ ----------- ---------
<S> <C> <C> <C> <C>
Operating Revenues:
Marine $ 37,222,000 $ 5,328,000 $ 503,000 (2) $ 43,053,000
Environmental-
Oil spill response 2,422,000 - - 2,422,000
Retainer and other services 4,431,000 - - 4,431,000
------------- ------------- -------------- ----------------
44,075,000 5,328,000 503,000 49,906,000
------------- ------------- -------------- ----------------
Cost and Expenses:
Cost of Oil Spill Response 2,046,000 - - 2,046,000
Operating Expenses-
Marine 21,484,000 3,412,000 337,000 (2) 25,233,000
Environmental 1,249,000 - - 1,249,000
Administrative and general 5,226,000 295,000 7,000 (2) 5,384,000
(144,000)(3) -
Depreciation and amortization 5,165,000 535,000 - 5,700,000
------------- ------------- -------------- ----------------
35,170,000 4,242,000 200,000 39,612,000
------------- ------------- -------------- ----------------
Operating Income 8,905,000 1,086,000 303,000 10,294,000
------------- ------------- -------------- ----------------
Other Income (Expense):
Interest on Debt (1,759,000) (62,000) - (1,821,000)
Interest Income 669,000 11,000 2,000 (2) 682,000
Gain/(loss) on equipment sales or retirements 243,000 - - 243,000
Other 249,000 - 13,000 (2) 262,000
------------- ------------- -------------- ----------------
(598,000) (51,000) 15,000 (634,000)
------------- ------------- -------------- ----------------
Income Before Income Taxes, Minority Interest, and Equity
in Net Earnings of 50% or Less Owned Companies 8,307,000 1,035,000 318,000 9,660,000
Income Taxes 2,931,000 362,000 111,000 (2) (3) 3,404,000
------------- ------------- -------------- ----------------
Income Before Minority Interest, Equity in Net Earnings of 50%
or Less Owned Companies, and Discontinued Operations 5,376,000 673,000 207,000 6,256,000
Minority Interest in (Income) Loss of a Subsidiary 76,000 - - 76,000
Equity in Net Earnings of 50% or Less Owned Companies 141,000 57,000 (113,000)(2) 85,000
------------- ------------- -------------- ----------------
Income before Extraordinary Item 5,593,000 730,000 94,000 6,417,000
Extraordinary Item - Loss on Extinguishment of Debt - - - -
Net Income $ 5,593,000 $ 730,000 $ 94,000 $ 6,417,000
============= ============= ============== ================
Earnings Per Common Share - Assuming No Dilution $0.66 $0.65
Earnings Per Common Share - Assuming Full Dilution $0.56 $0.57
Weighted Average Common Shares:
Assuming no dilution 8,524,550 9,824,550
Assuming full dilution 11,075,199 12,375,199
</TABLE>
<PAGE>
SEACOR HOLDINGS, INC. AND SUBSIDIARIES
NOTES TO PRO FORMA CONDENSED CONSOLIDATED FINANCIAL STATEMENTS
A. Basis of Presentation
The McCall Pro Forma adjustments to the Pro Forma Condensed
Consolidated Financial Statements reflect the consummation of the
McCall Acquisition as a pooling of interests transaction. The
adjustments do not include direct expenses related to the McCall
Acquisition, which will be expensed at the time of the McCall
Acquisition. The pro forma data are not necessarily indicative of the
operating results or financial position that would have occurred had
the McCall Acquisition been consummated at the dates indicated, nor
necessarily indicative of future operating results or financial
position.
Pro forma per share data are based on the number of shares of Common
Stock ("SEACOR Common Stock" ) that would have been outstanding had
the McCall Acquisition occurred at the beginning of the earliest
period presented.
B. McCall Pro Forma Adjustments
1. This adjustment reflects the issuance of approximately 1,300,000
shares of SEACOR Common Stock in exchange for all of the capital
stock of the McCall Affiliated Companies and the retirement of
the capital stock of the McCall Affiliated Companies held in
treasury. The actual number of shares of Common Stock to
be issued pursuant to the McCall Acquisition is subject to an
adjustment based upon a final determination of the McCall
Affiliated Companies' working capital as of the date of closing.
2. In August 1995, the Company and an affiliate of McCall formed
SEAMAC OFFSHORE, L.L.C. ("SEAMAC"), which was jointly owned and
which operated two vessels in Nigeria. Prior to the McCall
Acquisition, SEACOR recorded its interest in this venture based
upon its 50% equity interest. As a result of the McCall
Acquisition, this venture is to be dissolved and the assets will
be wholly owned by the Company. This adjustment consolidates 100%
of SEAMAC with SEACOR.
3. These adjustments reflect the replacement of certain historical
salary expense with revised salary costs based upon an employment
agreement entered into between an officer of McCall and SEACOR.
C. The 1995 Transactions
As discussed in the Company's annual report to Shareholders on Form
10-K for the year ended December 31, 1995, the Company completed
several transactions during 1995 (the NRC Merger, the Graham
Acquisition, the 1995 CNN Transaction, the Coastal/Phibro Transactions
and the 1995 Common Stock Offering - "The 1995 Transactions"). The pro
forma condensed consolidated statement of operations for the year
ended December 31, 1995 has been prepared based upon certain pro forma
adjustments to historical financial information assuming the 1995
Transactions occurred on January 1, 1995. The pro forma condensed
consolidated statement of operations is not necessarily indicative of
the actual results that would have been achieved if the 1995
Transactions had occurred on January 1, 1995 nor is it necessarily
indicative of future results.
The pro forma adjustments relating to the 1995 Transactions are
described below. For purposes of calculating these adjustments, the
Company assumed that each of the 1995 Transactions was completed no
later than September 30, 1995. The use of the actual closing dates for
the 1995 CNN Transaction, the Coastal/Phibro Transactions and the 1995
Common Stock Offering, which all closed before December 31, 1995,
would not have a material effect on these pro forma adjustments.
<PAGE>
<TABLE>
<CAPTION>
(in thousands)
Coastal/
Phibro
Transac- Sale of
NRC Graham CNN tions Common The 1995
Merger Acquisition Transaction (23) Stock Transactions
------------ --------------- -------------- ----------- -------- ------------
<S> <C> <C> <C> <C> <C> <C>
Operating Revenues:
Marine $(86) (1) $34,681 (4) $14,710 (15) $- $- $45,668
(814) (5) (3,795) (16)
972 (17)
Environmental-
Oil spill response 968 (2) - - - - 968
Retainer and other services 4,003 (2) - - - - 4,003
--------- ----------- ---------- ------- ------ ---------
4,885 33,867 11,887 - 50,639
--------- ----------- ---------- ------- ------ ---------
Cost and Expenses:
Cost of Oil Spill Response 791 (2) - - - - 791
Operating Expenses-
Marine (86) (1) 23,340 (4) 9,274 (15) - - 31,002
(719) (5) 334 (18)
(1,141) (19)
Environmental 1,167 (2) - - - - 1,167
Administrative and general 1,645 (2) 3,996 (4) 1,358 (20) - - 6,033
(70) (5)
(446) (7)
(825) (6)
375 (14)
Depreciation and amortization 777 (2) 3,431 (4) 1,299 (21) 171 (24) - 5,823
91 (3) (142) (5)
196 (8)
--------- ----------- ---------- ------- ------ ---------
4,385 29,136 11,124 171 - 44,816
--------- ----------- ---------- ------- ------ ---------
Operating Income 500 4,731 763 (171) - 5,823
--------- ----------- ---------- ------- ------ ---------
Other (Expense) Income:
Interest on Debt (302) (2) (531) (4) - - 970 (25) (3,525)
531 (11)
(4,134) (10)
(59) (9)
Interest Income 12 (2) 111 (4) - - - 123
Gain on Sale or Retirement of Equipment - 467 (4) - - - 467
Other (6) (2) 450 (4) - - - (2)
(446) (7)
--------- ----------- ---------- ------- ------ ---------
(296) (3,611) - - 970 (2,937)
--------- ----------- ---------- ------- ------ ---------
Income Before Income Taxes, Minority Interest,
Equity in Net Earnings of 50% or Less Owned
Companies, and Discontinued Operations 204 1,120 763 (171) 970 2,886
Income Taxes 123 (2) 36 (4) 201 (22) - 330 (26) 1,035
1,463 (12)
(1,118) (12)
--------- ----------- ---------- ------- ------ ---------
Income Before Minority Interest, Equity in Net
Earnings of 50%or Less Owned Companies,
and Discontinued Operations 81 739 562 (171) 640 1,851
Minority Interest in(Income) Loss of a Subsidiary - - - - - -
Equity in Net Earnings of 50% or Less Owned - -
------ ---------
Companies - - - -
--------- ----------- ---------- ------- ------ ---------
Income Before Discontinued Operations 81 739 562 (171) 640 1,851
Discontinued Operations - (81) (4) - - - -
81 (13)
--------- ----------- ---------- ------- ------ ---------
Net Income $81 $739 $562 $(171) $640 $1,851
========= =========== ========== ======= ====== =========
<FN>
1) To reflect the elimination of certain intercompany transactions between
subsidiaries of the Company and subsidiaries of NRC Holdings.
2) To reflect the pre-acquisition results of operations of NRC Holdings, Inc.
and its subsidiaries.
3) To reflect the amortization of $3.6 million of goodwill based upon the
straight line method over a 20- year period which is the estimated period
of benefit.
4) To reflect the pre-acquisition results of operations of Graham, as restated
to correct depreciable lives of fixed assets.
<PAGE>
5) To exclude the operating results of Offshore Trawlers, Inc., the Graham
entity that operates a shipyard whose assets were not included in the
Graham Acquisition.
6) To reflect the elimination of $1.5 million of certain historical salary
expense offset by $0.4 million of additional annual wage costs estimated to
be incurred by the Company to manage the acquired assets. The Company does
not expect to incur more than $0.4 million of additional annual wage costs
to manage these assets based on salaries paid to its employees who perform
similar functions for the Company's other vessels.
7) To reflect the elimination of rental fees charged to John E. Graham & Sons
by a non-acquired affiliate company.
8) To reflect depreciation associated with the acquired assets relative to
such expense as reported by Graham. The Company recorded the acquired
assets at their fair market values in accordance with the purchase method
of accounting. Consistent with the Company's depreciation policies, the
depreciable lives assigned to each of the vessels acquired in the Graham
Acquisition were determined by subtracting from 20 years for crew boats and
25 years for supply and utility vessels the period from each vessel's
original construction date to its acquisition date.
9) To amortize deferred debt issuance costs to interest expense over the life
of the bank debt that financed the transaction utilizing the straight-line
method that approximates the effective interest method.
10) To reflect additional interest expense with respect to the $74.0 million of
indebtedness incurred in connection with the Graham Acquisition, assuming
no principal repayments during the period.
11) To eliminate interest expense on debt that was not assumed in connection
with the acquisition.
12) To reflect the income tax effect of Graham income, which was primarily
earned in a partnership, assuming an effective tax rate of 34%.
13) To reflect the final activity of a wholly owned subsidiary of Offshore
Trawlers, Inc. which discontinued its operations in 1991.
14) To recognize the amortization of deferred cost relating to non-cancellable
consulting contracts with the former owners of Graham as administrative
salary expense over the terms of the related contracts (3-5 years).
15) To reflect the operating revenues and expenses of (i) the five vessels
acquired from CNN, (ii) the 10 vessels previously bareboat chartered-out by
the Company to CNN and (iii) the one vessel bareboat chartered-in by the
Company from CNN.
16) To exclude bareboat charter revenues received from CNN for 10 vessels under
the pre-existing bareboat charter agreements.
17) To exclude the Company's share of the net pool results as a result of the
termination of the pooling arrangement with CNN.
18) To reflect drydocking expenses associated with the 10 vessels previously
bareboat chartered-out by the Company to CNN. As operator, the Company will
assume responsibility for drydocking expenses.
<PAGE>
19) To reflect a decline in operating expenses due to a reduction in crew wages
and benefit costs as a result of savings relating to recrewing 13 of the
Company's vessels previously operated by CNN. The Company estimates savings
of approximately $13,000 per month per vessel ($3,500 per month each for a
master and chief engineer and $3,000 per month for two mates each per
vessel). The estimated savings are reduced by 25% to recognize that the
recrewing will take place over a period of time rather than immediately.
The pro forma adjustment reflects crew costs reductions of $9,750 per month
for vessels which, on an aggregated basis, operated 137 months in 1994 and
117 months in 1995. Such savings are based on crew wages paid to American
and crews of other nationalities for similar vessels operated by the
Company as compared with crew wages paid to French seamen for the above
mentioned vessels. To facilitate recrewing, the vessels were reflagged
during 1995.
20) To reflect management fees payable to FISH pursuant to the management
agreement with FISH.
21) To reflect increased depreciation expense associated with the five vessels
acquired from CNN.
22) To adjust income tax expense for the effects of adjustments with respect to
the CNN Transaction assuming an effective tax rate of 34%.
23) The effect of pro forma adjustments relating to the contract amendments
with Coastal and Phibro would not be material to total environmental
services revenue in the pro forma Statements of Operations. Although the
Company expects the contract amendments with Coastal and Phibro, together
with the addition of two major customers, to have a positive effect on
future operations, the Company has not attempted to pro forma these effects
in the above Statements of Operations.
24) To reflect the amortization of $4.6 million of goodwill based upon the
straight-line method over a 20- year period which is the estimated period
of benefit.
25) To reflect the reduction in interest expense due to the retirement of
$31,000,000 of indebtedness outstanding under the DnB Facility with a
portion of the net proceeds from the common stock sale.
26) To adjust income tax expense for the effect of the adjustment described in
note (25) assuming an effective tax rate of 34%.
</FN>
</TABLE>
<PAGE>
EXHIBIT INDEX
Exhibit No. Description
- ----------- -----------
2.1 Agreement and Plan of Merger, dated as of May 31, 1996, by and
among SEACOR Holdings, Inc., SEACOR Enterprises, Inc. and
McCall Enterprises, Inc.
2.2 Agreement and Plan of Merger, dated as of May 31, 1996, by and
among SEACOR Holdings, Inc., SEACOR Support Services, Inc. and
McCall Support Vessels, Inc.
2.3 Agreement and Plan of Merger, dated as of May 31, 1996, by and
among SEACOR Holdings, Inc., SEACOR N.F., Inc. and N.F. McCall
Crews, Inc.
2.4 Exchange Agreement relating to McCall Crewboats, L.L.C., dated
as of May 31, 1996, by and among SEACOR Holdings, Inc. and the
Persons listed on the signature pages thereto.
2.5 Share Exchange Agreement and Plan of Reorganization relating
to Cameron Boat Rentals, Inc., dated as of May 31, 1996, by
and among SEACOR Holdings, Inc., McCall Enterprises, Inc., and
the Persons listed on the signature pages thereto.
2.6 Share Exchange Agreement and Plan of Reorganization relating
to Philip A. McCall, Inc., dated as of May 31, 1996, by and
among SEACOR Holdings, Inc., McCall Enterprises, Inc. and the
Persons listed on the signature pages thereto.
2.7 Share Exchange Agreement and Plan of Reorganization relating
to Cameron Crews, Inc., dated as of May 31, 1996, by and among
SEACOR Holdings, Inc., McCall Enterprises, Inc., and the
Persons listed on the signature pages thereto.
10.1 Indemnification Agreement, dated as of May 31, 1996, among all
of the Stockholders of McCall Enterprises, Inc., Norman
McCall, as representative of such Stockholders, and SEACOR
Holdings, Inc.
10.2 Indemnification Agreement, dated as of May 31, 1996, among all
of the Stockholders of McCall Support Vessels, Inc., Norman
McCall, as representative of such Stockholders, and SEACOR
Holdings, Inc.
10.3 Indemnification Agreement, dated as of May 31, 1996, among all
of the Stockholders of N.F. McCall Crews, Inc., Norman McCall,
as representative of such Stockholders, and SEACOR Holdings,
Inc.
10.4 Indemnification Agreement, dated as of May 31, 1996, among all
of the Members of McCall Crewboats, L.L.C., Norman McCall, as
representative of such Members, and SEACOR Holdings, Inc.
10.5 Indemnification Agreement, dated as of May 31, 1996, among all
of the Stockholders of Cameron Boat Rentals, Inc., Norman
McCall, as representative of such Stockholders, and SEACOR
Holdings, Inc.
<PAGE>
10.6 Indemnification Agreement, dated as of May 31, 1996, among all
of the Stockholders of Philip A. McCall, Inc. and SEACOR
Holdings, Inc.
10.7 Indemnification Agreement, dated as of May 31, 1996, among all
of the Stockholders of Cameron Crews, Inc., Norman McCall, as
representative of such Stockholders, and SEACOR Holdings, Inc.
10.8 Investment and Registration Rights Agreement, dated as of May
31, 1996, among SEACOR Holdings, Inc. and the Persons listed
on the signature pages thereto.
EXHIBIT 2.1
AGREEMENT AND PLAN OF MERGER
by and among
SEACOR HOLDINGS, INC.,
SEACOR ENTERPRISES, INC.
and
McCALL ENTERPRISES, INC.
Dated as of May 31, 1996
<PAGE>
TABLE OF CONTENTS
Page
ARTICLE 1.
DEFINITIONS . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Section 1.1. Definitions . . . . . . . . . . . . . . . . . 1
ARTICLE 2.
THE CLOSING; THE MERGER; EFFECTS OF THE MERGER . . . . . . . . . 10
Section 2.1. Closing . . . . . . . . . . . . . . . . . . . 10
Section 2.2. The Merger . . . . . . . . . . . . . . . . . 11
Section 2.3 Effects of the Merger; Certificate and By-
laws; Directors and Officers . . . . . . . 11
ARTICLE 3.
MERGER CONSIDERATION; CONVERSION OF SHARES . . . . . . . . . . . 11
Section 3.1. Conversion of Shares . . . . . . . . . . . . 11
Section 3.2. Exchange of Stock Certificates; Record Date . 13
Section 3.3. No Further Rights in McCall Capital Stock . . 13
Section 3.4. Determination of Final Adjusted Net Assets. . 14
Section 3.5. Registration Rights Agreement; Restrictive
Endorsement . . . . . . . . . . . . . . . 15
ARTICLE 4.
REPRESENTATIONS AND WARRANTIES OF MCCALL . . . . . . . . . . . . 15
Section 4.1. Organization and Citizenship . . . . . . . . 15
Section 4.2. Affiliated Entities . . . . . . . . . . . . . 16
Section 4.3. Capitalization . . . . . . . . . . . . . . . 16
Section 4.4. Authority; Enforceable Agreement . . . . . . 17
Section 4.5. No Conflicts or Consents . . . . . . . . . . 17
Section 4.6. Corporate Documents . . . . . . . . . . . . . 18
Section 4.7. Financial Statements; Liabilities . . . . . . 18
Section 4.8. Accounts Receivable . . . . . . . . . . . . . 19
Section 4.9. Absence of Certain Changes or Events . . . . 19
Section 4.10. Contracts . . . . . . . . . . . . . . . . . . 21
Section 4.11. Properties and Leases other than Vessels . . 22
Section 4.12. Condition of McCall's Assets Other than
Vessels. . . . . . . . . . . . . . . . . . 23
Section 4.13. Vessels . . . . . . . . . . . . . . . . . . . 24
Section 4.14. Accounting Matters . . . . . . . . . . . . . 25
Section 4.15. Suppliers and Customers . . . . . . . . . . . 25
<PAGE>
Page
----
Section 4.16. Employee . . . . . . . . . . . . . . . . . . 25
Section 4.17. Employee Benefit Plans . . . . . . . . . . . 26
Section 4.18. Tax Matters . . . . . . . . . . . . . . . . . 29
Section 4.19. Litigation . . . . . . . . . . . . . . . . . 32
Section 4.20. Insurance . . . . . . . . . . . . . . . . . . 32
Section 4.21. Environmental Compliance . . . . . . . . . . 32
Section 4.22. Compliance With Law; Permits . . . . . . . . 33
Section 4.23. Interests in Clients, Suppliers, Etc. . . . . 34
Section 4.24. Transactions With Related Parties . . . . . . 34
Section 4.25. Broker's and Finder's Fee . . . . . . . . . . 35
Section 4.26. Disclosure . . . . . . . . . . . . . . . . . 35
Section 4.27. Intellectual Property . . . . . . . . . . . . 35
ARTICLE 5.
REPRESENTATIONS AND WARRANTIES OF SEACOR AND SUB . . . . . . . . 36
Section 5.1. Organization and Citizenship . . . . . . . . 36
Section 5.2. Capitalization . . . . . . . . . . . . . . . 36
Section 5.3. Authority; Enforceable Agreements . . . . . . 37
Section 5.4. No Conflicts or Consents . . . . . . . . . . 37
Section 5.5. Corporate Documents . . . . . . . . . . . . . 38
Section 5.6. SEC Documents; Financial Statements;
Liabilities . . . . . . . . . . . . . . . 38
Section 5.7. Absence of Certain Changes or Events . . . . 39
Section 5.8. Contracts . . . . . . . . . . . . . . . . . . 40
Section 5.9. Litigation . . . . . . . . . . . . . . . . . 40
Section 5.10. Legality of SEACOR Common Stock . . . . . . . 40
Section 5.11. Broker's and Finder's Fee . . . . . . . . . . 40
ARTICLE 6.
PRE-CLOSING COVENANTS . . . . . . . . . . . . . . . . . . . . . . 41
Section 6.1. Hart-Scott-Rodino; Cooperation and Best
Efforts . . . . . . . . . . . . . . . . . 41
Section 6.2. Conduct of Business By Both Parties Prior to
the Closing Date . . . . . . . . . . . . . 41
Section 6.3. Conduct of Business By McCall Prior to the
Closing Date . . . . . . . . . . . . . . . 42
Section 6.4. Press Releases . . . . . . . . . . . . . . . 44
Section 6.5. Cooperation . . . . . . . . . . . . . . . . . 44
Section 6.6. Access to Information and Confidentiality . . 44
Section 6.7. Consultation and Reporting . . . . . . . . . 45
Section 6.8. Update Schedules . . . . . . . . . . . . . . 46
Section 6.9. Notification . . . . . . . . . . . . . . . . 46
<PAGE>
Page
----
ARTICLE 7.
CLOSING CONDITION . . . . . . . . . . . . . . . . . . . . . . . . 46
Section 7.1. Condition Applicable to All Parties . . . . . 46
Section 7.2. Conditions to SEACOR's Obligations . . . . . 46
Section 7.3. Conditions to McCall's Obligations . . . . . 48
Section 7.4. Waiver of Conditions . . . . . . . . . . . . 50
ARTICLE 8.
POST-CLOSING COVENANTS . . . . . . . . . . . . . . . . . . . . . 50
Section 8.1. Indemnification of Directors and Officers of
McCall . . . . . . . . . . . . . . . . . . 50
Section 8.2. Publication of Post-Merger Results . . . . . 51
Section 8.3. Employee Benefits . . . . . . . . . . . . . . 51
ARTICLE 9.
TERMINATION . . . . . . . . . . . . . . . . . . . . . . . . . . . 51
Section 9.1. Termination . . . . . . . . . . . . . . . . . 51
Section 9.2. Effect of Termination . . . . . . . . . . . . 52
ARTICLE 10.
MISCELLANEOUS . . . . . . . . . . . . . . . . . . . . . . . . . . 53
Section 10.1. Notices . . . . . . . . . . . . . . . . . . . 53
Section 10.2. Governing Law . . . . . . . . . . . . . . . . 54
Section 10.3. Counterparts . . . . . . . . . . . . . . . . 54
Section 10.4. Interpretation . . . . . . . . . . . . . . . 54
Section 10.5. Entire Agreement; Severability . . . . . . . 54
Section 10.6. Amendment and Modification . . . . . . . . . 55
Section 10.7. Extension; Waiver . . . . . . . . . . . . . . 55
Section 10.8. Binding Effect; Benefits . . . . . . . . . . 55
Section 10.9. Assignability . . . . . . . . . . . . . . . . 55
Section 10.10. Expenses . . . . . . . . . . . . . . . . . . 55
Section 10.11. Gender and Certain Definitions . . . . . . . 55
<PAGE>
EXHIBITS AND SCHEDULES
EXHIBITS
Exhibit A . . . . . . . . . . . Vessels
Exhibit B . . . . . . . . . . . Certificate of Merger
Exhibit C . . . . . . . . . . . Form of Letter of Transmittal
Exhibit D . . . . . . . . . . . Investment and Registration Rights
Agreement
Exhibit E . . . . . . . . . . . Opinion of McCall's Counsel
Exhibit F . . . . . . . . . . . Indemnification Agreement
Exhibit G . . . . . . . . . . . Escrow Agreement
Exhibit H . . . . . . . . . . . Form of Letter of Employment with
Norman F. McCall
Exhibit I . . . . . . . . . . . Opinion of SEACOR's Counsel
SCHEDULES(1)
Schedule 3.5(a) . . . . . . . . McCall Stockholders
Schedule 4.2(a) . . . . . . . . McCall Group
Schedule 4.2(b) . . . . . . . . Rights to Acquire Securities
Schedule 4.5(a) . . . . . . . . Certain Conflicts
Schedule 4.5(b) . . . . . . . . Consents/Approval Required
Schedule 4.7 . . . . . . . . . Disclosed Liabilities
Schedule 4.8 . . . . . . . . . Accounts Receivable
Schedule 4.9 . . . . . . . . . Certain Changes
Schedule 4.10(a) . . . . . . . Certain Contracts
Schedule 4.10(b) . . . . . . . Material Contracts
Schedule 4.11(a) . . . . . . . Encumbrances on Property
Schedule 4.11(c) . . . . . . . Above Market Rate Leases
Schedule 4.11(d) . . . . . . . Real Property and Leases
Schedule 4.13(a) . . . . . . . Vessels and Liens on Vessels
Schedule 4.13(b) . . . . . . . Leased Vessels
Schedule 4.13(c) . . . . . . . Leases/Charters of Vessels between
Members of the McCall Group
Schedule 4.13(d) . . . . . . . Certain Defects with Vessels
Schedule 4.15 . . . . . . . . . Suppliers and Customers
Schedule 4.16(a) . . . . . . . Certain Employees
Schedule 4.17(a) . . . . . . . Employee Plans
Schedule 4.17(b) . . . . . . . Employee Benefit Arrangements
________________
(1) All the above Schedules relate to the McCall Group
unless otherwise indicated.
<PAGE>
Schedule 4.17(c) . . . . . . . Modifications to Employee Benefit
Plans and Arrangements
Schedule 4.17(j) . . . . . . . Litigation Re Employee Plan or
Benefit Arrangements
Schedule 4.17(k) . . . . . . . Certain Employees with Rights to
Certain Entitlements
Schedule 4.17(l) . . . . . . . Benefits to Non-employee
Stockholders and Directors
Schedule 4.18(d) . . . . . . . Material Tax Elections
Schedule 4.18(f) . . . . . . . Returns Filed in State and Foreign
Jurisdictions
Schedule 4.19 . . . . . . . . . Litigation
Schedule 4.20(a) . . . . . . . Insurance Policies
Schedule 4.20(b) . . . . . . . Protection or Indemnity Clubs
Schedule 4.21(a) . . . . . . . Noncompliance with Environmental
Laws
Schedule 4.21(b) . . . . . . . Environmental Administrative or
Judicial Proceedings
Schedule 4.21(c) . . . . . . . Above Ground and Underground Tanks
Schedule 4.21(d) . . . . . . . Hazardous Materials
Schedule 4.23 . . . . . . . . . Officers'/Directors' Relationships
with Competitors of the McCall
Group
Schedule 4.24(a) . . . . . . . Interested Officers'/Directors'
Transactions
Schedule 4.24(b) . . . . . . . Claims of Certain Officers and
Directors
Schedule 4.27 . . . . . . . . . Intellectual Property
Schedule 5.8 . . . . . . . . . Material Contracts of SEACOR
Schedule 5.9 . . . . . . . . . Litigation Involving SEACOR
Schedule 6.3(d) . . . . . . . . Disposed of/Sold Vessels
Schedule 6.3(e) . . . . . . . . Indebtedness
Schedule 6.3(f) . . . . . . . . New Capital Expenditures
NYFS11...:\93\73293\0011\1196\EDG6046N.240
<PAGE>
AGREEMENT AND PLAN OF MERGER
AGREEMENT AND PLAN OF MERGER dated as of May 31, 1996, by and
among SEACOR Holdings, Inc., a Delaware corporation ("SEACOR"), SEACOR
Enterprises, Inc., a Louisiana corporation and a direct, wholly-owned
subsidiary of SEACOR ("Sub"), and McCall Enterprises, Inc., a
Louisiana corporation ("McCall").
W I T N E S S E T H:
-------------------
WHEREAS, the respective Boards of Directors of SEACOR, Sub and
McCall have determined that it is desirable and in the best interests
of the parties to this Agreement and their respective stockholders to
provide for the merger of Sub into McCall (the "Merger"), with the
result that McCall shall become a wholly-owned subsidiary of SEACOR
pursuant to the terms and subject to conditions hereof;
WHEREAS, for Federal income tax purposes, it is intended that the
Merger shall qualify as a reorganization within the meaning of Section
368(a) of the Internal Revenue Code of 1986, as amended (the "Code"),
and the rules and regulations thereunder;
NOW, THEREFORE, in consideration of the representations,
warranties and covenants contained herein, the parties agree as
follows:
ARTICLE 1.
DEFINITIONS
Section 1.1. Definitions. As used in this Agreement, the
-----------
following terms when capitalized have the meanings indicated:
"Adjusted Net Assets" shall mean an amount equal to the
consolidated assets, other than Vessel Assets, of McCall and its
subsidiaries (including, but not limited to, cash and cash
equivalents, marketable securities, deposits, accounts receivable and
prepaid expenses) determined in accordance with GAAP (except as
provided in the provisos to this definition) reduced by the following:
(i) the book value of all personal property (including, without
limitation, vehicles, office equipment and furniture) and
improvements; (ii) appropriate reserves under GAAP; (iii) investments
in any of the Companies or SEAMAC LLC; and (iv) all liabilities
(including notes payable to current stockholders of McCall) as
determined in accordance with GAAP other than deferred taxes related
to Vessel Assets; provided,
--------
<PAGE>
however, that (a) for purposes of calculating Adjusted Net Assets,
-------
assets and liabilities with respect to the construction or commitment
for construction of five crew boats (Hull Nos. 411, 413, 414, 416 and
417) with Gulfcraft Shipyard shall not be taken into account, (b) for
the purpose of calculating Adjusted Net Assets, McCall shall be deemed
to have an interest in the assets and liabilities of each of its
subsidiaries that is not wholly-owned equal to the product of McCall's
percentage ownership of the common stock of such subsidiary and the
amount of such subsidiary's assets and liabilities, (c) Adjusted Net
Assets shall be increased by the expenses of any drydockings of McCall
Vessels incurred by McCall or its subsidiaries between the date hereof
and the Closing (but not the expenses of moving the vessels to the
dock) and (d) Adjusted Net Assets shall be calculated on the
assumption that any member of the McCall Group that currently accounts
on a cash basis converted to accounting on an accrual basis (and any
Tax liability currently payable as a result of such conversion shall
be taken into account) and, provided further, in the event that, prior
-------- -------
to the Closing, any of the McCall Vessels is sold or is subject to a
total loss or constructive total loss, the amount of Adjusted Net
Assets shall be (1) increased by the amount, if any, by which the
proceeds from such sale or the proceeds (including any amount
recoverable from insurance or other sources) from such loss (the
"Disposition Proceeds") exceed the value for such vessel set forth on
Exhibit A hereto, and (2) decreased by the amount, if any, by which
the value for such vessel set forth on Exhibit A hereto exceeds the
Disposition Proceeds.
"Affiliate" shall have the meaning ascribed to such term by Rule
12b-2 promulgated under the Exchange Act.
"Agreement" shall mean this Agreement and Plan of Merger,
including the Schedules and Exhibits hereto, all as amended or
otherwise modified from time to time.
"Arbitrator" shall have the meaning ascribed to such term in
Section 3.4(b).
"Average Market Price" shall mean $35.142, which represents the
average of the daily closing sale price per share of SEACOR Common
Stock on the NASDAQ Stock Market for the 60 consecutive calendar days
that ended on April 16, 1996, the second trading day prior to the date
of signing of a letter of intent with respect to the transactions
contemplated hereby.
"Benefit Arrangement" means any employment, severance or similar
contract, or any other contract, plan, policy or arrangement (whether
or not written) providing for compensation, bonus, profit-sharing,
stock option or other stock related rights or other forms of incentive
or deferred compensation, vacation benefits, insurance coverage
(including any self-insured arrangement), health or medical benefits,
disability benefits, severance benefits and post-employment or
retirement benefits (including compensation, pension, health, medical
or life insurance benefits), other than the Employee Plans, that (A)
is maintained, administered or contributed to by the employer or the
employer has any
<PAGE>
obligation or liability (contingent or otherwise) and (B) covers any
employee or former employee or director of the employer.
"Business Day" shall mean a day other than a Saturday, a Sunday
or a day on which national banks or the NASDAQ Stock Market is closed.
"Certificate of Merger" shall have the meaning ascribed to such
term in Section 2.1(b).
"Closing" shall have the meaning ascribed to such term in Section
2.1(a).
"Closing Balance Sheet" shall have the meaning ascribed to such
term in Section 3.4(a).
"Closing Date" shall have the meaning ascribed to such term in
Section 2.1(a).
"Code" shall have the meaning ascribed to such term in the
premises to this Agreement.
"Common Merger Consideration" shall have the meaning ascribed to
such term in Section 3.1(a).
"Companies" shall mean McCall, McCall's Boat Rentals, Inc., Gulf
Marine Transportation, Inc., Carroll McCall, Inc., McCall Marine
Services, Inc., Cameron Boat Rentals, Inc., Gladys McCall, Inc.,
Cameron Crews, Inc., Philip Alan McCall, Inc., N.F. McCall Crews,
Inc., McCall Crewboats, L.L.C. and McCall Support Vessels, Inc.
"Contract" means any contract, charter, agreement, lease,
indenture, note, bond, instrument, lien, conditional sales contract,
mortgage, license, franchise, insurance policy, commitment or other
binding understanding or arrangement, whether written or oral.
"DOJ" shall have the meaning ascribed to such term in Section
6.1(a).
"Effective Date" shall have the meaning ascribed to such term in
Section 2.1(b).
"Effective Time" shall have the meaning ascribed to such term in
Section 2.1(b).
"Employee Plan" means an employee benefit plan or arrangement as
defined in Section 3(3) of ERISA, that is maintained, administered or
contributed to by the employer or the employer has any obligation or
liability (contingent or otherwise) and covers any employee or former
employee of the employer.
<PAGE>
"Environmental Laws" means all federal, state, local and foreign
laws, common law duties, ordinances, codes, regulations and other
legally binding obligations relating to pollution, the protection of
the environment, human health and safety or natural resources,
including, without limitation, all such laws governing the operation
of business, each McCall Vessel, the generation, use, collection,
treatment, storage, transportation, recovery, removal, discharge or
disposal of Hazardous Substances or wastes and all such laws imposing
record-keeping, maintenance, testing, inspection, notification and
reporting requirements with respect to Hazardous Substances.
"Environmental Permits" shall have the meaning ascribed to such
term in Section 4.21(a).
"ERISA" means the Employee Retirement Income Security Act of
1974, as amended, and the applicable regulations promulgated
thereunder.
"Escrow Agreement" shall have the meaning ascribed to such term
in Section 7.2(j).
"Estimated Adjusted Net Assets" shall mean $6,015,703.
"Exchange Act" shall mean the Securities Exchange Act of 1934, as
amended.
"Final Adjusted Net Assets" shall have the meaning ascribed to
such term in Section 3.4(b).
"Fractional Payment" shall have the meaning ascribed to such term
in Section 3.1(d).
"FTC" shall have the meaning ascribed to such term in Section
6.1(a).
"GAAP" shall mean generally accepted accounting principles in the
United States of America as in effect from time to time set forth in
the opinions and pronouncements of the Accounting Principles Board and
the American Institute of Certified Public Accountants and the
statements and pronouncements of the Financial Accounting Standards
Board, or in such other statements by such other entity as may be in
general use by significant segments of the accounting profession,
which are applicable to the circumstances as of the date of
determination.
"Hazardous Substances" means any and all wastes, materials or
substances defined, regulated or classified as "hazardous substances,"
"hazardous wastes," "hazardous constituents" or words of similar
meaning in (i) the Comprehensive Environmental Response, Compensation
and Liability Act of 1980, 42 U.S.C. Sections 9601 et seq., as amended by
-- ---
the Superfund Amendments and Reauthorization Act of 1986, and any
amendments thereto and regulations thereunder; (ii) the Resource
Conservation and Recovery Act of 1976, 42 U.S.C. Sections 6901 et seq., as
-- ---
amended by the Hazardous and Solid Waste Amendments of 1984, and
<PAGE>
any amendments thereto and regulations thereunder; (iii) the Oil
Pollution Act of 1990, 33 U.S.C. Sections 2701 et seq., and any amendments
-- ---
thereto and regulations thereunder; or (iv) any other Environmental
Law.
"HSR Act" shall mean the Hart-Scott-Rodino Antitrust Improvements
Act of 1976, as amended.
"HSR Reports" shall mean the premerger notification and report
form to be filed under the HSR Act.
"Indemnification Agreement" shall have the meaning ascribed to
such term in Section 7.2(j).
"Indemnified Person" shall have the meaning ascribed to such term
in Section 8.1(a).
"Intellectual Property Right" means any trademark, service mark,
trade name, patent, trade secret, copyright, know-how or other type of
intellectual property right (including any registrations or
applications for registration of any of the foregoing).
"Investment and Registration Rights Agreement" shall have the
meaning ascribed to such term in Section 3.5(a).
"IRS" shall have the meaning ascribed to such term in Section
4.17(a).
"Knowledge of McCall" shall mean the actual knowledge of Norman
F. McCall, Joyce C. McCall, Joseph N. McCall, William Johnston, or
Stephanie Richard without any obligation to conduct any inquiry
outside the ordinary course of business.
"Knowledge of SEACOR" shall mean the actual knowledge of Charles
Fabrikant, Randall Blank or Milton R. Rose (all being executive
officers of SEACOR) without any obligation to conduct any inquiry
outside the ordinary course of business.
"LBCL" shall mean the Business Corporation Law of the State of
Louisiana, as amended.
"Letter of Employment" shall have the meaning ascribed to such
term in Section 7.2(k).
"Liens" shall mean pledges, liens, encumbrances, rights in rem,
defects, leases, licenses, equities, conditional sales contracts,
charges, claims, encumbrances, security interests, easements,
restrictions, chattel mortgages, mortgages or deeds of trust, of any
kind or nature whatsoever.
<PAGE>
"Material Adverse Effect" shall mean, with respect to any party,
a material adverse effect on the financial condition, results of
operations, business or prospects of such party.
"Material Contract" shall have the meaning ascribed to such term
in Section 5.8.
"McCall Audited Financial Statements" shall mean the audited
combined balance sheet and related combined statements of income,
stockholders' equity and cash flows, and the related notes thereto, of
the Companies as of and for the years ended December 31, 1994 and
1995.
"McCall Capital Stock" shall mean the McCall Common Stock and the
McCall Preferred Stock, collectively.
"McCall Common Stock" shall mean shares of common stock, $1,000
par value per share, of McCall.
"McCall Financial Statements" shall mean the McCall Audited
Financial Statements and the McCall Interim Financial Statements,
collectively.
"McCall Group" shall mean McCall, McCall's Boat Rentals, Inc.,
Gulf Marine Transportation, Inc., Phillip A. McCall, Inc., Carroll
McCall, Inc., McCall Marine Services, Inc., Cameron Boat Rentals, Inc.
and Cameron Crews, Inc.
"McCall Interim Financial Statements" shall mean the unaudited
combined balance sheet, and the related unaudited combined statements
of income and cash flows, of the Companies as of and for the three-
month period ended March 31, 1996.
"McCall Latest Balance Sheet" shall mean the combined balance
sheet of the Companies included in the McCall Interim Financial
Statements.
"McCall Preferred Stock" shall mean shares of preferred stock,
$1,000 par value per share, of McCall.
"McCall Representative" shall mean Norman F. McCall, who has been
appointed by the Board of Directors of McCall and by the unanimous
written consent of the McCall Stockholders as their representative for
purposes of Section 3.4 hereof or any successor as McCall
Representative appointed in accordance with the terms of the
Indemnification Agreement.
"McCall Stockholders" shall have the meaning ascribed to such
term in Section 3.5(a).
"McCall Vessels" shall have the meaning ascribed to such term in
Section 4.13.
<PAGE>
"Merger" shall have the meaning ascribed to such term in the
premises to this Agreement.
"Merger Consideration" shall have the meaning ascribed to such
term in Section 3.1(a).
"Multiemployer Plan" means a plan or arrangement as defined in
Section 4001(a)(3) and 3(37) of ERISA.
"Permitted Liens" shall mean any mechanic's, worker's,
materialmen's, maritime or other liens arising as a matter of law in
the ordinary course of business consistent with past practice.
"Person" shall mean an individual, firm, corporation, general or
limited partnership, limited liability company, limited liability
partnership, joint venture, trust, governmental authority or body,
association, unincorporated organization or other entity.
"Pre-Closing Periods" shall mean all tax periods ending at or
before the Effective Time and, with respect to any tax period that
includes but does not end at the Effective Time, the portion of such
period that ends at and includes the Effective Time.
"Preferred Merger Consideration" shall have the meaning ascribed
to such term in Section 3.1(a).
"Registration Statement" shall mean the registration statement on
Form S-3 to be filed by SEACOR with the SEC for the purpose, among
other things, of registering the SEACOR Common Stock which will be
issued to the holders of McCall Capital Stock following consummation
of the Merger.
"Returns" shall mean all returns, reports, estimates,
declarations, information return, statement or other similar documents
relating to Taxes, including any schedule or attachment thereto, and
including any amendment thereof.
"SEACOR Affiliated Group" shall mean SEACOR, Sub and the other
subsidiaries of SEACOR.
"SEACOR Audited Financial Statements" shall mean the audited
consolidated balance sheets, and the related consolidated statements
of earnings, stockholders' equity and cash flows, and the related
notes thereto, of SEACOR and its subsidiaries as of and for the years
ended December 31, 1994 and 1995.
"SEACOR Common Stock" shall mean shares of common stock, $.01 par
value per share, of SEACOR.
<PAGE>
"SEACOR Financial Statements" shall mean the SEACOR Audited
Financial Statements and the SEACOR Interim Financial Statements.
"SEACOR Interim Financial Statements" shall mean the unaudited
consolidated balance sheet, and the related consolidated unaudited
statements of earnings and cash flows, of SEACOR and its subsidiaries
as of and for the three month period ended March 31, 1996.
"SEACOR Latest Balance Sheet" shall mean the consolidated balance
sheet included in the SEACOR Interim Financial Statements.
"SEACOR SEC Documents" shall have the meaning ascribed to such
term in Section 5.6(a).
"SEC" shall mean the Securities and Exchange Commission of the
United States.
"Securities Act" shall mean the Securities Act of 1933, as
amended.
"Surviving Corporation" shall mean McCall following the Effective
Time.
"Taxes" means all taxes, charges, fees, imposts, levies or other
assessments, including, without limitation, all net income, gross
receipts, sales, use, ad valorem, value added, transfer, franchise,
profits, inventory, capital stock, license, withholding, payroll,
employment, social security, unemployment, excise, severance, stamp,
occupation, property taxes, customs duties, fees, assessments and
charges of any kind whatsoever, together with any interest and any
penalties, additions to tax or additional amounts imposed by any
taxing authority (domestic or foreign) and any interest or penalties
imposed with respect to the filing, obligation to file or failure to
file any Return, and shall include any transferee liability in respect
of Taxes.
"Termination Date" shall have the meaning ascribed to such term
in Section 9.1(c).
"Total Merger Consideration" shall have the meaning ascribed to
such term in Section 3.1(a).
"Undisclosed Liabilities" shall have the meaning ascribed to such
term in Section 4.7.
"Vessel Assets" shall mean (i) the 40 vessels listed on Exhibit A
hereto, all spare parts, stores and supplies, fuel and lubes (whether
onboard or ashore), and all investments by McCall in the Companies,
(ii) the proceeds of the sale of any such vessel sold by McCall
between the date hereof and the Closing Date and (iii) the proceeds
(including any amount recoverable from insurance or other sources)
from total loss, nontotal loss or constructive loss of any such
vessel between the date hereof and the Closing Date.
<PAGE>
ARTICLE 2.
THE CLOSING; THE MERGER; EFFECTS OF THE MERGER
Section 2.1. Closing. (a) The closing of the transactions
-------
contemplated herein (the "Closing") will take place, assuming
satisfaction or waiver of each of the conditions set forth in Article
7 hereof, at the offices of Stockwell, Sievert, Viccellio, Clements &
Shaddock at 1 Lakeside Plaza, 4th Floor, Lake Charles, Louisiana, at
10:00 A.M. (Louisiana Time) on a date to be mutually agreed upon
between the parties, which shall be no later than the third Business
Day after satisfaction of the latest to occur of the conditions set
forth in Article 7 (or waiver thereof by the party entitled to waive
the same), or if no date has been agreed to, on any date specified by
one party to the others upon five days' notice following satisfaction
(or waiver) of such conditions (the date of the Closing being referred
to herein as the "Closing Date").
(b) At the Closing, the parties shall (i) deliver the
documents, certificates and opinions required to be delivered by
Article 7 hereof, (ii) provide proof or indication of the satisfaction
or waiver of each of the conditions set forth in Article 7 hereof,
(iii) cause the appropriate officers of McCall to execute and deliver
the Certificate of Merger (the "Certificate of Merger") in
substantially the form attached hereto as Exhibit B and (iv)
consummate the Merger by causing to be filed the properly executed
Certificate of Merger with the Secretary of State of the State of
Louisiana in accordance with the provisions of the LBCL. The Merger
shall be effective upon the filing of the Certificate of Merger with
the Secretary of State of Louisiana (such date and time being
hereinafter referred to respectively as the "Effective Date" and the
"Effective Time").
Section 2.2. The Merger. Subject to the terms and conditions
----------
of this Agreement, Sub shall be merged with and into McCall at the
Effective Time. Following the Merger, Sub shall cease to exist and
McCall shall be the Surviving Corporation and shall succeed to and
assume all the rights and obligations of Sub in accordance with the
LBCL.
Section 2.3 Effects of the Merger; Certificate and By-laws;
-----------------------------------------------
Directors and Officers. (a) The Merger shall have the effects
----------------------
specified in Section 115 of the LBCL.
(b) The Certificate of Incorporation of McCall, as amended
and restated and attached to the Certificate of Merger, shall be the
Certificate of Incorporation of the Surviving Corporation thereafter
unless and until amended in accordance with its terms and as provided
by law.
(c) The By-laws of Sub as in effect at the Effective Time
shall be the By-laws of the Surviving Corporation thereafter unless
and until amended in accordance with its terms, the terms of the
Certificate of Incorporation of the Surviving Corporation and as
provided by law.
<PAGE>
(d) The directors and officers of Sub at the Effective Time
shall be the directors and officers of the Surviving Corporation
thereafter, each to hold a directorship or office in accordance with
the Certificate of Incorporation and By-laws of the Surviving
Corporation until their respective successors are duly elected and
qualified.
ARTICLE 3.
MERGER CONSIDERATION; CONVERSION OF SHARES
Section 3.1. Conversion of Shares. (a) At the Effective Time,
--------------------
by virtue of the Merger and without any further action on the part of
SEACOR, Sub, McCall, the Surviving Corporation or any of the
respective stockholders thereof: (i) each share of common stock of
Sub issued and outstanding at the Effective Time shall be converted
into one share of the common stock, no par value per share, of the
Surviving Corporation; (ii) each issued share of McCall Capital Stock
that is held in treasury by McCall or held by any subsidiary of McCall
shall be cancelled and no capital stock of SEACOR or other
consideration shall be delivered in exchange therefor; (iii) each
share of McCall Preferred Stock issued and outstanding at the
Effective Time shall be converted into the right to receive, and shall
be exchanged for, 28.456 shares of SEACOR Common Stock (the "Preferred
Merger Consideration") and (iv) each share of McCall Common Stock
issued and outstanding at the Effective Time shall be converted into
the right to receive, and shall be exchanged for, such number of fully
paid and nonassessable shares of SEACOR Common Stock as shall be equal
to the quotient obtained by dividing (A) the Total Merger
Consideration (as hereinafter defined) minus the product of the
Preferred Merger Consideration and the number of shares of McCall
Preferred Stock outstanding at the Effective Time by (B) 630, which is
--
represented by McCall to be the number of shares of McCall Common
Stock outstanding on the date hereof (the "Common Merger
Consideration" and, together with the Preferred Merger Consideration,
the "Merger Consideration"). For purposes hereof, the "Total Merger
Consideration" shall mean a number of shares of SEACOR Common Stock
equal to the quotient obtained by dividing (1) the sum of $37,940,087
plus the amount, if any, by which the Final Adjusted Net Assets
exceeds the Estimated Adjusted Net Assets or less the amount, if any,
by which the Estimated Adjusted Net Assets exceeds the Final Adjusted
Net Assets, by (2) the Average Market Price.
--
(b) Upon conversion of the shares of McCall Preferred Stock
into the right to receive the Preferred Merger Consideration in the
manner described in paragraph 3.1(a)(iii), each record holder of
issued and outstanding McCall Preferred Stock immediately prior to the
Effective Time shall have the right to receive a certificate
representing such whole number of shares of SEACOR Common Stock equal
to the product of (A) the Preferred Merger Consideration and (B) the
number of issued and outstanding shares of McCall Preferred Stock of
which such Person is the record holder immediately prior to the
Effective Time.
<PAGE>
(c) Upon conversion of the shares of McCall Common Stock
into the right to receive the Common Merger Consideration in the
manner described in paragraph 3.1(a)(iv), each record holder of issued
and outstanding McCall Common Stock immediately prior to the Effective
Time shall have the right to receive a certificate representing such
whole number of shares of SEACOR Common Stock equal to the product of
(A) the Common Merger Consideration and (B) the number of issued and
outstanding shares of McCall Common Stock of which such Person is the
record holder immediately prior to the Effective Time.
(d) In lieu of the issuance of fractional shares of SEACOR
Common Stock, each holder of record of issued and outstanding shares
of McCall Capital Stock as of the Effective Time shall be entitled to
receive a cash payment (without interest) (each a "Fractional Payment"
and, collectively, the "Fractional Payments") equal to the fair market
value of a fraction of a share of SEACOR Common Stock to which such
holder would be entitled to but for this provision. For purposes of
calculating such cash payment, the fair market value of a fraction of
a share of SEACOR Common Stock shall be such fraction multiplied by
the Average Market Price.
Section 3.2. Exchange of Stock Certificates; Record Date. (a)
-------------------------------------------
On or after the Effective Date, each holder of record of a certificate
or certificates that immediately prior to the Effective Time
represented issued and outstanding shares of McCall Capital Stock
whose shares were converted into the Merger Consideration and, where
applicable, a right to Fractional Payments pursuant to Section 3.1
shall surrender such certificates for cancellation to SEACOR, together
with a letter of transmittal in the form of Exhibit C hereto, duly
executed. Such letter of transmittal shall require each former record
holder of a certificate or certificates that represented McCall
Capital Stock to specify whether such person is a citizen of the
United States, within the meaning of Section 2 of the Shipping Act,
1916, as amended, and as required by the Merchant Marine Act of 1936,
as amended, and the Merchant Marine Act of 1920, as amended, and the
regulations thereunder. In exchange therefor, SEACOR shall issue
pursuant to Section 3.2(b) to each such holder who has appropriately
confirmed that he is a United States citizen a "United States Citizen"
certificate, and to each other holder, a "Non-Citizen" certificate,
representing in each case the number of whole shares of SEACOR Common
Stock that such holder has the right to receive pursuant to the
provisions of Section 3.1(b) and 3.1(c), and pay such holder any cash
payment in lieu of any fractional share in accordance with Section
3.1(d), and the certificates representing shares of McCall Common
Stock so surrendered shall forthwith be cancelled.
(b) As soon as practicable after the determination of Final
Adjusted Net Assets, SEACOR shall deliver the Merger Consideration and
the Fractional Payments required under this Agreement to such Persons
who were record owners of the McCall Capital Stock as of the close of
business on the Closing Date.
<PAGE>
Section 3.3. No Further Rights in McCall Capital Stock. As of
-----------------------------------------
the Effective Time, all shares of McCall Capital Stock shall no longer
be outstanding and shall automatically be cancelled and shall cease to
exist, and each holder of a certificate representing shares of McCall
Capital Stock as of the Effective Time shall cease to have any rights
with respect thereto, except the right to receive the Merger
Consideration and the Fractional Payments upon surrender of such
certificate as provided in Section 3.2.
Section 3.4. Determination of Final Adjusted Net Assets. (a)
------------------------------------------
Within 60 days after the Closing Date, SEACOR shall prepare in
accordance with GAAP and deliver to the McCall Representative, a
consolidated closing date balance sheet for McCall and its
subsidiaries as of the Closing Date (the "Closing Balance Sheet"),
which shall be accompanied by a computation of the Adjusted Net Assets
based thereon.
(b) The McCall Representative shall have a period of 15
days to review the Closing Balance Sheet and the accompanying calcu-
lation of the Adjusted Net Assets following delivery thereof by
SEACOR. During such period, SEACOR shall afford the McCall
Representative access to any of its books, records and work papers
necessary to enable the McCall Representative to review the Closing
Balance Sheet and the accompanying calculation of the Adjusted Net
Assets. The McCall Representative may dispute any amounts reflected
in the Adjusted Net Assets by giving notice in writing to SEACOR
specifying each of the disputed items and setting forth in reasonable
detail the basis for such dispute. Failure by the McCall
Representative to dispute the amounts reflected in the Adjusted Net
Assets within 15 days of delivery of the Closing Balance Sheet by
SEACOR shall be deemed an acceptance thereof by the McCall
Representative. If, within 30 days after delivery by the McCall
Representative to SEACOR of any notice of dispute in accordance with
this Section 3.4(b), the McCall Representative and SEACOR are unable
to resolve all of such disputed items, then any remaining items in
dispute shall be submitted to an independent nationally recognized
accounting firm selected in writing by SEACOR and the McCall
Representative or, if SEACOR and the McCall Representative fail or
refuse to select such a firm within ten Business Days after request
therefor by SEACOR or the McCall Representative, such an independent
nationally recognized accounting firm shall be selected in accordance
with the rules of the American Arbitration Association (the "Arbi-
trator"). The Arbitrator shall determine the remaining disputed items
and report to SEACOR and the McCall Representative with respect to
such items. The Arbitrator's decision shall be final, conclusive and
binding on all parties. The fees and disbursements of the Arbitrator
shall be borne equally by the McCall Stockholders and SEACOR. The
Adjusted Net Assets if undisputed or deemed undisputed or as
determined by the mutual agreement of SEACOR and the McCall
Representative or by the Arbitrator in accordance with the procedure
outlined above shall be the "Final Adjusted Net Assets."
Section 3.5. Registration Rights Agreement; Restrictive
Endorsement. (a) The issuance of the SEACOR Common Stock to the
McCall Stockholders (as defined below) pursuant to this Agreement will
not be registered under the Securities Act, or any state
<PAGE>
securities laws, in reliance upon certain exemptions from registration
contained therein and, therefore, will be subject to restrictions on
transfer. Pursuant to the terms and conditions of the Investment and
Registration Rights Agreement, in substantially the form attached
hereto as Exhibit D (the "Investment and Registration Rights
Agreement"), the McCall Stockholders shall have certain rights to
require the registration of the resale by the McCall Stockholders of
their SEACOR Common Stock. The "McCall Stockholders" are the record
and beneficial owners of the numbers of shares of capital stock of
McCall as are set forth opposite their respective names on Schedule
3.5(a) hereto.
(b) Each certificate representing the shares of SEACOR
Common Stock to be issued to the McCall Stockholders pursuant to this
Agreement shall be stamped with a legend in substantially the
following form:
"The Shares represented by this certificate have not been
registered under the Securities Act of 1933, as amended, or any
state securities law, and may not be transferred, sold or
otherwise disposed of in the absence of such registration or an
exemption therefrom. Such Shares may be transferred only in
compliance with the conditions specified in the Investment and
Registration Rights Agreement, dated as of May 31, 1995, between
the Issuer and the other entities and individuals party thereto,
a complete and correct copy of which is available for inspection
at the principal office of the Issuer and will be furnished to
the Holder hereof upon written request and without charge."
ARTICLE 4.
REPRESENTATIONS AND WARRANTIES OF MCCALL
McCall represents and warrants to SEACOR and Sub as follows:
Section 4.1. Organization and Citizenship. (a) Each member of
----------------------------
the McCall Group is a corporation duly organized, validly existing and
in good standing under the laws of the state of its incorporation and
has all corporate power and authority to carry on its business as now
being conducted and to own, lease and operate its properties. Each
member of the McCall Group is duly qualified to do business and is in
good standing in each state and foreign jurisdiction in which the
character or location of the properties owned or leased by it or the
nature of the business conducted by it makes such qualification
necessary, except where the failure to be so qualified or in good
standing would not have a Material Adverse Effect on the McCall Group.
(b) Each member of the McCall Group and its respective
stockholders are and at all times have been citizens of the United
States within the meaning of Section 2 of the Shipping Act, 1916, as
amended, for the purposes of owning and operating vessels in the U.S.
coastwise trade. None of the McCall Stockholders is a "foreign
person" within the meaning of Section 1445 of the Code.
<PAGE>
Section 4.2. Affiliated Entities. (a) Schedule 4.2(a) lists
-------------------
each member of the McCall Group. All shares of the outstanding
capital stock or equity interests in each member of the McCall Group
have been duly authorized and validly issued and are fully paid and
nonassessable and are not subject to preemptive rights and, except as
set forth in Schedule 4.2(a), are owned by McCall, by another member
of the McCall Group or by McCall and another member of the McCall
Group, free and clear of all Liens.
(b) Except as listed on Schedule 4.2(b), McCall does not,
directly or indirectly, own of record or beneficially, or have the
right or obligation to acquire, any outstanding securities or other
interest in any Person.
Section 4.3. Capitalization. (a) The authorized capital stock
--------------
of McCall consists exclusively of 700 shares of common stock, $1,000
par value per share, of which 630 shares were issued and outstanding
and no shares were held in its treasury as of the date hereof, and
3,000 shares of preferred stock, $1,000 par value per share, of which
2,522 shares were outstanding and no shares were held in treasury as
of the date hereof. All issued and outstanding shares of capital
stock of McCall are validly issued, fully paid, non-assessable and
free of preemptive or similar rights. The McCall Stockholders are the
record and beneficial owners of such number of shares of capital stock
of McCall set forth opposite their respective names on Schedule 3.5(a)
which shares represent all of the issued and outstanding shares of
capital stock of McCall. There is no existing subscription, option,
warrant, call, right, commitment or other agreement to which McCall is
a party requiring, and there are no derivative securities of McCall
outstanding which upon conversion, exercise or exchange would require,
directly or indirectly, the issuance of any additional shares of
McCall capital stock or other securities convertible, exchangeable or
exercisable into or for shares of McCall capital stock or any other
equity security of McCall, and there are no outstanding contractual
obligations of McCall to repurchase, redeem or otherwise acquire any
outstanding share of McCall capital stock.
Section 4.4. Authority; Enforceable Agreement. (a) McCall has
--------------------------------
the requisite corporate power and authority to enter into this
Agreement and to consummate the transactions contemplated hereby. The
execution and delivery of this Agreement by McCall and the
consummation by McCall of the transactions contemplated hereby have
been duly authorized by all necessary corporate action on the part of
McCall, including the approval of the Merger and this Agreement by its
Board of Directors and the McCall Stockholders.
(b) This Agreement has been duly executed and delivered by
McCall and (assuming due execution and delivery by the other parties
hereto) constitutes a valid and binding obligation of McCall,
enforceable against McCall in accordance with its terms, except as
such enforceability may be limited by bankruptcy, insolvency,
reorganization or similar laws affecting creditors' rights generally.
The other agreements entered, or to be entered, into by McCall in
connection with this Agreement have been, or will be, duly executed
and delivered by McCall and (assuming due execution and delivery by
the other
<PAGE>
parties thereto) constitute, or will constitute, valid and binding
obligations of McCall, enforceable against McCall in accordance with
their terms, except as such enforceability may be limited by
bankruptcy, insolvency, reorganization or similar laws affecting
creditors' rights generally.
Section 4.5. No Conflicts or Consents. (a) Except as set
------------------------
forth on Schedule 4.5(a), neither the execution, delivery nor
performance of this Agreement by McCall nor the consummation of the
transactions contemplated hereby will (i) violate, conflict with, or
result in a breach of any provision of, constitute a default (or an
event that, with notice or lapse of time or both, would constitute a
default) under, result in the termination of, or accelerate the
performance required by, or result in the creation of any adverse
claim against any of the properties or assets of any member of the
McCall Group under (A) the certificate of incorporation, by-laws or
any other organizational documents of any member of the McCall Group,
or (B) any note, bond, mortgage, indenture, deed of trust, lease,
license, agreement or other instrument or obligation to which any
member of the McCall Group is a party, or by which any member of the
McCall Group or any of its assets are bound, or (ii) subject to
obtaining clearance under the HSR Act, violate any order, writ,
injunction, decree, judgment, statute, rule or regulation of any
governmental body to which any member of the McCall Group is subject
or by which any member of the McCall Group or any of its assets are
bound.
(b) Except as set forth on Schedule 4.5(b), no consent,
approval, order, permit or authorization of, or registration,
declaration or filing with, any Person or of any government or any
agency or political subdivision thereof is required for the execution,
delivery and performance by McCall of this Agreement and the covenants
and transactions contemplated hereby or for the execution, delivery
and performance by McCall of any other agreements entered, or to be
entered, into by McCall in connection with this Agreement, except for
(i) the filing of the HSR Report by McCall under the HSR Act and the
early termination or expiration of all applicable waiting periods
thereunder, and (ii) the filing of the Certificate of Merger as
provided in Section 2.1(b) hereof.
Section 4.6. Corporate Documents. McCall has delivered to
-------------------
SEACOR true and complete copies of its certificate of incorporation
and by-laws, as amended or restated through the date of this
Agreement, and the organizational documents governing each member of
the McCall Group listed on Schedule 4.2(a). The minute books of each
member of the McCall Group contain complete and accurate records of
all corporate actions of the equity owners of the various entities and
of the boards of directors or other governing bodies, including
committees of such boards or governing bodies. The stock transfer
records of McCall contain complete and accurate records of all
issuances and redemptions of capital stock by McCall.
Section 4.7. Financial Statements; Liabilities. The McCall
---------------------------------
Financial Statements have been prepared in accordance with GAAP
applied on a basis consistent with prior
<PAGE>
periods and present fairly the financial position of the Companies as
at the dates of the balance sheet included therein and the results of
operations and cash flows for the periods then ended, except, in the
case of the McCall Interim Financial Statements, as permitted by Rule
10-01 of Regulation S-X of the SEC. The McCall Interim Financial
Statements reflect all adjustments (consisting only of normal,
recurring adjustments) that are necessary for a fair statement of the
results for the interim periods presented therein. Except as set
forth on Schedule 4.7, no member of the McCall Group has, nor are any
of their respective assets subject to, any liability, commitment, debt
or obligation (of any kind whatsoever whether absolute or contingent,
accrued, fixed, known, unknown, matured or unmatured) ("Undisclosed
Liabilities"), except (i) as and to the extent reflected on the McCall
Latest Balance Sheet, (ii) as may have been incurred or may have
arisen since the date of the McCall Latest Balance Sheet in the
ordinary course of business and that are not material individually or
in the aggregate or (iii) as permitted by this Agreement.
Section 4.8. Accounts Receivable. All of the accounts
-------------------
receivable reflected on the McCall Latest Balance Sheet or created
thereafter have arisen only from bona fide transactions in the
ordinary course of business, represent valid obligations owing to
McCall or another member of the McCall Group and have been accrued and
recorded in accordance with GAAP. Except as set forth on Schedule
4.8, such accounts receivable either have been collected in full or
will be collectible in full when due, without any counterclaims, set-
offs or other defenses and without provision for any allowance for
uncollectible accounts other than such allowance as appears on the
McCall Latest Balance Sheet.
Section 4.9. Absence of Certain Changes or Events. Except as
------------------------------------
set forth on Schedule 4.9 or as contemplated by this Agreement, since
the date of the McCall Latest Balance Sheet, each member of the McCall
Group has conducted its business only in the ordinary course, and has
not:
(a) amended its certificate of incorporation, by-laws or
similar organizational documents;
(b) incurred any liability or obligation of any nature
(whether absolute or contingent, accrued, fixed, known, unknown,
matured or unmatured), except in the ordinary course of business;
(c) suffered or permitted any of its assets to be or remain
subject to any lien other than those disclosed on Schedule 4.11(a) or
4.13(a) and that collateralize indebtedness reflected on the McCall
Latest Balance Sheet and Liens for Taxes accrued but not yet payable
and Permitted Liens;
(d) merged or consolidated with another Person or acquired
or agreed to acquire any Person or sold, leased, transferred or
otherwise disposed of any assets except for fair value in the ordinary
course of business; provided that no McCall Vessels shall have
<PAGE>
been disposed of without the consent of SEACOR (which consent shall
not be unreasonably withheld);
(e) made any capital expenditure or commitment therefor,
except in the ordinary course of business, provided that any
acquisitions of vessels (except those under construction and referred
to in the definition of Adjusted Net Assets), or acquisitions of, or
improvements to, real property, shall not be considered to be in the
ordinary course of business;
(f) declared or paid any dividend or made any distribution
with respect to any of its equity interests, or redeemed, purchased or
otherwise acquired any of its equity interests, or issued, sold or
granted any equity interests or any option, warrant or other right to
purchase or acquire any such interest other than payments within the
McCall Group by entities other than McCall as part of its cash
management program that may be characterized as dividends or
distributions;
(g) adopted any employee benefit plan or made any change in
any existing employee benefit plans or made any bonus or profit
sharing distribution or payment of any kind;
(h) increased indebtedness for borrowed money, or made any
loan to any Person, other than through the issuance of standby or
performance letters of credit issued in the ordinary course of
business;
(i) made any change affecting any banking, safe deposit or
power of attorney arrangements;
(j) written off as uncollectible any notes or accounts
receivable, except for notes or accounts receivable in the ordinary
course of business charged to applicable allowances reflected in the
McCall Latest Balance Sheet, and none of which individually or in the
aggregate is material to the McCall Group;
(k) entered into or amended any employment, severance or
similar agreement or arrangement with any director or employee, or
granted any increase in the rate of wages, salaries, bonuses, employee
advances or other compensation or benefits of any executive officer or
other employee, other than any such increase that is both in the
ordinary course of business consistent with past practice and in an
amount such that, after giving effect thereto, aggregate employee
compensation expense (considered on an annualized basis) does not
exceed 105% of the aggregate employee compensation expense for
McCall's fiscal year ended December 31, 1995.
(l) cancelled, waived, released or otherwise compromised
any debt, claim or right, except as permitted under clause (j);
<PAGE>
(m) made any change in any method of accounting principle
or practice;
(n) suffered the termination, suspension or revocation of
any license or permit necessary for the operation of its business or
any of the McCall Vessels;
(o) entered into any transaction other than on an arm's-
length basis;
(p) suffered any damage, destruction or loss (whether or
not covered by insurance) which has had or could reasonably be
expected to have a Material Adverse Effect on the McCall Group; or
(q) agreed, whether or not in writing, to do any of the
foregoing.
Section 4.10. Contracts. (a) Except as set forth on Schedule
---------
4.10(a), no member of the McCall Group is a party to: (i) any
collective bargaining agreement; (ii) any Contract with any employee;
(iii) any Contract, containing any covenant limiting its freedom to
engage in any line of business or to compete with any Person; (iv) any
Contract containing an obligation to guarantee or indemnify any other
Person; (v) any joint venture, partnership or similar Contract
involving a sharing of profits or expenses; (vi) any Contract under
which any member of the McCall Group is the licensee or licensor of
patents, copyrights, trademarks, applications for any of the foregoing
or any other intellectual property rights of any nature; (vii) any
Contract between any member of the McCall Group and any of their
respective Affiliates (other than other members of the McCall Group);
(viii) any Contract under which any member of the McCall Group has
borrowed any money or issued any note, bond or other evidence of
indebtedness for borrowed money or guaranteed indebtedness for money
borrowed by others; (ix) any hedge, swap, exchange, futures or similar
Contracts; or (x) any Contract that has had or may have a Material
Adverse Effect on the McCall Group.
(b) Schedule 4.10(b) contains a list and brief description
(including the names of the parties and the date and nature of the
agreement) of each material Contract to which any member of the McCall
Group is a party. There is no existing breach by any member of the
McCall Group of any of its material Contracts and there has not
occurred any event that with the lapse of time or the giving of notice
or both would constitute such a breach. There is not pending nor, to
the Knowledge of McCall, threatened, any claim that any member of the
McCall Group, has breached any of the terms or conditions of any of
its material Contracts and, to the Knowledge of McCall, no other
parties to such Contracts have breached any of their terms or
conditions. SEACOR has been provided with a complete and accurate
copy of each Contract listed on Schedule 4.10(b).
Section 4.11. Properties and Leases other than Vessels. (a)
----------------------------------------
With respect to assets other than vessels and except for assets
disposed of for adequate consideration in the ordinary course of
business and which are not material to the operation of its business,
a member of the McCall Group has good and valid title to all real
property and all other properties and
<PAGE>
assets accounted for as belonging to a member of the McCall Group
reflected in the McCall Latest Balance Sheet free and clear of all
Liens, except for (i) Liens that secure indebtedness that is properly
reflected in the McCall Latest Balance Sheet; (ii) Liens for Taxes
accrued but not yet payable; (iii) Permitted Liens, provided that the
obligations collateralized by such Permitted Liens are not delinquent
or are being contested in good faith; (iv) such imperfections of title
and encumbrances, if any, as do not in the aggregate materially
detract from the value or materially interfere with the present use of
any such properties or assets or the potential sale of any such
properties and assets and (v) capital leases and leases of such
properties, if any, to third parties for fair and adequate
consideration. Schedule 4.11(a) contains a list of (i) all Liens
(other than Permitted Liens and Liens for Taxes accrued but not yet
payable) on property other than vessels collateralizing indebtedness
on the McCall Latest Balance Sheet, (ii) any guaranty or other credit
support arrangement pursuant to which any member of the McCall Group
has guaranteed an obligation of any other member of the McCall Group
where assets other than vessels are the collateral and (iii) certain
items of personal property not owned by any member of the McCall
Group. A member of the McCall Group owns, or has valid leasehold
interests in, all properties and assets, other than vessels, used in
the conduct of its business.
(b) With respect to each lease of real property and
material amount of personal property (other than vessels) to which a
member of the McCall Group is a party, (i) such member of the McCall
Group has a valid leasehold interest in such real property or personal
property; (ii) such lease is in full force and effect in accordance
with its terms; (iii) all rents and other monetary amounts that have
become due and payable thereunder have been paid in full; (iv) no
waiver, indulgence or postponement of the obligations thereunder has
been granted by the other party thereto; (v) there exists no material
default (or an event that, with notice or lapse of time or both would
constitute a material default) under such lease; (vi) such member of
the McCall Group has not violated any of the terms or conditions under
any such lease; (vii) to the Knowledge of McCall, there has been no
(A) condition or covenant to be observed or performed by any other
party under any such lease that has not been fully observed and
performed and (B) in the case of each prime lease concerning demised
premises subleased to any member of the McCall Group, condition or
covenant to be observed or performed by each party thereto that has
not been fully observed and performed and there does not exist any
event of default or event, occurrence, condition or act that, with the
giving of notice, the lapse of time or the happening of any further
event or condition, would become a default under any such prime lease;
and (viii) the transactions described in this Agreement will not
constitute a default under or cause for termination or modification of
such lease.
(c) Except as disclosed on Schedule 4.11(c), the rent
charged to any member of the McCall Group under any lease (other than
with respect to vessels) between any member of the McCall Group and
any of its Affiliates (other than another member of the McCall Group)
is at or below the market rate and any such lease contains such other
terms
<PAGE>
and conditions that are no less favorable to McCall than would be
obtainable in an arms-length transaction with an independent third
party lessor.
(d) Schedule 4.11(d) contains a list of all real property
owned by members of the McCall Group and a list of all leases, other
than with respect to vessels, to which the members of the McCall Group
are parties, which list includes a reasonable description of the
location and approximate square footage of each property, whether
owned or leased, and the term of each such lease, including all
renewal options. Complete and correct copies of each lease has been
delivered to SEACOR.
Section 4.12. Condition of McCall's Assets Other than Vessels.
-----------------------------------------------
All of the tangible assets of the McCall Group (other than vessels)
are currently in good and usable condition, ordinary wear and tear
excepted, and are being used in the business of the McCall Group.
There are no defects in such assets or other conditions that in the
aggregate have or would be reasonably likely to have, a Material
Adverse Effect on the McCall Group. Such assets and the other
properties being leased by a member of the McCall Group pursuant to
the leases described on Schedule 4.11(d), together with the vessels
listed on Schedule 4.13(a), constitute all of the operating assets
being utilized by the McCall Group in the conduct of its business and
such assets are sufficient in quantity and otherwise adequate for the
operations of the McCall Group as currently conducted.
Section 4.13. Vessels. (a) Schedule 4.13(a) hereto sets forth
-------
a list of all vessels owned, leased, chartered or managed by any
member of the McCall Group on the date hereof and the name of the
nation under which each such vessel is documented and flagged, and
indicates any such vessels that are laid up or being held for sale on
the date hereof (such vessel, including related spare parts, stores
and supplies (other than any such vessels that are managed on the date
hereof), being referred to herein as "McCall Vessels"). With respect
to the owned McCall Vessels, each member of the McCall Group is the
sole owner (except as set forth on Schedule 4.13(a)) of each McCall
Vessel owned by it and has good title to each such vessel free and
clear of all Liens, except for (i) Liens that collateralize
indebtedness that is properly reflected in the McCall Latest Balance
Sheet ; (ii) Liens for Taxes accrued but not yet payable; (iii)
Permitted Liens, provided that the obligations collateralized by such
Permitted Liens are not delinquent or are being contested in good
faith and, except with respect to the matters disclosed on Schedule
4.19, in no event shall such contested obligations, individually or in
the aggregate, exceed $50,000 in the aggregate. Schedule 4.13(a)
contains a list of all Liens (other than Permitted Liens which
collateralize obligations that are not delinquent or that are being
contested in good faith and, except with respect to the matters
disclosed on Schedule 4.19, do not exceed $50,000 in the aggregate) on
vessels collateralizing indebtedness on the McCall Latest Balance
Sheet and any guaranty or other credit support arrangement pursuant to
which any member of the McCall Group has guaranteed an obligation of
any other member of the McCall Group where vessels are the collateral.
<PAGE>
(b) With respect to each McCall Vessel that is operated by
a member of the McCall Group under lease or charter and except as
disclosed on Schedule 4.13(b), (i) such member of the McCall Group has
a valid right to charter or a valid leasehold interest in such vessel;
(ii) such charter agreement or lease is in full force and effect in
accordance with its terms; (iii) all rents, charter payments and other
monetary amounts that have become due and payable thereunder have been
paid in full; (iv) no waiver, indulgence or postponement of the
obligations thereunder has been granted by the other party thereto;
(v) there exists no material default (or an event that, with notice or
lapse of time or both would constitute a material default) under such
charter agreement or lease; (vi) such member of the McCall Group has
not violated any of the terms or conditions under any such charter
agreement or lease and, to the Knowledge of McCall, there is no
condition or covenant to be observed or performed by any other party
under such charter agreement or lease that has not been fully observed
or performed; (vii) the transactions described in this Agreement will
not constitute a default under or cause for termination or
modification of such charter agreement or lease and (viii) to the
Knowledge of McCall, there is no unrepaired damage to any equipment
that could affect certification or class or be budgeted for repair in
the next twelve months.
(c) Schedule 4.13(c) contains a list of all leases or
charters providing for the use by a member of the McCall Group of a
McCall Vessel, which list contains a description of the terms of such
lease or charter. Complete and correct copies of each lease or
charter have been delivered to SEACOR.
(d) With respect to each McCall Vessel and except as
indicated on Schedule 4.13(d), (i) such McCall Vessel is lawfully and
duly documented under the flag of the nation listed on Schedule
4.13(a) for such McCall Vessel, (ii) such McCall Vessel is afloat and
in satisfactory operating condition for charter, (iii) such McCall
Vessel holds in full force and effect all certificates, licenses,
permits and rights required for operation in the manner vessels of its
kind are being operated in the geographical area in which such McCall
Vessel is presently being operated, (iv) to the Knowledge of McCall,
no event has occurred and no condition exists that would materially or
adversely effect the condition of such McCall Vessel and (v) with
respect to any McCall Vessel which is classed, such vessel is in
class, free of any recommendations of which any member of the McCall
Group has been informed.
Section 4.14. Accounting Matters. To the Knowledge of McCall,
------------------
no member of the McCall Group nor any of its Affiliates has taken or
agreed to take any action that (without giving effect to any action
taken or agreed to be taken by SEACOR or any of its Affiliates) would
prevent SEACOR from accounting for the business combination to be
effected by the Merger as a pooling-of-interests.
Section 4.15. Suppliers and Customers. To the Knowledge of
-----------------------
McCall and except as disclosed on Schedule 4.15, (a) no supplier
providing products, materials or services to any member of the McCall
Group intends to cease selling such products, materials or services to
<PAGE>
any member of the McCall Group or to limit or reduce such sales to any
member of the McCall Group or materially alter the terms or conditions
of any such sales and (b) no customer of any member of the McCall
Group intends to terminate, limit or reduce its or their business
relations with any member of the McCall Group.
Section 4.16. Employee Matters. (a) Schedule 4.16(a) sets
----------------
forth the name, title, current annual compensation rate (including
bonus and commissions, but separately identifying salary or hourly
rate), accrued bonus, accrued sick leave, accrued severance pay and
accrued vacation benefits of each officer of each member of the McCall
Group, and a list of all employment, consulting, employee
confidentiality or similar Contracts to which any member of the McCall
Group is a party. Copies of organizational charts, any employee
handbook(s), and any reports and/or plans prepared or adopted pursuant
to the Equal Employment Opportunity Act of 1972, as amended, have been
provided to SEACOR.
(b) Each of the following is true with respect to each
member of the McCall Group:
(i) each such member is in compliance with all applicable
laws respecting employment and employment practices, terms and
conditions of employment, wages and hours and occupational safety
and health, and is not engaged in any unfair labor practice
within the meaning of Section 8 of the National Labor Relations
Act, and there is no proceeding pending or, to the Knowledge of
McCall, threatened, or, to the Knowledge of McCall, any pending
or threatened investigation against it relating to any thereof,
and, to the Knowledge of McCall, there is no basis for any such
proceeding or investigation;
(ii) to the Knowledge of McCall, none of the employees of
any such member is a member of, or represented by, any labor
union and there are no efforts being made to unionize any of such
employees; and
(iii) to the Knowledge of McCall, there are no charges
or complaints of, or proceedings involving, discrimination or
harassment (including but not limited to discrimination or
harassment based upon sex, age, marital status, race, religion,
color, creed, national origin, sexual preference, handicap or
veteran status) pending or, to the Knowledge of McCall,
threatened, nor, to the Knowledge of McCall, is there any pending
or threatened investigation, including, but not limited to,
investigations before the Equal Employment Opportunity Commission
or any federal, state or local agency or court, with respect to
any such member.
Section 4.17. Employee Benefit Plans. With respect to each
----------------------
member of the McCall Group:
<PAGE>
(a) Schedule 4.17(a) lists each Employee Plan that each
member of the McCall Group maintains, administers, contributes to, or
has any contingent liability with respect to. McCall has provided a
true and complete copy of each such Employee Plan, current summary
plan description, (and, if applicable, related trust documents) and
all amendments thereto and written interpretations thereof together
with (i) the three most recent annual reports prepared in connection
with each such Employee Plan (Form 5500 including, if applicable,
Schedule B thereto); (ii) the most recent actuarial report, if any,
and trust reports prepared in connection with each Employee Plan;
(iii) all material communications received from or sent to the
Internal Revenue Service ("IRS") or the Department of Labor within the
last two years (including a written description of any material oral
communications); (iv) the most recent IRS determination letter with
respect to each Employee Plan and the most recent application for a
determination letter; (v) all insurance contracts or other funding
arrangements; and (vi) the most recent actuarial study of any post-
employment life or medical benefits provided, if any.
(b) Schedule 4.17(b) identifies each Benefit Arrangement
that each member of the McCall Group maintains, administers,
contributes to, or has any contingent liability with respect to.
McCall has furnished to SEACOR copies or descriptions of each Benefit
Arrangement and any of the information set forth in Section 4.17(a)
applicable to any such Benefit Arrangement. Each Benefit Arrangement
has been maintained and administered in substantial compliance with
its terms and with the requirements (including reporting requirements)
prescribed by any and all statutes, orders, rules and regulations
which are applicable to such Benefit Arrangement.
(c) Benefits under any Employee Plan or Benefit Arrangement
are as represented in such documents and have not been increased or
modified (whether written or not written) subsequent to the dates of
such documents. Except as disclosed on Schedule 4.17(c), no member of
the McCall Group has communicated to any employee or former employee
any intention or commitment to modify any Employee Plan or Benefit
Arrangement or to establish or implement any other employee or retiree
benefit or compensation arrangement.
(d) No Employee Plan is (i) a Multiemployer Plan, (ii) a
Title IV Plan or (iii) maintained in connection with any trust
described in Section 501(c)(9) of the Code. No member of the McCall
Group has ever maintained or become obligated to contribute to any
employee benefit plan (i) that is subject to Title IV of ERISA, (ii)
to which Section 412 of the Code applies, or (iii) that is a
Multiemployer Plan. No member of the McCall Group has within the last
five years engaged in, or is a successor corporation to an entity that
has engaged in, a transaction described in Section 4069 of ERISA.
(e) Each Employee Plan which is intended to be qualified
under Section 401(a) of the Code is so qualified and has been so
qualified during the period from its adoption to date, and no event
has occurred since such adoption that would adversely affect
<PAGE>
such qualification and each trust created in connection with each such
Employee Plan forming a part thereof is exempt from tax pursuant to
Section 501(a) of the Code. A favorable determination letter has been
issued by the IRS as to the qualification of each such Employee Plan
under the Code and to the effect that each such trust is exempt from
taxation under Section 501(a) of the Code. Except as disclosed on
Schedule 4.17(e), each Employee Plan has been maintained and
administered in compliance with its terms and with the requirements
(including reporting requirements) prescribed by any and all
applicable statutes, orders, rules and regulations, including but not
limited to ERISA and the Code.
(f) Full payment has been made of all amounts which any
member of the McCall Group is or has been required to have paid as
contributions to or benefits due under any Employee Plan or Benefit
Arrangement under applicable law or under the terms of any such plan
or any arrangement.
(g) No member of the McCall Group, or any of their
respective directors, officers or employees has engaged in any
transaction with respect to an Employee Plan that could subject McCall
to a tax, penalty or liability for a prohibited transaction, as
defined in Section 406 of ERISA or Section 4975 of the Code. None of
the assets of any Employee Plan are invested in employer securities or
employer real property.
(h) To the Knowledge of McCall, there are no facts or
circumstances that give rise to any liability under Title I of ERISA.
(i) No member of the McCall Group has any current or
projected liability in respect of post-retirement or post-employment
medical, death or life insurance, welfare benefits for retired,
current or former employees, except as required to avoid excise tax
under Section 4980B of the Code.
(j) Except as disclosed on Schedule 4.17(j), there is no
litigation, administrative or arbitration proceeding or other dispute
pending or threatened that involves any Employee Plan or Benefit
Arrangement which could reasonably be expected to result in a
liability to the McCall Group or SEACOR.
(k) Except as disclosed on Schedule 4.17(k), no employee or
former employee of any member of the McCall Group will become entitled
to any bonus, employee advance, retirement, severance, job security or
similar benefit or enhanced benefit (including acceleration of an
award, vesting or exercise of an incentive award) or any fee or
payment of any kind solely as a result of any of the transactions
contemplated hereby and no such disclosed payment constitutes a
parachute payment described in Section 280G of the Code.
(l) Except as disclosed in Schedule 4.17(l), no Employee
Plan provides health, medical, death or survivor benefits to any
stockholders or directors who are not employees.
<PAGE>
Section 4.18. Tax Matters. Each of the following is true with
-----------
respect to each member of the McCall Group to the extent applicable to
such member:
(a) All Returns have been, or will be, timely filed by (or
on behalf of) each member of the McCall Group in accordance with all
applicable laws; all Taxes that are due, or claimed by any taxing
authority to be due from or with respect to each member of the McCall
Group have been or will be timely paid by (or on behalf of) each
member of the McCall Group; all Returns of (or including) each member
of the McCall Group have been properly completed in compliance with
all applicable laws and regulations and are true, complete and correct
in all material respects and such Returns are not subject to penalties
under Section 6662 of the Code (or any corresponding provision of
state, local or foreign tax law). With respect to any period for
which Returns have not yet been filed, or for which Taxes are not yet
due or owing, each member of the McCall Group, as the case may be, has
made due and sufficient current accruals for such Taxes as reflected
on its books (including, without limitation, the McCall Latest Balance
Sheet);
(b) There are no outstanding agreements, consents, waivers
or arrangements extending the statutory period of limitation
applicable (A) to file any Return or (B) for assessment or collection
of any Taxes due from or with respect to any member of the McCall
Group for any period prior to the date hereof, and no member of the
McCall Group has been requested to enter into any such agreement,
consent, waiver or arrangement;
(c) There are no Liens with respect to Taxes (other than
for current Taxes not yet due and payable) upon any of the assets of
any member of the McCall Group;
(d) All material elections with respect to Taxes affecting
any member of the McCall Group are set forth in Schedule 4.18(d);
(e) All Taxes that any member of the McCall Group is
required by law to withhold or collect (including Taxes required to be
withheld and collected from employee wages, salaries and other
compensation) have been duly withheld or collected, and have been
timely paid over to the appropriate governmental authorities;
(f) The United States federal income tax Returns of (or
including) each member of the McCall Group have been examined by the
IRS or the periods covered by such Returns have been closed by
applicable statute of limitations, for all periods through September
30, 1992 in the case of McCall Boat Rentals, Inc., and December 31,
1992 for the rest of the McCall Group. The state, local and foreign
Returns of (or including) each member of the McCall Group have been
examined by the relevant taxing authorities, or the periods covered by
such Returns have been closed by applicable statute of limitations,
for all periods through September 30, 1992 in the case of McCall Boat
Rentals, Inc., and December 31, 1992 for the rest of the McCall Group.
All deficiencies claimed, proposed or asserted or assessments made as
a result of such examinations or any other examinations of any member
<PAGE>
of the McCall Group have been fully paid or fully settled, and no
issue has been raised by any federal, state, local or foreign taxing
authority in any such examination which, by application of the same or
similar principles, could reasonably be expected to result in a
proposed deficiency for any subsequent taxable period. Schedule
4.18(f) sets forth each state and foreign jurisdiction in which any
member of the McCall Group has, in the last three years, filed a
Return.
(g) No Tax audits or other administrative proceedings are
pending with regard to any Taxes for which any member of the McCall
Group may be liable and no member of the McCall Group has received any
notice from any taxing authority that it intends to conduct such an
audit or commence such an administrative proceeding.
(h) No claim has been made by a taxing authority in a
jurisdiction where any member of the McCall Group does not file
Returns that such member of the McCall Group is or may be subject to
taxation by that jurisdiction.
(i) No member of the McCall Group is a party to any
agreement, contract, arrangement or plan that would result, separately
or in the aggregate, in the payment of any "parachute payments" within
the meaning of Code Section 280G (or any comparable provision of state
or local law);
(j) No member of the McCall Group has agreed, nor is it
required, to make any adjustment under Code Section 481(a) (or any
comparable provision of state or local law) by reason of a change in
any accounting method or otherwise, and there is no application
pending with any taxing authority requesting permission for any
changes in any accounting method of any member of the McCall Group.
Neither the IRS nor any comparable taxing authority has proposed to
any member of the McCall Group in writing or, to the Knowledge of
McCall, otherwise proposed any such adjustment or change in accounting
method.
(k) No member of the McCall Group has filed a consent
pursuant to the collapsible corporation provisions of Section 341(f)
of the Code (or any corresponding provision of state, local or foreign
income law) or agreed to have Section 341(f)(2) of the Code (or any
corresponding provision of state, local or foreign income tax law)
apply to any disposition of any asset owned by it;
(l) None of the assets of any member of the McCall Group is
property that such company is required to treat as being owned by any
other 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 Tax Reform Act of 1986;
<PAGE>
(m) None of the assets of any member of the McCall Group
directly or indirectly secures any debt, the interest on which is tax
exempt under Section 103(a) of the Code;
(n) None of the assets of any member of the McCall Group
(i) is subject to Section 168(g)(i)(A) of the Code or (ii) constitutes
"tax-exempt use property" within the meaning of Section 168(h) of the
Code;
(o) No member of the McCall Group has made a deemed
dividend election under Section 1.1502- 32(f)(2) of the Treasury
Regulations or a consent dividend election under Section 565 of the
Code;
(p) No member of the McCall Group has ever been a member of
an affiliated group of corporations filing a consolidated combined or
unitary Return other than a group of which McCall is the parent
corporation; and
(q) No member of the McCall Group is (or has ever been) a
party to any tax sharing agreement nor has any such member assumed the
tax liability of any other person under contract.
Section 4.19. Litigation. Except as disclosed on Schedule 4.19,
----------
there are no actions, suits, proceedings, arbitrations or
investigations pending or, to the Knowledge of McCall, threatened
before any court, any governmental agency or instrumentality or any
arbitration panel, against or affecting any member of the McCall Group
or, to the Knowledge of McCall, any of the directors or officers of
the foregoing. To the Knowledge of McCall, no facts or circumstances
exist that would be likely to result in the filing of any such action
that would have a Material Adverse Effect on the McCall Group. Except
as disclosed on Schedule 4.19, no member of the McCall Group is
subject to any currently pending judgment, order or decree entered in
any lawsuit or proceeding. All matters listed on Schedule 4.19 are
either adequately covered by insurance or accounted for through the
establishment of reasonable reserves on McCall's Latest Balance Sheet.
Section 4.20. Insurance. (a) Schedule 4.20(a) contains a list
---------
of the insurance policies that each member of the McCall Group
currently maintains with respect to its business, vessels, properties
and employees as of the date hereof, each of which is in full force
and effect and a complete and correct copy of each has been delivered
to SEACOR. All insurance premiums currently due with respect to such
policies have been paid and no member of the McCall Group is otherwise
in default with respect to any such policy, nor has any member of the
McCall Group failed to give any notice or, to the Knowledge of McCall,
present any claim under any such policy in a due and timely manner.
There are no outstanding unpaid claims under any such policy other
than any pending claims under any of McCall's marine insurance
policies, the amount of which claims have been recorded as a
receivable and all of which are fully collectible. No member of the
McCall Group has
<PAGE>
received notice of cancellation or non-renewal of any such policy.
Such policies are sufficient for compliance with all requirements of
law and all agreements to which any member of the McCall Group is a
party.
(b) Except as disclosed on Schedule 4.20(b), no member of
the McCall Group is or has ever been a member of any protection or
indemnity club.
Section 4.21. Environmental Compliance. (a) Except as set
------------------------
forth on Schedule 4.21(a), each member of the McCall Group is and, to
the Knowledge of McCall, at all times in the past has been in
compliance with all Environmental Laws and each member of the McCall
Group possesses all necessary licenses, permits, authorizations, and
other approvals and authorizations that are required under the
Environmental Laws ("Environmental Permits").
(b) Except as set forth on Schedule 4.21(b), no member of
the McCall Group is, nor has been, subject to any pending or, to the
Knowledge of McCall, threatened investigations, administrative or
judicial proceedings pursuant to, or has received any notice of any
violation of, or claim alleging liability under, any Environmental
Laws, and, to the Knowledge of McCall, no facts or circumstances exist
that would be likely to result in a claim, citation or allegation
against any member of the McCall Group for a violation of, or alleging
liability under, any Environmental Laws.
(c) Except as set forth on Schedule 4.21(c), there are no
above ground or underground tanks of any type (including tanks storing
gasoline, diesel fuel, oil or other petroleum products) or disposal
sites for hazardous substances, hazardous wastes or any other waste,
located on or under the real estate currently owned, leased or used by
any member of the McCall Group and, to the Knowledge of McCall, there
were no such disposal sites located on or under the real estate
previously owned, leased or used by any member of the McCall Group on
the date of the sale thereof by any member of the McCall Group or
during the period of lease for use by any member of the McCall Group.
(d) Except in the ordinary course of business or as listed
on Schedule 4.21(d), and in all cases in compliance with Environmental
Laws, no member of the McCall Group has engaged any third party to
handle, transport or dispose of Hazardous Substances (including for
this purpose but not limited to, gasoline, diesel fuel, oil or other
petroleum products, or bilge waste) on its behalf. The disposal by
each member of the McCall Group of its hazardous substances and wastes
has been in compliance with all Environmental Laws.
(e) To the Knowledge of McCall, no asbestos or asbestos
containing materials have been used in the construction, repair,
fitting out or retrofitting of any of the McCall Vessels.
<PAGE>
Section 4.22. Compliance With Law; Permits. Except with respect
----------------------------
to Environmental Laws, which is the subject of Section 4.21, the
following statements are true and correct:
(a) The operations and activities of each member of the
McCall Group complies with all applicable laws, regulations,
ordinances, rules or orders of any federal, state or local court or
any governmental authority except for any violation or failure to
comply that could not reasonably be expected to result in a Material
Adverse Effect on the McCall Group.
(b) Each member of the McCall Group possesses all
governmental licenses, permits and other governmental authorizations
that are (i) required under all federal, state and local laws and
regulations for the ownership, use and operation of its assets or (ii)
otherwise necessary to permit the conduct of its business without
interruption, and such licenses, permits and authorizations are in
full force and effect and have been and are being fully complied with
by it except for any violation or failure to comply that could not
reasonably be expected to result in a Material Adverse Effect on the
McCall Group. No member of the McCall Group has received any notice
of any violation of any of the terms or conditions of any such
license, permit or authorization and, to the Knowledge of McCall, no
facts or circumstances exist that could form the basis of a
revocation, claim, citation or allegation against it for a violation
of any such license, permit or authorization. No such license, permit
or authorization or any renewal thereof will be terminated, revoked,
suspended, modified or limited in any respect as a result of the
transactions contemplated by this Agreement except for any violation
or failure to comply that could not reasonably be expected to result
in a Material Adverse Effect on the McCall Group.
Section 4.23. Interests in Clients, Suppliers, Etc. Except as
------------------------------------
set forth on Schedule 4.23, no officer or director of any member of
the McCall Group 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 McCall Group or that has
entered into any contract with any member of the McCall Group.
Ownership of less than 1% of any class of securities of a company
whose securities are registered under the Exchange Act will not be
deemed to be a financial interest for purposes of this Section 4.23.
Section 4.24. Transactions With Related Parties. (a) Schedule
---------------------------------
4.24(a) lists all transactions between January 1, 1993 and the date of
this Agreement involving, or for the benefit of, any member of the
McCall Group, on the one hand, and any director or officer of any
member of the McCall Group or Affiliate of such director or officer,
on the other hand, including (i) any debtor or creditor relationship,
(ii) any transfer or lease of real or personal property or charter or
management of any McCall Vessel, and (iii) purchases or sales of
products or services.
<PAGE>
(b) Schedule 4.24(b) lists (i) all agreements and claims of
any nature that any officer or director of any member of the McCall
Group or any Affiliate (other than another member of the McCall Group)
of such officer or director has with or against any member of the
McCall Group as of the date of this Agreement that are not identified
on the McCall Latest Balance Sheet or the notes thereto and (ii) all
agreements and claims of any nature that any member of the McCall
Group has with or against any officer or director of any member of the
McCall Group or any Affiliate (other than another member of the McCall
Group) of such officer or director as of the date of this Agreement
that are not identified on the McCall Latest Balance Sheet or the
notes thereto.
Section 4.25. Broker's and Finder's Fee. No agent, broker,
-------------------------
person or firm acting on behalf of any member of the McCall Group is
or will be entitled to any commission or broker's or finder's fee from
any of the parties hereto, or from any Affiliate of the parties
hereto, in connection with any of the transactions contemplated
herein.
Section 4.26. Disclosure. No representations or warranties by
----------
McCall in this Agreement and no statement contained in the schedules
or exhibits or in any certificate to be delivered pursuant to this
Agreement, contains or will contain any untrue statement of material
fact or omits or will omit to state any material fact necessary, in
light of the circumstances under which it was made, in order to make
the statements herein or therein not misleading.
Section 4.27. Intellectual Property. (a) Schedule 4.27 contains
---------------------
a list of any trademarks, service marks, trade names, copyrights and
patents (and any application for the registration thereof), owned or
licensed by a member of the McCall Group, specifying as to each, as
applicable: (i) the nature of such Intellectual Property Right; (ii)
the owner of each Intellectual Property Right licensed by a member of
the McCall Group; (iii) the expiration or termination date of each
third party license; and (iv) any third Person to whom any
Intellectual Property Right owned by a member of the McCall Group is
licensed. All of the Intellectual Property Rights owned by any member
of the McCall Group are owned by such member free and clear of Liens.
All third party licenses are valid, enforceable and in full force and
effect, and the interests of any member of the McCall Group under such
third party licenses are held free and clear of any Liens. No member
of the McCall Group has any obligation to make any royalty or other
payment to any Person in connection with the use of or right to use
any Intellectual Property Right. The making, using or selling of
products or services incorporating the subject matter of any
Intellectual Property Rights of any member of the McCall Group does
not infringe, violate or conflict with any Intellectual Property
Rights of any other Person.
(b) To the Knowledge of McCall, the use by any member of
the McCall Group of the name "McCall" or any variant or derivative
thereof used by any member of the McCall Group on the date hereof does
not violate or infringe any Intellectual Property Right of any Person.
<PAGE>
ARTICLE 5.
REPRESENTATIONS AND WARRANTIES OF SEACOR AND SUB
SEACOR and Sub represent and warrant to McCall as follows:
Section 5.1. Organization and Citizenship. (a) SEACOR and Sub
----------------------------
are corporations duly organized, validly existing and in good standing
under the laws of the State of Delaware and Louisiana, respectively,
and have all corporate power and authority to carry on their
businesses as now being conducted and to own, lease and operate their
properties. Each other member of the SEACOR Affiliated Group is duly
organized under the laws of the state or foreign nation of its
organization and has all the requisite power and authority under the
laws of such jurisdiction to carry on its business as now being
conducted and to own its properties. Each member of the SEACOR
Affiliated Group is duly qualified to do business and is in good
standing in each state and foreign jurisdiction in which the character
or location of the properties owned or leased by it or the nature of
the business conducted by it makes such qualification necessary,
except where the failure to be so qualified or in good standing would
not have a Material Adverse Effect on SEACOR.
(b) Each of SEACOR and Sub is a citizen of the United
States within the meaning of Section 2 of the Shipping Act, 1916, as
amended for the purposes of owning and operating vessels in the U.S.
coastwise trade.
Section 5.2. Capitalization. (a) The authorized capital stock
--------------
of SEACOR consists exclusively of 20,000,000 shares of common stock,
$.01 par value per share, of which 8,513,825 shares were issued and
outstanding and 55,768 shares were held in its treasury as of May 28,
1996. All of such issued and outstanding shares have been validly
issued, are fully paid and nonassessable and were issued free of
preemptive rights, in compliance with any rights of first refusal, and
in compliance with all legal requirements.
(b) The authorized capital stock of Sub consists of 100
shares of Common Stock, $.01 par value per share, of which 100 shares
are issued and outstanding and owned by SEACOR and no shares are held
in its treasury as of the date hereof. All of such issued and
outstanding shares have been validly issued, are fully paid and
nonassessable and were issued free of pre-emptive rights, in
compliance with any rights of first refusal, and in compliance with
all legal requirements.
Section 5.3. Authority; Enforceable Agreements. (a) SEACOR
---------------------------------
and Sub each has the requisite corporate power and authority to enter
into this Agreement and to consummate the transactions contemplated
hereby. The execution and delivery of this Agreement by SEACOR and
Sub and the consummation by SEACOR and Sub of the transactions
contemplated hereby have been duly authorized by all necessary
corporate action on the part of SEACOR and Sub.
<PAGE>
(b) This Agreement has been duly executed and delivered by
SEACOR and Sub, and (assuming due execution and delivery by the other
parties hereto) constitutes a valid and binding obligation of SEACOR
and Sub, enforceable against SEACOR and Sub in accordance with its
terms, except as such enforceability may be limited by bankruptcy,
insolvency, reorganization or similar laws affecting creditors' rights
generally. The other agreements entered, or to be entered, into by
SEACOR and Sub in connection with this Agreement have been, or will
be, duly executed and delivered by SEACOR and Sub and (assuming due
execution and delivery by the other parties thereto) constitute, or
will constitute, valid and binding obligations of SEACOR and Sub,
enforceable against SEACOR and Sub in accordance with their terms,
except as such enforceability may be limited by bankruptcy,
insolvency, reorganization or similar laws affecting creditors' rights
generally.
Section 5.4. No Conflicts or Consents. (a) Neither the
------------------------
execution, delivery nor performance of this Agreement by SEACOR or Sub
nor the consummation of the transactions contemplated hereby will (i)
violate, conflict with, or result in a breach of any provision of,
constitute a default (or an event that, with notice or lapse of time
or both, would constitute a default) under, result in the termination
of, or accelerate the performance required by, or result in the
creation of any adverse claim against any of the properties or assets
of any member of the SEACOR Affiliated Group under (A) the
certificates of incorporation, by-laws or other organizational
documents of any member of the SEACOR Affiliated Group or (B) any
note, bond, mortgage, indenture, deed of trust, lease, license,
agreement or other instrument or obligation to which any member of the
SEACOR Affiliated Group is a party, or by which any of its assets are
bound, or (ii) subject to obtaining clearance under the HSR Act,
violate any order, writ, injunction, decree, judgment, statute, rule
or regulation of any governmental body to which any member of the
SEACOR Affiliated Group is subject or by which any of its assets are
bound.
(b) No consent, approval, order, permit or authorization
of, or registration, declaration or filing with, any Person or of any
government or any agency or political subdivision thereof is required
for the execution, delivery and performance by SEACOR or Sub of this
Agreement and the covenants and transactions contemplated hereby or
for the execution, delivery and performance by SEACOR or Sub of any
other agreements entered, or to be entered, into by SEACOR or Sub in
connection with this Agreement, except for (i) the filing of the HSR
Report by SEACOR under the HSR Act and the early termination or
expiration of applicable waiting periods thereunder, (ii) the filing
of the Registration Statement on Form S-3 with the SEC, any filings,
consents or approvals in connection therewith and the declaration of
effectiveness thereof by the SEC as contemplated by the Investment and
Registration Rights Agreement and (iii) the filing of the Certificate
of Merger as provided in Section 2.1(b) hereof.
Section 5.5. Corporate Documents. SEACOR has delivered to
-------------------
McCall true and complete copies of its certificate of incorporation
and by-laws, as amended or restated through the date of this
Agreement.
<PAGE>
Section 5.6. SEC Documents; Financial Statements; Liabilities.
------------------------------------------------
(a) SEACOR has filed all required reports, schedules, forms,
statements and other documents with the SEC since December 31, 1993
(the "SEACOR SEC Documents"). As of their respective dates, the
SEACOR SEC Documents complied as to form in all material respects with
the requirements of the Securities Act or the Exchange Act, as the
case may be, and the rules and regulations of the SEC promulgated
thereunder applicable to such SEACOR SEC Documents, and none of the
SEACOR SEC Documents contained any untrue statement of a material fact
or omitted to state a material fact required to be stated therein or
necessary in order to make the statements therein, in light of the
circumstances under which they were made, not misleading.
(b) The SEACOR Financial Statements included in the SEACOR
SEC Documents have been prepared in accordance with GAAP applied on a
basis consistent with prior periods, and present fairly the financial
position of SEACOR and its subsidiaries at the dates of the balance
sheets included therein and the results of operations and cash flows
for the periods then ended, except, in the case of the SEACOR Interim
Financial Statements, as permitted by Rule 10-01 of Regulation S-X of
the SEC. The SEACOR Interim Financial Statements reflect all
adjustments (consisting only of normal recurring adjustments) that are
necessary for a fair statement of the results for the interim periods
presented therein. No member of the SEACOR Affiliated Group has, nor
are any of their respective assets subject to, any liability,
commitment, debt or obligation (of any kind whatsoever whether
absolute or contingent, accrued, fixed, known, unknown, matured or
unmatured), except (i) as and to the extent reflected on the SEACOR
Latest Balance Sheet, (ii) as may have been incurred or may have
arisen since the date of the SEACOR Latest Balance Sheet in the
ordinary course of business and that are not material individually or
in the aggregate or (iii) as permitted by this Agreement.
Section 5.7. Absence of Certain Changes or Events. Since the
------------------------------------
date of the SEACOR Latest Balance Sheet, each member of the SEACOR
Affiliated Group has conducted its business only in the ordinary
course, and has not:
(a) amended its certificate of incorporation, by-laws or
similar organizational documents;
(b) merged or consolidated with another Person (other than
a subsidiary) or acquired or agreed to acquire any Person, or sold,
leased, transferred or otherwise disposed of any material portion of
its assets except for fair value in the ordinary course of business;
(c) suffered any damage, destruction or loss (whether or
not covered by insurance) which has had or could reasonably be
expected to have a Material Adverse Effect on the SEACOR Affiliated
Group; or
<PAGE>
(d) declared or paid any dividend or made any distribution
with respect to any of its equity interests, or redeemed, purchased or
otherwise acquired any of its equity interests, or issued, sold or
granted any equity interests or any option, warrant or other right to
purchase or acquire any such interest or effected any split or
reclassification thereof other than (i) grants of stock options or
restricted stock and issuances of shares of SEACOR Common Stock upon
the exercise of stock options or conversion of any outstanding
convertible securities, (ii) the acceptance by SEACOR of any shares in
consideration of the exercise of any stock options or in satisfaction
of any tax or tax withholding obligations of the holders of such
options, and (iii) payments within the SEACOR Affiliated Group by
entities other than SEACOR as part of its cash management program; or
(e) agreed, whether or not in writing, to do any of the
foregoing.
Section 5.8. Contracts. Each Contract which any member of the
---------
SEACOR Affiliated Group is a party that would be required to be filed
as an exhibit to a report, schedule, form, statement or other document
filed by SEACOR with the SEC (each a "Material Contract") has been so
filed and, except as set forth on Schedule 5.8, between the date of
the filing of its most recent Quarterly Report on Form 10-Q and the
date of this Agreement, SEACOR has not entered into any Material
Contract other than this Agreement. No member of the SEACOR
Affiliated Group has breached, nor is there any pending or, to the
Knowledge of SEACOR, threatened, claim that it has breached, any of
the terms or conditions of any of its Material Contracts, and to the
Knowledge of SEACOR, no other parties to any such Material Contract
have breached any of its terms or conditions.
Section 5.9. Litigation. Except as disclosed in a SEACOR SEC
----------
Document or listed on Schedule 5.9, there are no actions, suits,
proceedings, arbitrations or investigations pending or, to the
Knowledge of SEACOR, threatened, before any court, any governmental
agency or instrumentality or any arbitration panel, against or
affecting any member of the SEACOR Affiliated Group or, to the
Knowledge of SEACOR, any of the directors or officers of the
foregoing, that would have a Material Adverse Effect on SEACOR. To
the Knowledge of SEACOR, no facts or circumstances exist that would be
likely to result in the filing of any such action. No member of the
SEACOR Affiliated Group is subject to any currently pending judgment,
order or decree entered in any lawsuit or proceeding.
Section 5.10. Legality of SEACOR Common Stock. The SEACOR
-------------------------------
Common Stock to be issued in connection with the Merger, when issued
and delivered in accordance with the terms hereof, will be duly
authorized, validly issued, fully paid and non-assessable, and free of
pre-emptive rights.
Section 5.11. Broker's and Finder's Fee. No agent, broker,
-------------------------
Person or firm acting on behalf of SEACOR is or will be entitled to
any commission or broker's or finder's fee from any of the parties
hereto, or from any Affiliate of the parties hereto, in connection
with any of the transactions contemplated herein.
<PAGE>
ARTICLE 6.
PRE-CLOSING COVENANTS
Section 6.1. Hart-Scott-Rodino; Cooperation and Best Efforts.
-----------------------------------------------
(a) McCall and SEACOR shall cooperate in good faith and take all
actions reasonably necessary or appropriate to file, and expeditiously
and diligently prosecute to a favorable conclusion, the HSR Reports
required to be filed by each of them in connection herewith with the
Federal Trade Commission (the "FTC") and the Department of Justice
(the "DOJ") pursuant to the HSR Act; provided that SEACOR shall not be
required to accept any conditions that may be imposed by the FTC or
the DOJ in connection with such filings that would require the
divestiture of any SEACOR or McCall assets or otherwise have a
Material Adverse Effect on SEACOR or McCall.
(b) Each party shall cooperate with the other and use its
best efforts to (i) receive all necessary and appropriate consents of
third parties to the transactions contemplated hereunder, (ii) satisfy
all requirements prescribed by law for, and all conditions set forth
in this Agreement to, the consummation of the Merger, and (iii) effect
the Merger in accordance with this Agreement at the earliest
practicable date.
Section 6.2. Conduct of Business By Both Parties Prior to the
------------------------------------------------
Closing Date. During the period from the date of this Agreement to
------------
the Effective Time, McCall and SEACOR shall each use its best efforts
to preserve the goodwill of suppliers, customers and others having
business relations with it and to do nothing knowingly to impair its
ability to keep and preserve its business as it exists on the date of
this Agreement. Without limiting the generality of the foregoing,
during the period from the date of this Agreement to the Effective
Time of the Merger each of McCall and SEACOR shall not, without the
prior written consent of the other:
(a) declare, set aside, increase or pay any dividend
(including any stock dividends), or declare or make any distribution
on, or directly or indirectly combine, redeem, reclassify, purchase,
or otherwise acquire, any shares of its capital stock or authorize the
creation or issuance of, or issue, deliver or sell any additional
shares of its capital stock or any securities or obligations
convertible into or exchangeable for its capital stock or effect any
stock split or reverse stock split or other recapitalization, except
(i) grants of stock options or restricted stock and the issuance of
shares of SEACOR Common Stock upon the exercise of stock options or
conversion of any outstanding convertible security; (ii) the
acceptance by SEACOR of any shares in consideration of the exercise of
any stock options or in satisfaction of any tax or tax withholding
obligations of the holders of such options, and (iii) payments within
the SEACOR Affiliated Group by entities other than SEACOR as part of
its cash management program;
<PAGE>
(b) amend its certificate of incorporation or by-laws, or
adopt or amend any resolution or agreement concerning indemnification
of its directors, officers, employees or agents;
(c) pledge or otherwise encumber any shares of its capital
stock, any other voting securities and any securities convertible
into, or any rights, warrants or options to acquire, any such shares,
or any other voting securities or convertible securities;
(d) commit or omit to do any act which act or omission
would cause a breach of any covenant contained in this Agreement or
would cause any representation or warranty contained in this Agreement
to become untrue, as if each such representation and warranty were
continuously made from and after the date hereof to the Effective
Time;
(e) violate any applicable law, statute, rule, governmental
regulation or order that would have a Material Adverse Effect on such
party;
(f) fail to maintain its books, accounts and records in the
usual manner on a basis consistent with that heretofore employed;
(g) take any action that would prevent the accounting for
the business combination to be effected by the Merger as a pooling-of-
interests; or
(h) authorize any of, or agree or commit to do any of, the
foregoing actions.
Section 6.3. Conduct of Business By McCall Prior to the Closing
--------------------------------------------------
Date. During the period from the date of this Agreement to the
----
Effective Time, in addition to its other covenants set forth in
Section 6.2, each member of the McCall Group shall use its best
efforts to preserve the possession and control of all of its assets
other than those permitted to be disposed of pursuant to the terms of
this Agreement, shall conduct its business only in the ordinary course
consistent with past practice, and, except as otherwise provided
herein, shall not, without the prior written consent of SEACOR:
(a) except as contemplated by Section 4.17, enter into or
modify any employment, compensation, severance or similar agreement or
arrangement with any director or employee, or grant any increase in
the rate of wages, salaries, bonuses, employee advances or other
compensation or benefits of any executive officer or other employee,
other than any such increase that is both in the ordinary course of
business consistent with past practice and in an amount such that,
after giving effect thereto, aggregate employee compensation expense
(considered on an annualized basis) does not exceed 105% of the
aggregate employee compensation expense for the fiscal year ending
December 31, 1995;
(b) enter into any new line of business;
<PAGE>
(c) acquire or agree to acquire (i) by merging or
consolidating with, or by purchasing a material portion of the assets
of, or by any other manner, any business or any Person or (ii) any
assets that are material, individually or in the aggregate, to the
McCall Group, except purchases of materials, equipment and supplies in
the ordinary course of business consistent with past practice;
(d) except as disclosed on Schedule 6.3(d), sell or
otherwise dispose of any McCall Vessel and, except for dispositions
made in the ordinary course of business and consistent with past
practices, sell, lease, license, mortgage or otherwise encumber or
subject to any Lien or otherwise dispose of any of its other
properties or assets;
(e) except as disclosed on Schedule 6.3(e), (i) incur any
indebtedness for borrowed money; or guarantee any such indebtedness of
another Person, issue or sell any debt securities or warrants or other
rights to acquire any debt securities of such party or any of its
subsidiaries, guarantee any debt securities of another Person, enter
into any "keep well" or other agreement to maintain any financial
condition of another Person or enter into any arrangement having the
economic effect of any of the foregoing, or (ii) make any loans,
advances or capital contributions to, or investments in, any other
Person;
(f) except as disclosed on Schedule 6.3(f), make or agree
to make any new capital expenditures other than those made in the
ordinary course of business and consistent with past practices, but in
no event to exceed in the aggregate $50,000;
(g) place or suffer to exist on any of its assets or
properties any Lien, other than Liens listed on Schedules 4.11(a) or
4.13(a) and Permitted Liens, provided that the obligations
collateralized by such Permitted Liens are not delinquent or are being
contested in good faith and in no event shall the contested
obligations, individually or in the aggregate, collateralized by such
Permitted Liens exceed $50,000, in the aggregate, or forgive any
material indebtedness owing to it or any claims which it may have
possessed, or waive any right of substantial value or discharge or
satisfy any material noncurrent liability;
(h) depart from any normal drydock and maintenance
practices or discontinue replacement of spares in operating its fleet;
(i) defer any scheduled maintenance on any McCall Vessels;
(j) enter into any charter for its vessels which have a
term of longer than 60 days at a fixed rate;
(k) authorize any of, or agree or commit to do any of, the
foregoing actions; or
<PAGE>
(l) fail to maintain, renew or assist SEACOR in obtaining
all necessary Environmental Permits required for its business and
vessels.
Section 6.4. Press Releases. McCall and SEACOR will consult
--------------
with each other before issuing, and provide each other the opportunity
to review and comment upon, any press releases or other public
statements with respect to any transactions described in this
Agreement, including the Merger, and shall not issue any such press
releases or make any such public statement prior to such consultation,
except as may be required by applicable law, court process or by
obligations pursuant to a listing agreement with the NASDAQ Stock
Market.
Section 6.5. Cooperation. The McCall Group agrees to cooperate
-----------
with SEACOR and to assist SEACOR in identifying the Environmental
Permits required by SEACOR to operate the business from and after the
Closing Date and will either, where permissible, transfer existing
Environmental Permits of the McCall Group to SEACOR, or, where not
permissible, assist SEACOR in obtaining new Environmental Permits for
the Surviving Corporation.
Section 6.6. Access to Information and Confidentiality. (a)
-----------------------------------------
Prior to the Closing Date, each of McCall and SEACOR shall afford to
the other party and the officers, employees, accountants, counsel,
financial advisors and other representatives of such other party,
reasonable access during normal business hours to their respective
premises, books and records and will furnish to the other party (i) a
copy of each report, schedule, registration statement and other
documents filed by it during such period pursuant to the requirements
of federal or state securities laws and (ii) such other information
with respect to its business and properties as such other party
reasonably requests.
(b) Prior to the Closing, McCall will comply, and shall
cause the other members of the McCall Group to comply, with the
obligations of the Companies relating to SEACOR's due diligence
investigation set forth in paragraph 10 of the term sheet incorporated
by reference into a letter agreement dated April 18, 1996 among
SEACOR, McCall and certain other parties.
(c) Each of McCall and SEACOR will, and will cause its
officers, directors, employees, agents and representatives to, (i)
hold in confidence, unless compelled to disclose by judicial or
administrative process or, in the opinion of its counsel, by other
requirements of law, all nonpublic information concerning the other
party furnished in connection with the transactions contemplated by
this Agreement until such time as such information becomes publicly
available (otherwise than through the wrongful act of such person),
(ii) not release or disclose such information to any other person,
except in connection with this Agreement to its auditors, attorneys,
financial advisors, other consultants and advisors and (iii) not use
such information for any competitive or other purpose other than with
respect to its consideration and evaluation of the transactions
contemplated by this
<PAGE>
Agreement. In the event of termination of this Agreement for any
reason, McCall and SEACOR will promptly return or destroy all
documents containing nonpublic information so obtained from the other
party and any copies made of such documents and any summaries,
analyses or compilations made therefrom.
Section 6.7. Consultation and Reporting. During the period
--------------------------
from the date of this Agreement to the Closing Date, McCall will,
subject to any applicable legal or contractual restrictions, confer on
a regular and frequent basis with SEACOR to report material
operational matters and to report on the general status of ongoing
operations. Each of McCall and SEACOR will notify the other of any
unexpected emergency or other change in the normal course of its
business or in the operation of its properties and of any governmental
complaints, investigations, adjudicatory proceedings, or hearings (or
communications indicating that the same may be contemplated) and will
keep the other fully informed of such events and permit its
representatives prompt access to all materials prepared by or on
behalf of such party or served on them, in connection therewith.
Section 6.8. Update Schedules. Each party hereto will promptly
----------------
disclose to the other any information contained in its representations
and warranties and on the related schedules that is incomplete or no
longer correct; provided, however, that none of such disclosures will
-------- -------
be deemed to modify, amend or supplement the representations and
warranties of such party, unless the other party consents to such
modification, amendment or supplement in writing.
Section 6.9. Notification. McCall shall notify SEACOR of any
------------
vessel that will be drydocked prior to Closing and of any insurable or
noninsurable loss prior to Closing.
ARTICLE 7.
CLOSING CONDITIONS
Section 7.1. Condition Applicable to All Parties. The
-----------------------------------
obligations of each of the parties hereto to effect the Merger and the
other transactions contemplated by this Agreement are subject to the
satisfaction or waiver of the condition that no action, suit or
proceeding before any court or governmental or regulatory authority
will be pending, no investigation by any governmental or regulatory
authority will have been commenced, and no action, suit or proceeding
by any governmental or regulatory authority will have been threatened,
against McCall or SEACOR or any of the principals, officers or
directors of either of them, seeking to restrain, prevent or change
the transactions contemplated hereby or questioning the legality or
validity of any such transactions or seeking substantial damages in
connection with any such transactions.
Section 7.2. Conditions to SEACOR's Obligations. The
----------------------------------
obligations of SEACOR to effect the Merger and the other transactions
contemplated by this Agreement are also subject to the satisfaction or
waiver of the following conditions at or prior to the Closing:
<PAGE>
(a) (i) The representations and warranties of McCall in
this Agreement or in any certificate delivered to SEACOR pursuant
hereto as of the date hereof will be deemed to have been made again at
and as of the Closing Date (without regard to any Schedule updates
furnished by McCall after the date hereof unless consented to by
SEACOR) and will then be true and correct in all material respects,
and (ii) McCall will have performed and complied in all material
respects with all agreements and conditions required by this Agreement
to be performed or complied with by McCall prior to or on the Closing
Date, except to the extent any such representation or warranty or
performance or compliance, as the case may be, is qualified by
materiality or by reference to the term "Material Adverse Effect", in
which case such representation or warranty or performance or
compliance shall be true and correct in all respects.
(b) There shall not have occurred any event or circumstance
that shall have resulted in or is reasonably likely to result in a
Material Adverse Effect with respect to the McCall Group from the date
of the McCall Latest Balance Sheet to the Closing Date.
(c) All waiting periods applicable to the Merger under the
HSR Act shall have been terminated or shall have expired and no
condition shall have been imposed on McCall or SEACOR to obtain such
termination that would require the divestiture of any of either of
such party's assets or otherwise have a Material Adverse Effect on
such party.
(d) All governmental and other material third-party
consents and approvals, if any, necessary to permit the consummation
of the transactions contemplated by this Agreement, including, but not
limited to, the transfer or obtaining of all material permits, or to
permit the continued operation of the business of the McCall Group in
substantially the same manner after the Closing Date as immediately
prior to the Closing Date and otherwise consistent with the provisions
of this Agreement, shall have been received.
(e) The receipt by SEACOR of a certificate executed by the
Chief Executive Officer or Chief Financial Officer of McCall dated the
Closing Date, certifying that the conditions specified in Section
7.2(a) and (b) hereof have been fulfilled.
(f) McCall will have delivered to SEACOR, each dated as of
a date not earlier than five days prior to the Closing Date, (i)
copies of the certificates of incorporation or comparable documents of
each member of the McCall Group, including all amendments thereto,
certified by the appropriate government official of the jurisdiction
of incorporation, (ii) to the extent issued by such jurisdiction,
certificates from the appropriate governmental official to the effect
that each member of the McCall Group is in good standing in such
jurisdiction and listing all organizational documents of the members
of the McCall Group on file, (iii) to the extent issued by such
jurisdiction, a certificate from the appropriate governmental official
in each jurisdiction in which each member of the McCall Group is
qualified to do business to the effect that such member is in good
standing in such jurisdiction and (iv) to the extent issued by such
jurisdiction, certificates as to the tax status
<PAGE>
of each member of the McCall Group in its jurisdiction of organization
and each jurisdiction in which such member is qualified to do
business.
(g) The receipt by SEACOR of a letter of its independent
public accountants, Arthur Andersen LLP, to the effect that pooling-
of-interests accounting for the Merger (under Accounting Principles
Board Opinion No. 16) is appropriate, provided that the Merger is
consummated in accordance with the terms and subject to the conditions
of this Agreement.
(h) SEACOR shall have received from Jones, Walker,
Waechter, Poitevent, Carrere & Denegre, L.L.P., special counsel to
McCall, and Stockwell, Sievert, Viccellio, Clements and Shaddock,
L.L.P., counsel to McCall, opinions, dated as of the Closing Date,
which, together, cover the matters set forth in Exhibit E.
(i) Each of the McCall Stockholders shall have executed and
delivered the Investment and Registration Rights Agreement, an
Indemnification Agreement substantially in the form attached hereto as
Exhibit F (the "Indemnification Agreement"), and an Escrow Agreement
substantially in the form attached hereto as Exhibit G (the "Escrow
Agreement").
(j) Norman F. McCall shall have executed and delivered the
Letter of Employment, in the form attached hereto as Exhibit H
regarding the terms of his employment with the Surviving Corporation
(the "Letter of Employment").
Section 7.3. Conditions to McCall's Obligations. The
----------------------------------
obligations of McCall to effect the Merger and the other transactions
contemplated by this Agreement are also subject to the satisfaction or
waiver of the following conditions at or prior to the Closing:
(a) (i) The representations and warranties of SEACOR in
this Agreement or in any certificate delivered to McCall pursuant
hereto as of the date hereof will be deemed to have been made again at
and as of the Closing Date (without regard to any Schedule updates
furnished by SEACOR after the date hereof unless consented to by
McCall) and will then be true and correct in all material respects,
and (ii) SEACOR will have performed and complied in all material
respects with all agreements and conditions required by this Agreement
to be performed or complied with by SEACOR prior to or on the Closing
Date, except to the extent any such representation or warranty or
performance or compliance, as the case may be, is qualified by
materiality or by reference to the term "Material Adverse Effect", in
which case such representation or warranty or performance or
compliance shall be true and correct in all respects.
(b) There shall not have occurred any event or circumstance
that shall have resulted in or is reasonably likely to result in a
Material Adverse Effect with respect to the SEACOR Affiliated Group
from the date of the SEACOR Latest Balance Sheet to the Closing Date;
provided, however, that a decline in the price per share of SEACOR
-------- -------
<PAGE>
Common Stock on the NASDAQ Stock Market shall not in and of itself
constitute a Material Adverse Effect.
(c) The waiting periods (and any extensions thereof)
applicable to the Merger under the HSR Act shall have been terminated
or shall have expired.
(d) All governmental and other material consents and
approvals, if any, necessary to permit the consummation of the
transactions contemplated by this Agreement shall have been received.
(e) The receipt by McCall of a certificate executed by the
Chief Executive Officer or Chief Financial Officer of SEACOR dated the
Closing Date, certifying that the conditions specified in Section
7.3(a) and (b) hereof have been fulfilled.
(f) SEACOR will have delivered to McCall, each dated as of
a date not earlier than five days prior to the Closing Date,
certificates from the appropriate governmental official to the effect
that SEACOR and Sub are in good standing in their respective
jurisdictions of incorporation and listing all charter documents of
such Persons on file.
(g) The receipt by McCall of an opinion from Weil, Gotshal
& Manges LLP, counsel to SEACOR, and Lugenbuhl, Burke, Wheaton, Peck,
Rankin & Hubbard, Louisiana counsel to SEACOR, which, together, cover
the matters set forth in Exhibit I attached hereto.
(h) SEACOR shall have executed and delivered the Letter of
Employment, the Investment and Registration Rights Agreement, the
Indemnification Agreement, and the Escrow Agreement.
Section 7.4. Waiver of Conditions. Any condition to a party's
--------------------
obligation to effect the Merger hereunder may be waived by that party
in writing.
ARTICLE 8.
POST-CLOSING COVENANTS
Section 8.1. Indemnification of Directors and Officers of
--------------------------------------------
McCall.
------
(a) From and after the Effective Time of the Merger, SEACOR
agrees to indemnify and hold harmless, and to cause the Surviving
Corporation to honor its separate indemnification obligations to, each
person who is an officer or director of McCall (or a member of the
McCall Group serving at the request of McCall) on the date of this
Agreement or has served as such an officer or director at any time
since January 1, 1993 (together with those persons discussed in the
last sentence of this subsection, an "Indemnified
<PAGE>
Person") from and against all damages, liabilities, judgments and
claims (and related expenses including, but not limited to reasonable
attorneys' fees and amounts paid in settlement) based upon or arising
from his or her capacity as an officer or director of McCall (or a
member of the McCall Group serving at the request of McCall), to the
same extent he or she would have been indemnified under the
Certificate of Incorporation or By-laws of McCall or under Section 83
of the LBCL as such documents were in effect on the date of this
Agreement.
(b) The rights to indemnification granted by this Section
8.1 are subject to the following limitations: (i) the total aggregate
indemnification to be provided by SEACOR and/or the Surviving
Corporation pursuant to this Section 8.1 will not exceed, as to all of
the Indemnified Persons described herein as a group, the dollar amount
referred to in Clause (1) of the final sentence of Section 3.1(a), and
SEACOR shall have no responsibility to any Indemnified Person for the
manner in which such sum is allocated among that group (but the
Indemnified Persons may seek reallocation among themselves); (ii)
amounts otherwise required to be paid by SEACOR to an Indemnified
Person pursuant to this Section 8.1 shall be reduced by any amounts
that such Indemnified Person has recovered by virtue of the claim for
which indemnification is sought and SEACOR shall be reimbursed for any
amounts paid by SEACOR that such Indemnified Person subsequently
recovers by virtue of such claim; (iii) no Indemnified Person shall be
entitled to indemnification for any claim made or threatened prior to
the Closing Date of which such Indemnified Person or McCall was aware
but did not promptly disclose to SEACOR prior to the execution of this
Agreement; (iv) any claim for indemnification pursuant to this Section
8.1 must be submitted in writing to the Chief Executive Officer of
SEACOR promptly upon such Indemnified Person becoming aware of such
claim and, in no event, more than six years from the Effective Date,
provided that any such failure to advise promptly has a prejudicial
effect on SEACOR; (v) an Indemnified Person shall not settle any claim
for which indemnification is provided herein without the prior written
consent of SEACOR; and (vi) no indemnification is provided pursuant to
this Section 8.1 in respect of any Losses (as defined in the
Indemnification Agreement) to which SEACOR or any other indemnified
party is entitled to indemnification under the Indemnification
Agreement.
Section 8.2. Publication of Post-Merger Results. SEACOR shall
----------------------------------
use its reasonable best efforts to cause financial results covering at
least thirty days of post-Merger combined operations to be published
as soon as practicable after the passage of such thirty day period.
Section 8.3. Employee Benefits. Following the consummation of
-----------------
the Merger, the SEACOR Affiliated Group shall arrange to make
available to the employees of McCall the benefits listed on Schedules
4.17(a) and 4.17(b) in accordance with the terms of such benefit
plans, policies or arrangements; provided, that this covenant shall
not prohibit the SEACOR Affiliated Group from modifying or rescinding
such benefits thereafter to the extent such modification or rescission
is generally applicable to similarly situated SEACOR Affiliated Group
employees. McCall employees will receive credit for their prior
service with the
<PAGE>
McCall Group for purposes of eligibility, vesting and, without
duplication, benefit accruals with respect to any SEACOR Affiliated
Group plan in which they participate to the same extent such prior
service was credited under similar benefit plans maintained by the
McCall Group.
ARTICLE 9.
TERMINATION
Section 9.1. Termination. This Agreement may be terminated and
-----------
the Merger contemplated herein abandoned at any time before the
Effective Time:
(a) By the mutual consent of the Boards of Directors of
McCall and SEACOR.
(b) By the Board of Directors of either McCall or SEACOR if
there has been a material breach by the other of any representation or
warranty contained in this Agreement or of any covenant contained in
this Agreement, which in either case cannot be, or has not been, cured
within 15 days after written notice of such breach is given to the
party committing such breach, provided that the right to effect such
cure shall not extend beyond the date set forth in Section 9.1(c)
below.
(c) By the Board of Directors of either McCall or SEACOR if
(i) all conditions to Closing required by Article 7 hereof have not
been met by or waived by November 20, 1996 (the "Termination Date"),
(ii) any such condition cannot be met by such date and has not been
waived by each party in whose favor such condition inures, or (iii)
the Merger has not occurred by such date; provided, however, that
-------- -------
neither McCall nor SEACOR shall be entitled to terminate this
Agreement pursuant to this subparagraph (c) if such party is in
willful and material violation of any of its representations,
warranties or covenants in this Agreement.
(d) If any governmental authority shall have issued an
order, decree or ruling or taken any other action permanently
enjoining, restraining or otherwise prohibiting the Merger and such
order, decree, ruling or other action shall have become final and
nonappealable.
Section 9.2. Effect of Termination. Upon termination of this
---------------------
Agreement pursuant to this Article 9, this Agreement shall be void and
of no effect and shall result in no obligation of or liability to any
party or their respective directors, officers, employees, agents or
shareholders, unless such termination was the result of an intentional
breach of any representation, warranty or covenant in this Agreement
in which case the party who breached the representation, warranty or
covenant shall be liable to the other party for damages, and
<PAGE>
all costs and expenses incurred in connection with the preparation,
negotiation, execution and performance of this Agreement.
ARTICLE 10.
MISCELLANEOUS
Section 10.1. Notices. All notices hereunder must be in writing
-------
and will be deemed to have been duly given upon receipt of hand
delivery; certified or registered mail; return receipt requested; or
telecopy transmission with confirmation of receipt:
(a) If to SEACOR:
SEACOR Holdings, Inc.
1370 Avenue of the Americas
New York, New York 10019
Attention: Charles Fabrikant
with a copy to: Randall Blank
and to:
Weil Gotshal & Manges LLP
767 Fifth Avenue
New York, New York 10153
Attention: David E. Zeltner, Esq.
(b) If to McCall:
McCall's Boat Rentals, Inc.
432 Marshall Street
Cameron, Louisiana 70631
Attention: Norman F. McCall
with a copy to:
Stockwell, Sievert, Viccellio, Clements & Shaddock, L.L.P.
First National Bank Building
One Lakeside Plaza
P.O. Box 2900
Lake Charles, Louisiana 70602-2900
Attention: William E. Shaddock, Esq.
<PAGE>
and to:
Jones, Walker, Waechter, Poitevent, Carrere
& Denegre L.L.P.
Place St. Charles
201 St. Charles Avenue
51st Floor
New Orleans, Louisiana 70170-5100
Attention: Carl C. Hanemann, Esq.
Telecopy No.: (504) 582-8398
Such names and addresses may be changed by written notice to each
person listed above.
Section 10.2. Governing Law. This Agreement shall be governed
-------------
by, construed and interpreted in accordance with the laws of the State
of Louisiana, regardless of the laws that might otherwise govern under
applicable principles of conflicts of laws thereof.
Section 10.3. Counterparts. This Agreement may be executed in
------------
counterparts, each of which will be deemed an original but all of
which together will constitute one and the same instrument.
Section 10.4. Interpretation. (a) When a reference is made in
--------------
this Agreement to a Section, Exhibit or Schedule, such reference shall
be to a Section of, or an Exhibit or Schedule to, this Agreement
unless otherwise indicated. The table of contents and headings
contained in this Agreement are for reference purposes only and shall
not affect in any way the meaning or interpretation of this Agreement.
Whenever the words "include," "includes" or "including" are used in
this Agreement, they shall be deemed to be followed by the words
"without limitation."
Section 10.5. Entire Agreement; Severability. (a) This
------------------------------
Agreement, including the Exhibits and Schedules hereto, embodies the
entire agreement and understanding of the parties hereto in respect of
the subject matter contained herein. This Agreement supersedes all
prior agreements and understandings (whether written or oral) between
the parties with respect to such subject matter.
(b) If any provision of this Agreement is determined to be
invalid or unenforceable, in whole or in part, it is the parties'
intention that such determination will not be held to affect the
validity or enforceability of any other provision of this Agreement,
which provisions will otherwise remain in full force and effect.
Section 10.6. Amendment and Modification. This Agreement may be
--------------------------
amended or modified only by written agreement of the parties hereto;
provided, however, that there shall
-------- -------
<PAGE>
be made no amendment that by law requires approval by the stockholders
of a party hereto without the approval of such stockholders.
Section 10.7. Extension; Waiver. At any time prior to the
-----------------
Effective Time of the Merger, the parties may (a) extend the time for
the performance of any of the obligations or other acts of the other
parties, (b) waive any inaccuracies in the representations and
warranties contained in this Agreement or in any document delivered
pursuant to this Agreement or (c) waive compliance with any of the
agreements or conditions contained in this Agreement. The failure of
a party to insist upon strict adherence to any term of this Agreement
on any occasion shall not be considered a waiver or deprive that party
of the right thereafter to insist upon strict adherence to that term
or any other term of this Agreement. No waiver of any breach of this
Agreement shall be held to constitute a waiver of any other or
subsequent breach. Any waiver must be in writing.
Section 10.8. Binding Effect; Benefits. This Agreement will
------------------------
inure to the benefit of and be binding upon the parties hereto and
their respective successors and assigns. Nothing in this Agreement,
express or implied, is intended to confer on any Person other than the
parties hereto and their respective successors and assigns (and, to
the extent provided in Section 8.1, the Indemnified Persons and their
successors and assigns) any rights, remedies, obligations or
liabilities under or by reason of this Agreement.
Section 10.9. Assignability. This Agreement is not assignable
-------------
by any party hereto without the prior written consent of the other
parties.
Section 10.10. Expenses. Each of the parties hereto shall pay
--------
all of its own expenses relating to the transactions contemplated by
this Agreement, including without limitation the fees and expenses of
its own financial, legal and tax advisors.
Section 10.11. Gender and Certain Definitions. All words used
------------------------------
herein, regardless of the number and gender specifically used, shall
be deemed and construed to include any other number, singular or
plural, and any other gender, masculine, feminine or neuter, as the
context requires.
<PAGE>
IN WITNESS WHEREOF, the parties hereto have duly executed this
Agreement as of the date first written above.
SEACOR HOLDINGS, INC.
By:/s/ Milton Rose
-----------------------
Name: Milton Rose
Title: Vice-President
SEACOR ENTERPRISES, INC.
By:/s/ Milton Rose
-----------------------
Name: Milton Rose
Title: President
MCCALL ENTERPRISES, INC.
By:/s/ Norman McCall
-----------------------
Name: Norman McCall
Title: President
<PAGE>
STATE OF LOUISIANA
PARISH OF CALCASIEU
On this 30th day of May, 1996, before me, a Notary Public in
and for the State and County aforesaid, personally appeared
Milton Rose, known by me to be the person of the above name
and an officer of SEACOR Holdings, Inc. duly authorized to execute
this Agreement and Plan of Merger on behalf of such corporation, who
signed and executed the foregoing instrument on behalf of such
corporation.
/s/ Stewart Peck
-----------------------------------
Notary Public
My Commission Expires: at death
-------------
STATE OF LOUISIANA
PARISH OF CALCASIEU
On this 30th day of May, 1996, before me, a Notary Public in
and for the State and County aforesaid, personally appeared
Milton Rose, known by me to be the person of the above name
and an officer of SEACOR Enterprises, Inc. duly authorized to execute
this Agreement and Plan of Merger on behalf of such corporation, who
signed and executed the foregoing instrument on behalf of such
corporation.
/s/ Stewart Peck
-----------------------------------
Notary Public
My Commission Expires: at death
-------------
STATE OF LOUISIANA
PARISH OF CALCASIEU
On this 30th day of May, 1996, before me, a Notary Public in
and for the State and Parish aforesaid, personally appeared
Norman McCall, known by me to be the person of the above name
and an officer of McCall Enterprises, Inc. duly authorized to execute
this Agreement and Plan of Merger on behalf of such corporation, who
signed and executed the foregoing instrument on behalf of such
corporation.
/s/ Stewart Peck
-----------------------------------
Notary Public
My Commission Is For Life
<PAGE>
CERTIFICATION
I, Mary Liles, Assistant Secretary of SEACOR Enterprises, Inc.,
a Louisiana corporation, (the "Corporation"), hereby certify that the
above and foregoing Agreement and Plan of Merger dated as of May 31,
1996, and the execution thereof by the officer designated on behalf of
the corporation, was approved by Unanimous Written Consent of the
Board of Directors of the Corporation dated May 31, 1996, and by all
of the owners and holders of record of the issued and outstanding
shares of stock of the Corporation by Unanimous Written Consent of
Shareholders dated May 31, 1996, copies of which Unanimous Written
Consents have been filed in the records of proceedings and minutes of
the Board of Directors and shareholders of the Corporation.
May 31, 1996
/s/ Mary Liles
-------------------------
Assistant Secretary
I, Joyce C. McCall, Secretary of McCall Enterprises, Inc.,
a Louisiana corporation, (the "Corporation"), hereby certify that the
above and foregoing Agreement and Plan of Merger dated as of May 31,
1996, and the execution thereof by the officer designated on behalf of
the corporation, was approved by Unanimous Written Consent of the
Board of Directors of the Corporation dated May 31, 1996, and by all
of the owners and holders of record of the issued and outstanding
shares of stock of the Corporation by Unanimous Written Consent of
Shareholders dated May 31, 1996, copies of which Unanimous Written
Consents have been filed in the records of proceedings and minutes of
the Board of Directors and shareholders of the Corporation.
May 31, 1996
/s/ Joyce C. McCall
-------------------------
Secretary
EXHIBIT 2.2
AGREEMENT AND PLAN OF MERGER
by and among
SEACOR HOLDINGS, INC.,
SEACOR SUPPORT SERVICES, INC.
and
McCALL SUPPORT VESSELS, INC.
Dated as of May 31, 1996
<PAGE>
TABLE OF CONTENTS
Page
ARTICLE 1.
DEFINITIONS . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Section 1.1. Definitions . . . . . . . . . . . . . . . . . 1
ARTICLE 2.
THE CLOSING; THE MERGER; EFFECTS OF THE MERGER . . . . . . . . . 10
Section 2.1. Closing . . . . . . . . . . . . . . . . . . . 10
Section 2.2. The Merger . . . . . . . . . . . . . . . . . 10
Section 2.3 Effects of the Merger; Certificate and By-laws;
Directors and Officers . . . . . . . . . . 10
ARTICLE 3.
MERGER CONSIDERATION; CONVERSION OF SHARES . . . . . . . . . . . 11
Section 3.1. Conversion of Shares . . . . . . . . . . . . 11
Section 3.2. Exchange of Stock Certificates; Record Date . 12
Section 3.3. No Further Rights in McCall Common Stock . . 13
Section 3.4. Determination of Final Adjusted Net Assets. . 13
Section 3.5. Registration Rights Agreement; Restrictive
Endorsement. . . . . . . . . . . . . . . . 14
ARTICLE 4.
REPRESENTATIONS AND WARRANTIES OF MCCALL . . . . . . . . . . . . 15
Section 4.1. Organization and Citizenship . . . . . . . . 15
Section 4.2. Affiliated Entities . . . . . . . . . . . . . 15
Section 4.3. Capitalization . . . . . . . . . . . . . . . 15
Section 4.4. Authority; Enforceable Agreement . . . . . . 16
Section 4.5. No Conflicts or Consents . . . . . . . . . . 16
Section 4.6. Corporate Documents . . . . . . . . . . . . . 17
Section 4.7. Financial Statements; Liabilities . . . . . . 17
Section 4.8. Accounts Receivable . . . . . . . . . . . . . 18
Section 4.9. Absence of Certain Changes or Events . . . . 18
Section 4.10. Contracts . . . . . . . . . . . . . . . . . . 20
Section 4.11. Properties and Leases other than Vessels . . 21
Section 4.12. Condition of McCall's Assets Other than
Vessels. . . . . . . . . . . . . . . . . . 22
Section 4.13. Vessels . . . . . . . . . . . . . . . . . . . 23
<PAGE>
Page
----
Section 4.14. Accounting Matters . . . . . . . . . . . . . 24
Section 4.15. Suppliers and Customers . . . . . . . . . . . 24
Section 4.16. Employee . . . . . . . . . . . . . . . . . . 25
Section 4.17. Employee Benefit Plans . . . . . . . . . . . 26
Section 4.18. Tax Matters . . . . . . . . . . . . . . . . . 28
Section 4.19. Litigation . . . . . . . . . . . . . . . . . 31
Section 4.20. Insurance . . . . . . . . . . . . . . . . . . 31
Section 4.21. Environmental Compliance . . . . . . . . . . 32
Section 4.22. Compliance With Law; Permits . . . . . . . . 33
Section 4.23. Interests in Clients, Suppliers, Etc. . . . . 33
Section 4.24. Transactions With Related Parties . . . . . . 34
Section 4.25. Broker's and Finder's Fee . . . . . . . . . . 34
Section 4.26. Disclosure . . . . . . . . . . . . . . . . . 34
Section 4.27. Intellectual Property . . . . . . . . . . . . 34
ARTICLE 5.
REPRESENTATIONS AND WARRANTIES OF SEACOR AND SUB . . . . . . . . 35
Section 5.1. Organization and Citizenship . . . . . . . . 35
Section 5.2. Capitalization . . . . . . . . . . . . . . . 36
Section 5.3. Authority; Enforceable Agreements . . . . . . 36
Section 5.4. No Conflicts or Consents . . . . . . . . . . 37
Section 5.5. Corporate Documents . . . . . . . . . . . . . 37
Section 5.6. SEC Documents; Financial Statements;
Liabilities . . . . . . . . . . . . . . . 37
Section 5.7. Absence of Certain Changes or Events . . . . 38
Section 5.8. Contracts . . . . . . . . . . . . . . . . . . 39
Section 5.9. Litigation . . . . . . . . . . . . . . . . . 39
Section 5.10. Legality of SEACOR Common Stock . . . . . . . 39
Section 5.11. Broker's and Finder's Fee . . . . . . . . . . 40
ARTICLE 6.
PRE-CLOSING COVENANTS . . . . . . . . . . . . . . . . . . . . . . 40
Section 6.1. Hart-Scott-Rodino; Cooperation and Best
Efforts. . . . . . . . . . . . . . . . . . 40
Section 6.2. Conduct of Business By Both Parties Prior to
the Closing Date . . . . . . . . . . . . . 40
Section 6.3. Conduct of Business By McCall Prior to the
Closing Date . . . . . . . . . . . . . . . 42
Section 6.4. Press Releases . . . . . . . . . . . . . . . 43
Section 6.5. Cooperation . . . . . . . . . . . . . . . . . 44
Section 6.6. Access to Information and Confidentiality . . 44
Section 6.7. Consultation and Reporting . . . . . . . . . 45
Section 6.8. Update Schedules . . . . . . . . . . . . . . 45
Section 6.9. Notification . . . . . . . . . . . . . . . . 45
<PAGE>
Page
----
ARTICLE 7.
CLOSING CONDITION . . . . . . . . . . . . . . . . . . . . . . . . 45
Section 7.1. Condition Applicable to All Parties . . . . . 45
Section 7.2. Conditions to SEACOR's Obligations . . . . . 46
Section 7.3. Conditions to McCall's Obligations . . . . . 48
Section 7.4. Waiver of Conditions . . . . . . . . . . . . 49
ARTICLE 8.
POST-CLOSING COVENANTS . . . . . . . . . . . . . . . . . . . . . 49
Section 8.1. Indemnification of Directors and Officers of
McCall . . . . . . . . . . . . . . . . . . 49
Section 8.2. Publication of Post-Merger Results . . . . . 50
Section 8.3. Employee Benefits . . . . . . . . . . . . . . 50
ARTICLE 9.
TERMINATION . . . . . . . . . . . . . . . . . . . . . . . . . . . 51
Section 9.1. Termination . . . . . . . . . . . . . . . . . 51
Section 9.2. Effect of Termination . . . . . . . . . . . . 51
ARTICLE 10.
MISCELLANEOUS . . . . . . . . . . . . . . . . . . . . . . . . . . 52
Section 10.1. Notices . . . . . . . . . . . . . . . . . . . 52
Section 10.2. Governing Law . . . . . . . . . . . . . . . . 53
Section 10.3. Counterparts . . . . . . . . . . . . . . . . 53
Section 10.4. Interpretation . . . . . . . . . . . . . . . 53
Section 10.5. Entire Agreement; Severability . . . . . . . 54
Section 10.6. Amendment and Modification . . . . . . . . . 54
Section 10.7. Extension; Waiver . . . . . . . . . . . . . . 54
Section 10.8. Binding Effect; Benefits . . . . . . . . . . 54
Section 10.9. Assignability . . . . . . . . . . . . . . . . 54
Section 10.10. Expenses . . . . . . . . . . . . . . . . . . 55
Section 10.11. Gender and Certain Definitions . . . . . . . 55
NYFS11...:\93\73293\0011\1196\AGR6046R.490
<PAGE>
EXHIBITS AND SCHEDULES
EXHIBITS
Exhibit A . . . . . . . . . . . Vessels
Exhibit B . . . . . . . . . . . Certificate of Merger
Exhibit C . . . . . . . . . . . Form of Letter of Transmittal
Exhibit D . . . . . . . . . . . Investment and Registration Rights
Agreement
Exhibit E . . . . . . . . . . . Opinion of McCall's Counsel
Exhibit F . . . . . . . . . . . Indemnification Agreement
Exhibit G . . . . . . . . . . . Escrow Agreement
Exhibit H . . . . . . . . . . . Form of Letter of Employment with
Norman F. McCall
Exhibit I . . . . . . . . . . . Opinion of SEACOR's Counsel
SCHEDULES(1)
Schedule 3.5(a) . . . . . . . . McCall Stockholders
Schedule 4.2(a) . . . . . . . . McCall Group
Schedule 4.2(b) . . . . . . . . Rights to Acquire Securities
Schedule 4.5(a) . . . . . . . . Certain Conflicts
Schedule 4.5(b) . . . . . . . . Consents/Approval Required
Schedule 4.7 . . . . . . . . . Disclosed Liabilities
Schedule 4.8 . . . . . . . . . Accounts Receivable
Schedule 4.9 . . . . . . . . . Certain Changes
Schedule 4.10(a) . . . . . . . Certain Contracts
Schedule 4.10(b) . . . . . . . Material Contracts
Schedule 4.11(a) . . . . . . . Encumbrances on Property
Schedule 4.11(c) . . . . . . . Above Market Rate Leases
Schedule 4.11(d) . . . . . . . Real Property and Leases
Schedule 4.13(a) . . . . . . . Vessels and Liens on Vessels
Schedule 4.13(b) . . . . . . . Leased Vessels
Schedule 4.13(c) . . . . . . . Leases/Charters of Vessels between
Members of the McCall Group
Schedule 4.13(d) . . . . . . . Certain Defects with Vessels
Schedule 4.15 . . . . . . . . . Suppliers and Customers
Schedule 4.16(a) . . . . . . . Certain Employees
__________________
(1) All the above Schedules relate to the McCall Group
unless otherwise indicated.
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<PAGE>
Schedule 4.17(a) . . . . . . . Employee Plans
Schedule 4.17(b) . . . . . . . Employee Benefit Arrangements
Schedule 4.17(c) . . . . . . . Modifications to Employee Benefit
Plans and Arrangements
Schedule 4.17(j) . . . . . . . Litigation Re Employee Plan or
Benefit Arrangements
Schedule 4.17(k) . . . . . . . Certain Employees with Rights to
Certain Entitlements
Schedule 4.17(l) . . . . . . . Benefits to Non-employee
Stockholders and Directors
Schedule 4.18(d) . . . . . . . Material Tax Elections
Schedule 4.18(f) . . . . . . . Returns Filed in State and Foreign
Jurisdictions
Schedule 4.19 . . . . . . . . . Litigation
Schedule 4.20(a) . . . . . . . Insurance Policies
Schedule 4.20(b) . . . . . . . Protection or Indemnity Clubs
Schedule 4.21(a) . . . . . . . Noncompliance with Environmental
Laws
Schedule 4.21(b) . . . . . . . Environmental Administrative or
Judicial Proceedings
Schedule 4.21(c) . . . . . . . Above Ground and Underground Tanks
Schedule 4.21(d) . . . . . . . Hazardous Materials
Schedule 4.23 . . . . . . . . . Officers'/Directors' Relationships
with Competitors of the McCall
Group
Schedule 4.24(a) . . . . . . . Interested Officers'/Directors'
Transactions
Schedule 4.24(b) . . . . . . . Claims of Certain Officers and
Directors
Schedule 4.27 . . . . . . . . . Intellectual Property
Schedule 5.8 . . . . . . . . . Material Contracts of SEACOR
Schedule 5.9 . . . . . . . . . Litigation Involving SEACOR
Schedule 6.3(d) . . . . . . . . Disposed of/Sold Vessels
Schedule 6.3(e) . . . . . . . . Indebtedness
Schedule 6.3(f) . . . . . . . . New Capital Expenditures
NYFS11...:\93\73293\0011\1196\AGR6046R.490
<PAGE>
AGREEMENT AND PLAN OF MERGER
AGREEMENT AND PLAN OF MERGER dated as of May 31, 1996, by and
among SEACOR Holdings, Inc., a Delaware corporation ("SEACOR"), SEACOR
Support Services, Inc., a Louisiana corporation and a direct, wholly-
owned subsidiary of SEACOR ("Sub"), and McCall Support Vessels, Inc.,
a Louisiana corporation ("McCall").
W I T N E S S E T H:
-------------------
WHEREAS, the respective Boards of Directors of SEACOR, Sub and
McCall have determined that it is desirable and in the best interests
of the parties to this Agreement and their respective stockholders to
provide for the merger of Sub into McCall (the "Merger"), with the
result that McCall shall become a wholly-owned subsidiary of SEACOR
pursuant to the terms and subject to conditions hereof;
WHEREAS, for Federal income tax purposes, it is intended that the
Merger shall qualify as a reorganization within the meaning of Section
368(a) of the Internal Revenue Code of 1986, as amended (the "Code"),
and the rules and regulations thereunder;
NOW, THEREFORE, in consideration of the representations,
warranties and covenants contained herein, the parties agree as
follows:
ARTICLE 1.
DEFINITIONS
Section 1.1. Definitions. As used in this Agreement, the
-----------
following terms when capitalized have the meanings indicated:
"Adjusted Net Assets" shall mean an amount equal to the
consolidated assets, other than Vessel Assets, of McCall and its
subsidiaries (including, but not limited to, cash and cash
equivalents, marketable securities, deposits, accounts receivable and
prepaid expenses) determined in accordance with GAAP (except as
provided in the provisos to this definition) reduced by the following:
(i) the book value of all personal property (including, without
limitation, vehicles, office equipment and furniture) and
improvements; (ii) appropriate reserves under GAAP; (iii) investments
in any of the Companies or SEAMAC LLC; and (iv) all liabilities
(including notes payable to current stockholders of McCall) as
determined in accordance with GAAP other than deferred taxes related
to Vessel Assets; provided,
--------
<PAGE>
however, that (a) for the purpose of calculating Adjusted Net Assets,
-------
McCall shall be deemed to have an interest in the assets and
liabilities of each of its subsidiaries that is not wholly-owned equal
to the product of McCall's percentage ownership of the common stock of
such subsidiary and the amount of such subsidiary's assets and
liabilities, (b) Adjusted Net Assets shall be increased by the
expenses of any drydockings of McCall Vessels incurred by McCall or
its subsidiaries between the date hereof and the Closing (but not the
expenses of moving the vessels to the dock) and (c) Adjusted Net
Assets shall be calculated on the assumption that any member of the
McCall Group that currently accounts on a cash basis converted to
accounting on an accrual basis (and any Tax liability currently
payable as a result of such conversion shall be taken into account)
and, provided further, in the event that, prior to the Closing, any of
-------- -------
the McCall Vessels is sold or is subject to a total loss or
constructive total loss, the amount of Adjusted Net Assets shall be
(1) increased by the amount, if any, by which the proceeds from such
sale or the proceeds (including any amount recoverable from insurance
or other sources) from such loss (the "Disposition Proceeds") exceed
the value for such vessel set forth on Exhibit A hereto, and (2)
decreased by the amount, if any, by which the value for such vessel
set forth on Exhibit A hereto exceeds the Disposition Proceeds.
"Affiliate" shall have the meaning ascribed to such term by Rule
12b-2 promulgated under the Exchange Act.
"Agreement" shall mean this Agreement and Plan of Merger,
including the Schedules and Exhibits hereto, all as amended or
otherwise modified from time to time.
"Arbitrator" shall have the meaning ascribed to such term in
Section 3.4(b).
"Average Market Price" shall mean $35.142, which represents the
average of the daily closing sale price per share of SEACOR Common
Stock on the NASDAQ Stock Market for the 60 consecutive calendar days
that ended on April 16, 1996, the second trading day prior to the date
of signing of a letter of intent with respect to the transactions
contemplated hereby.
"Benefit Arrangement" means any employment, severance or similar
contract, or any other contract, plan, policy or arrangement (whether
or not written) providing for compensation, bonus, profit-sharing,
stock option or other stock related rights or other forms of incentive
or deferred compensation, vacation benefits, insurance coverage
(including any self-insured arrangement), health or medical benefits,
disability benefits, severance benefits and post-employment or
retirement benefits (including compensation, pension,
<PAGE>
health, medical or life insurance benefits), other than the Employee
Plans, that (A) is maintained, administered or contributed to by the
employer or the employer has any obligation or liability (contingent
or otherwise) and (B) covers any employee or former employee or
director of the employer.
"Business Day" shall mean a day other than a Saturday, a Sunday
or a day on which national banks or the NASDAQ Stock Market is closed.
"Certificate of Merger" shall have the meaning ascribed to such
term in Section 2.1(b).
"Closing" shall have the meaning ascribed to such term in Section
2.1(a).
"Closing Balance Sheet" shall have the meaning ascribed to such
term in Section 3.4(a).
"Closing Date" shall have the meaning ascribed to such term in
Section 2.1(a).
"Code" shall have the meaning ascribed to such term in the
premises to this Agreement.
"Companies" shall mean McCall Enterprises, Inc., McCall's Boat
Rentals, Inc., Gulf Marine Transportation, Inc., Carroll McCall, Inc.,
McCall Marine Services, Inc., Cameron Boat Rentals, Inc., Gladys
McCall, Inc., Cameron Crews, Inc., Philip Alan McCall, Inc., N.F.
McCall Crews, Inc., McCall Crewboats, L.L.C. and McCall Support
Vessels, Inc.
"Contract" means any contract, charter, agreement, lease,
indenture, note, bond, instrument, lien, conditional sales contract,
mortgage, license, franchise, insurance policy, commitment or other
binding understanding or arrangement, whether written or oral.
"DOJ" shall have the meaning ascribed to such term in Section
6.1(a).
"Effective Date" shall have the meaning ascribed to such term in
Section 2.1(b).
"Effective Time" shall have the meaning ascribed to such term in
Section 2.1(b).
"Employee Plan" means an employee benefit plan or arrangement as
defined in Section 3(3) of ERISA, that is maintained, administered or
contributed to by the employer or
<PAGE>
the employer has any obligation or liability (contingent or otherwise)
and covers any employee or former employee of the employer.
"Environmental Laws" means all federal, state, local and foreign
laws, common law duties, ordinances, codes, regulations and other
legally binding obligations relating to pollution, the protection of
the environment, human health and safety or natural resources,
including, without limitation, all such laws governing the operation
of business, each McCall Vessel, the generation, use, collection,
treatment, storage, transportation, recovery, removal, discharge or
disposal of Hazardous Substances or wastes and all such laws imposing
record-keeping, maintenance, testing, inspection, notification and
reporting requirements with respect to Hazardous Substances.
"Environmental Permits" shall have the meaning ascribed to such
term in Section 4.21(a).
"ERISA" means the Employee Retirement Income Security Act of
1974, as amended, and the applicable regulations promulgated
thereunder.
"Escrow Agreement" shall have the meaning ascribed to such term
in Section 7.2(j).
"Estimated Adjusted Net Assets" shall mean $252,000.
"Exchange Act" shall mean the Securities Exchange Act of 1934, as
amended.
"Final Adjusted Net Assets" shall have the meaning ascribed to
such term in Section 3.4(b).
"Fractional Payment" shall have the meaning ascribed to such term
in Section 3.1(d).
"FTC" shall have the meaning ascribed to such term in Section
6.1(a).
"GAAP" shall mean generally accepted accounting principles in the
United States of America as in effect from time to time set forth in
the opinions and pronouncements of the Accounting Principles Board and
the American Institute of Certified Public Accountants and the
statements and pronouncements of the Financial Accounting Standards
Board, or in such other statements by such other entity as may be in
general use by significant segments of the accounting profession,
which are applicable to the circumstances as of the date of
determination.
<PAGE>
"Hazardous Substances" means any and all wastes, materials or
substances defined, regulated or classified as "hazardous substances,"
"hazardous wastes," "hazardous constituents" or words of similar
meaning in (i) the Comprehensive Environmental Response, Compensation
and Liability Act of 1980, 42 U.S.C. Sections 9601 et seq., as amended by
-- ---
the Superfund Amendments and Reauthorization Act of 1986, and any
amendments thereto and regulations thereunder; (ii) the Resource
Conservation and Recovery Act of 1976, 42 U.S.C. Sections 6901 et seq., as
-- ---
amended by the Hazardous and Solid Waste Amendments of 1984, and any
amendments thereto and regulations thereunder; (iii) the Oil Pollution
Act of 1990, 33 U.S.C. Sections 2701 et seq., and any amendments thereto
-- ---
and regulations thereunder; or (iv) any other Environmental Law.
"HSR Act" shall mean the Hart-Scott-Rodino Antitrust Improvements
Act of 1976, as amended.
"HSR Reports" shall mean the premerger notification and report
form to be filed under the HSR Act.
"Indemnification Agreement" shall have the meaning ascribed to
such term in Section 7.2(j).
"Indemnified Person" shall have the meaning ascribed to such term
in Section 8.1(a).
"Intellectual Property Right" means any trademark, service mark,
trade name, patent, trade secret, copyright, know-how or other type of
intellectual property right (including any registrations or
applications for registration of any of the foregoing).
"Investment and Registration Rights Agreement" shall have the
meaning ascribed to such term in Section 3.5(a).
"IRS" shall have the meaning ascribed to such term in Section
4.17(a).
"Knowledge of McCall" shall mean the actual knowledge of Norman
F. McCall, Joyce C. McCall, Joseph N. McCall, William Johnston, or
Stephanie Richard without any obligation to conduct any inquiry
outside the ordinary course of business.
"Knowledge of SEACOR" shall mean the actual knowledge of Charles
Fabrikant, Randall Blank or Milton R. Rose (all being executive
officers of SEACOR) without any obligation to conduct any inquiry
outside the ordinary course of business.
<PAGE>
"LBCL" shall mean the Business Corporation Law of the State of
Louisiana, as amended.
"Letter of Employment" shall have the meaning ascribed to such
term in Section 7.2(k).
"Liens" shall mean pledges, liens, encumbrances, rights in rem,
defects, leases, licenses, equities, conditional sales contracts,
charges, claims, encumbrances, security interests, easements,
restrictions, chattel mortgages, mortgages or deeds of trust, of any
kind or nature whatsoever.
"Material Adverse Effect" shall mean, with respect to any party,
a material adverse effect on the financial condition, results of
operations, business or prospects of such party.
"Material Contract" shall have the meaning ascribed to such term
in Section 5.8.
"McCall Audited Financial Statements" shall mean the audited
combined balance sheet and related combined statements of income,
stockholders' equity and cash flows, and the related notes thereto, of
the Companies as of and for the years ended December 31, 1994 and
1995.
"McCall Common Stock" shall mean shares of common stock, no par
value per share, of McCall.
"McCall Financial Statements" shall mean the McCall Audited
Financial Statements and the McCall Interim Financial Statements,
collectively.
"McCall Group" shall mean McCall and SEAMAC LLC.
"McCall Interim Financial Statements" shall mean the unaudited
combined balance sheet, and the related unaudited combined statements
of income and cash flows, of the Companies as of and for the three-
month period ended March 31, 1996.
"McCall Latest Balance Sheet" shall mean the combined balance
sheet of the Companies included in the McCall Interim Financial
Statements.
"McCall Representative" shall mean Norman F. McCall, who has been
appointed by the Board of Directors of McCall and by the unanimous
written consent of the McCall Stockholders as their representative for
purposes of Section 3.4 hereof or any successor as
<PAGE>
McCall Representative appointed in accordance with the terms of the
Indemnification Agreement.
"McCall Stockholders" shall have the meaning ascribed to such
term in Section 3.5(a).
"McCall Vessels" shall have the meaning ascribed to such term in
Section 4.13.
"Merger" shall have the meaning ascribed to such term in the
premises to this Agreement.
"Merger Consideration" shall have the meaning ascribed to such
term in Section 3.1(a).
"Multiemployer Plan" means a plan or arrangement as defined in
Section 4001(a)(3) and 3(37) of ERISA.
"Permitted Liens" shall mean any mechanic's, worker's,
materialmen's, maritime or other liens arising as a matter of law in
the ordinary course of business consistent with past practice.
"Person" shall mean an individual, firm, corporation, general or
limited partnership, limited liability company, limited liability
partnership, joint venture, trust, governmental authority or body,
association, unincorporated organization or other entity.
"Pre-Closing Periods" shall mean all tax periods ending at or
before the Effective Time and, with respect to any tax period that
includes but does not end at the Effective Time, the portion of such
period that ends at and includes the Effective Time.
"Registration Statement" shall mean the registration statement on
Form S-3 to be filed by SEACOR with the SEC for the purpose, among
other things, of registering the SEACOR Common Stock which will be
issued to the holders of McCall Capital Stock following consummation
of the Merger.
"Returns" shall mean all returns, reports, estimates,
declarations, information return, statement or other similar documents
relating to Taxes, including any schedule or attachment thereto, and
including any amendment thereof.
<PAGE>
"SEACOR Affiliated Group" shall mean SEACOR, Sub and the other
subsidiaries of SEACOR.
"SEACOR Audited Financial Statements" shall mean the audited
consolidated balance sheets, and the related consolidated statements
of earnings, stockholders' equity and cash flows, and the related
notes thereto, of SEACOR and its subsidiaries as of and for the years
ended December 31, 1994 and 1995.
"SEACOR Common Stock" shall mean shares of common stock, $.01 par
value per share, of SEACOR.
"SEACOR Financial Statements" shall mean the SEACOR Audited
Financial Statements and the SEACOR Interim Financial Statements.
"SEACOR Interim Financial Statements" shall mean the unaudited
consolidated balance sheet, and the related consolidated unaudited
statements of earnings and cash flows, of SEACOR and its subsidiaries
as of and for the three month period ended March 31, 1996.
"SEACOR Latest Balance Sheet" shall mean the consolidated balance
sheet included in the SEACOR Interim Financial Statements.
"SEACOR SEC Documents" shall have the meaning ascribed to such
term in Section 5.6(a).
"SEC" shall mean the Securities and Exchange Commission of the
United States.
"Securities Act" shall mean the Securities Act of 1933, as
amended.
"Surviving Corporation" shall mean McCall following the Effective
Time.
"Taxes" means all taxes, charges, fees, imposts, levies or other
assessments, including, without limitation, all net income, gross
receipts, sales, use, ad valorem, value added, transfer, franchise,
profits, inventory, capital stock, license, withholding, payroll,
employment, social security, unemployment, excise, severance, stamp,
occupation, property taxes, customs duties, fees, assessments and
charges of any kind whatsoever, together with any interest and any
penalties, additions to tax or additional amounts imposed by any
taxing authority (domestic or foreign) and any interest or penalties
imposed with respect to the filing, obligation to file or failure to
file any Return, and shall include any transferee liability in respect
of Taxes.
<PAGE>
"Termination Date" shall have the meaning ascribed to such term
in Section 9.1(c).
"Total Merger Consideration" shall have the meaning ascribed to
such term in Section 3.1(a).
"Undisclosed Liabilities" shall have the meaning ascribed to such
term in Section 4.7.
"Vessel Assets" shall mean (i) the 0 vessels listed on Exhibit A
hereto, all spare parts, stores and supplies, fuel and lubes (whether
onboard or ashore), and all investments by McCall in the Companies,
(ii) the proceeds of the sale of any such vessel sold by McCall
between the date hereof and the Closing Date and (iii) the proceeds
(including any amount recoverable from insurance or other sources)
from total loss, nontotal loss or constructive loss of any such
vessel between the date hereof and the Closing Date.
<PAGE>
ARTICLE 2.
THE CLOSING; THE MERGER; EFFECTS OF THE MERGER
Section 2.1. Closing. (a) The closing of the transactions
-------
contemplated herein (the "Closing") will take place, assuming
satisfaction or waiver of each of the conditions set forth in Article
7 hereof, at the offices of Stockwell, Sievert, Viccellio, Clements &
Shaddock at 1 Lakeside Plaza, 4th Floor, Lake Charles, Louisiana, at
10:00 A.M. (Louisiana Time) on a date to be mutually agreed upon
between the parties, which shall be no later than the third Business
Day after satisfaction of the latest to occur of the conditions set
forth in Article 7 (or waiver thereof by the party entitled to waive
the same), or if no date has been agreed to, on any date specified by
one party to the others upon five days' notice following satisfaction
(or waiver) of such conditions (the date of the Closing being referred
to herein as the "Closing Date").
(b) At the Closing, the parties shall (i) deliver the
documents, certificates and opinions required to be delivered by
Article 7 hereof, (ii) provide proof or indication of the satisfaction
or waiver of each of the conditions set forth in Article 7 hereof,
(iii) cause the appropriate officers of McCall to execute and deliver
the Certificate of Merger (the "Certificate of Merger") in
substantially the form attached hereto as Exhibit B and (iv)
consummate the Merger by causing to be filed the properly executed
Certificate of Merger with the Secretary of State of the State of
Louisiana in accordance with the provisions of the LBCL. The Merger
shall be effective upon the filing of the Certificate of Merger with
the Secretary of State of Louisiana (such date and time being
hereinafter referred to respectively as the "Effective Date" and the
"Effective Time").
Section 2.2. The Merger. Subject to the terms and conditions
----------
of this Agreement, Sub shall be merged with and into McCall at the
Effective Time. Following the Merger, Sub shall cease to exist and
McCall shall be the Surviving Corporation and shall succeed to and
assume all the rights and obligations of Sub in accordance with the
LBCL.
Section 2.3 Effects of the Merger; Certificate and By-laws;
-----------------------------------------------
Directors and Officers. (a) The Merger shall have the effects
----------------------
specified in Section 115 of the LBCL.
(b) The Certificate of Incorporation of McCall, as amended
and restated and attached to the Certificate of Merger, shall be the
Certificate of Incorporation of the Surviving Corporation thereafter
unless and until amended in accordance with its terms and as provided
by law.
<PAGE>
(c) The By-laws of Sub as in effect at the Effective Time
shall be the By-laws of the Surviving Corporation thereafter unless
and until amended in accordance with its terms, the terms of the
Certificate of Incorporation of the Surviving Corporation and as
provided by law.
(d) The directors and officers of Sub at the Effective Time
shall be the directors and officers of the Surviving Corporation
thereafter, each to hold a directorship or office in accordance with
the Certificate of Incorporation and By-laws of the Surviving
Corporation until their respective successors are duly elected and
qualified.
ARTICLE 3.
MERGER CONSIDERATION; CONVERSION OF SHARES
Section 3.1. Conversion of Shares. (a) At the Effective Time,
--------------------
by virtue of the Merger and without any further action on the part of
SEACOR, Sub, McCall, the Surviving Corporation or any of the
respective stockholders thereof: (i) each share of common stock of
Sub issued and outstanding at the Effective Time shall be converted
into one share of the common stock, no par value per share, of the
Surviving Corporation; (ii) each issued share of McCall Common Stock
that is held in treasury by McCall or held by any subsidiary of McCall
shall be cancelled and no capital stock of SEACOR or other
consideration shall be delivered in exchange therefor; and (iii) each
share of McCall Common Stock issued and outstanding at the Effective
Time shall be converted into the right to receive, and shall be
exchanged for, such number of fully paid and nonassessable shares of
SEACOR Common Stock as shall be equal to the quotient obtained by
dividing (A) the Total Merger Consideration (as hereinafter defined)
by (B) 100, which is represented by McCall to be the number of shares
--
of McCall Common Stock outstanding on the date hereof (the "Merger
Consideration"). For purposes hereof, the "Total Merger
Consideration" shall mean a number of shares of SEACOR Common Stock
equal to the quotient obtained by dividing (1) the sum of $252,000
plus the amount, if any, by which the Final Adjusted Net Assets
exceeds the Estimated Adjusted Net Assets or less the amount, if any,
by which the Estimated Adjusted Net Assets exceeds the Final Adjusted
Net Assets, by (2) the Average Market Price.
--
(b) Upon conversion of the shares of McCall Common Stock
into the right to receive the Merger Consideration in the manner
described in paragraph 3.1(a)(iii), each record holder of issued and
outstanding McCall Common Stock immediately prior to the Effective
Time shall have the right to receive a certificate representing such
whole number of shares of SEACOR Common Stock equal to the product of
(A) the Merger Consideration and
<PAGE>
(B) the number of issued and outstanding shares of McCall Common Stock
of which such Person is the record holder immediately prior to the
Effective Time.
(c) In lieu of the issuance of fractional shares of SEACOR
Common Stock, each holder of record of issued and outstanding shares
of McCall Common Stock as of the Effective Time shall be entitled to
receive a cash payment (without interest) (each a "Fractional Payment"
and, collectively, the "Fractional Payments") equal to the fair market
value of a fraction of a share of SEACOR Common Stock to which such
holder would be entitled to but for this provision. For purposes of
calculating such cash payment, the fair market value of a fraction of
a share of SEACOR Common Stock shall be such fraction multiplied by
the Average Market Price.
Section 3.2. Exchange of Stock Certificates; Record Date. (a)
-------------------------------------------
On or after the Effective Date, each holder of record of a certificate
or certificates that immediately prior to the Effective Time
represented issued and outstanding shares of McCall Common Stock whose
shares were converted into the Merger Consideration and, where
applicable, a right to Fractional Payments pursuant to Section 3.1
shall surrender such certificates for cancellation to SEACOR, together
with a letter of transmittal in the form of Exhibit C hereto, duly
executed. Such letter of transmittal shall require each former record
holder of a certificate or certificates that represented McCall Common
Stock to specify whether such person is a citizen of the United
States, within the meaning of Section 2 of the Shipping Act, 1916, as
amended, and as required by the Merchant Marine Act of 1936, as
amended, and the Merchant Marine Act of 1920, as amended, and the
regulations thereunder. In exchange therefor, SEACOR shall issue
pursuant to Section 3.2(b) to each such holder who has appropriately
confirmed that he is a United States citizen a "United States Citizen"
certificate, and to each other holder, a "Non-Citizen" certificate,
representing in each case the number of whole shares of SEACOR Common
Stock that such holder has the right to receive pursuant to the
provisions of Section 3.1(b), and pay such holder any cash payment in
lieu of any fractional share in accordance with Section 3.1(c), and
the certificates representing shares of McCall Common Stock so
surrendered shall forthwith be cancelled.
(b) As soon as practicable after the determination of Final
Adjusted Net Assets, SEACOR shall deliver the Merger Consideration and
the Fractional Payments required under this Agreement to such Persons
who were record owners of the McCall Common Stock as of the close of
business on the Closing Date.
Section 3.3. No Further Rights in McCall Common Stock. As of
----------------------------------------
the Effective Time, all shares of McCall Common Stock shall no longer
be outstanding and shall automatically be cancelled and shall cease to
exist, and each holder of a certificate
<PAGE>
representing shares of McCall Common Stock as of the Effective Time
shall cease to have any rights with respect thereto, except the right
to receive the Merger Consideration and the Fractional Payments upon
surrender of such certificate as provided in Section 3.2.
Section 3.4. Determination of Final Adjusted Net Assets. (a)
------------------------------------------
Within 60 days after the Closing Date, SEACOR shall prepare in
accordance with GAAP and deliver to the McCall Representative, a
consolidated closing date balance sheet for McCall and its
subsidiaries (including SEAMAC, L.L.C.) as of the Closing Date (the
"Closing Balance Sheet"), which shall be accompanied by a computation
of the Adjusted Net Assets based thereon.
(b) The McCall Representative shall have a period of 15
days to review the Closing Balance Sheet and the accompanying calcu-
lation of the Adjusted Net Assets following delivery thereof by
SEACOR. During such period, SEACOR shall afford the McCall
Representative access to any of its books, records and work papers
necessary to enable the McCall Representative to review the Closing
Balance Sheet and the accompanying calculation of the Adjusted Net
Assets. The McCall Representative may dispute any amounts reflected
in the Adjusted Net Assets by giving notice in writing to SEACOR
specifying each of the disputed items and setting forth in reasonable
detail the basis for such dispute. Failure by the McCall
Representative to dispute the amounts reflected in the Adjusted Net
Assets within 15 days of delivery of the Closing Balance Sheet by
SEACOR shall be deemed an acceptance thereof by the McCall
Representative. If, within 30 days after delivery by the McCall
Representative to SEACOR of any notice of dispute in accordance with
this Section 3.4(b), the McCall Representative and SEACOR are unable
to resolve all of such disputed items, then any remaining items in
dispute shall be submitted to an independent nationally recognized
accounting firm selected in writing by SEACOR and the McCall
Representative or, if SEACOR and the McCall Representative fail or
refuse to select such a firm within ten Business Days after request
therefor by SEACOR or the McCall Representative, such an independent
nationally recognized accounting firm shall be selected in accordance
with the rules of the American Arbitration Association (the "Arbi-
trator"). The Arbitrator shall determine the remaining disputed items
and report to SEACOR and the McCall Representative with respect to
such items. The Arbitrator's decision shall be final, conclusive and
binding on all parties. The fees and disbursements of the Arbitrator
shall be borne equally by the McCall Stockholders and SEACOR. The
Adjusted Net Assets if undisputed or deemed undisputed or as
determined by the mutual agreement of SEACOR and the McCall
Representative or by the Arbitrator in accordance with the procedure
outlined above shall be the "Final Adjusted Net Assets."
<PAGE>
Section 3.5. Registration Rights Agreement; Restrictive
------------------------------------------
Endorsement. (a) The issuance of the SEACOR Common Stock to the
-----------
McCall Stockholders (as defined below) pursuant to this Agreement will
not be registered under the Securities Act, or any state securities
laws, in reliance upon certain exemptions from registration contained
therein and, therefore, will be subject to restrictions on transfer.
Pursuant to the terms and conditions of the Investment and
Registration Rights Agreement, in substantially the form attached
hereto as Exhibit D (the "Investment and Registration Rights
Agreement"), the McCall Stockholders shall have certain rights to
require the registration of the resale by the McCall Stockholders of
their SEACOR Common Stock. The "McCall Stockholders" are the record
and beneficial owners of the numbers of shares of capital stock of
McCall as are set forth opposite their respective names on Schedule
3.5(a) hereto.
(b) Each certificate representing the shares of SEACOR
Common Stock to be issued to the McCall Stockholders pursuant to this
Agreement shall be stamped with a legend in substantially the
following form:
"The Shares represented by this certificate have not been
registered under the Securities Act of 1933, as amended, or any
state securities law, and may not be transferred, sold or
otherwise disposed of in the absence of such registration or an
exemption therefrom. Such Shares may be transferred only in
compliance with the conditions specified in the Investment and
Registration Rights Agreement, dated as of May 31, 1996, between
the Issuer and the other entities and individuals party thereto,
a complete and correct copy of which is available for inspection
at the principal office of the Issuer and will be furnished to
the Holder hereof upon written request and without charge."
<PAGE>
ARTICLE 4.
REPRESENTATIONS AND WARRANTIES OF MCCALL
McCall represents and warrants to SEACOR and Sub as follows:
Section 4.1. Organization and Citizenship. (a) Each member of
----------------------------
the McCall Group is a corporation duly organized, validly existing and
in good standing under the laws of the state of its incorporation and
has all corporate power and authority to carry on its business as now
being conducted and to own, lease and operate its properties. Each
member of the McCall Group is duly qualified to do business and is in
good standing in each state and foreign jurisdiction in which the
character or location of the properties owned or leased by it or the
nature of the business conducted by it makes such qualification
necessary, except where the failure to be so qualified or in good
standing would not have a Material Adverse Effect on the McCall Group.
(b) Each member of the McCall Group and its respective
stockholders are and at all times have been citizens of the United
States within the meaning of Section 2 of the Shipping Act, 1916, as
amended, for the purposes of owning and operating vessels in the U.S.
coastwise trade. None of the McCall Stockholders is a "foreign
person" within the meaning of Section 1445 of the Code.
Section 4.2. Affiliated Entities. (a) Schedule 4.2(a) lists
-------------------
each member of the McCall Group. All shares of the outstanding
capital stock or equity interests in each member of the McCall Group
have been duly authorized and validly issued and are fully paid and
nonassessable and are not subject to preemptive rights and, except as
set forth in Schedule 4.2(a), are owned by McCall, by another member
of the McCall Group or by McCall and another member of the McCall
Group, free and clear of all Liens.
(b) Except as listed on Schedule 4.2(b), McCall does not,
directly or indirectly, own of record or beneficially, or have the
right or obligation to acquire, any outstanding securities or other
interest in any Person.
Section 4.3. Capitalization. (a) The authorized capital stock
--------------
of McCall consists exclusively of 1,000 shares of common stock, no par
value per share, of which 100 shares were issued and outstanding and
no shares were held in its treasury as of the date hereof. All issued
and outstanding shares of capital stock of McCall are validly issued,
fully paid, non-assessable and free of preemptive or similar rights.
The McCall Stockholders are the record and beneficial owners of such
number of shares of capital stock of McCall set forth opposite their
respective names on Schedule 3.5(a) which shares represent all of the
issued
<PAGE>
and outstanding shares of capital stock of McCall. There is no
existing subscription, option, warrant, call, right, commitment or
other agreement to which McCall is a party requiring, and there are no
derivative securities of McCall outstanding which upon conversion,
exercise or exchange would require, directly or indirectly, the
issuance of any additional shares of McCall capital stock or other
securities convertible, exchangeable or exercisable into or for shares
of McCall capital stock or any other equity security of McCall, and
there are no outstanding contractual obligations of McCall to
repurchase, redeem or otherwise acquire any outstanding share of
McCall capital stock.
Section 4.4. Authority; Enforceable Agreement. (a) McCall has
--------------------------------
the requisite corporate power and authority to enter into this
Agreement and to consummate the transactions contemplated hereby. The
execution and delivery of this Agreement by McCall and the
consummation by McCall of the transactions contemplated hereby have
been duly authorized by all necessary corporate action on the part of
McCall, including the approval of the Merger and this Agreement by its
Board of Directors and the McCall Stockholders.
(b) This Agreement has been duly executed and delivered by
McCall and (assuming due execution and delivery by the other parties
hereto) constitutes a valid and binding obligation of McCall,
enforceable against McCall in accordance with its terms, except as
such enforceability may be limited by bankruptcy, insolvency,
reorganization or similar laws affecting creditors' rights generally.
The other agreements entered, or to be entered, into by McCall in
connection with this Agreement have been, or will be, duly executed
and delivered by McCall and (assuming due execution and delivery by
the other parties thereto) constitute, or will constitute, valid
and binding obligations of McCall, enforceable against McCall in
accordance with their terms, except as such enforceability may be
limited by bankruptcy, insolvency, reorganization or similar laws
affecting creditors' rights generally.
Section 4.5. No Conflicts or Consents. (a) Except as set
------------------------
forth on Schedule 4.5(a), neither the execution, delivery nor
performance of this Agreement by McCall nor the consummation of the
transactions contemplated hereby will (i) violate, conflict with, or
result in a breach of any provision of, constitute a default (or an
event that, with notice or lapse of time or both, would constitute a
default) under, result in the termination of, or accelerate the
performance required by, or result in the creation of any adverse
claim against any of the properties or assets of any member of the
McCall Group under (A) the certificate of incorporation, by-laws or
any other organizational documents of any member of the McCall Group,
or (B) any note, bond, mortgage, indenture, deed of trust, lease,
license, agreement or other instrument or obligation to which any
member of the McCall Group is a party, or by which any member of the
McCall Group or any of its assets are bound, or (ii) subject to
<PAGE>
obtaining clearance under the HSR Act, violate any order, writ,
injunction, decree, judgment, statute, rule or regulation of any
governmental body to which any member of the McCall Group is subject
or by which any member of the McCall Group or any of its assets are
bound.
(b) Except as set forth on Schedule 4.5(b), no consent,
approval, order, permit or authorization of, or registration,
declaration or filing with, any Person or of any government or any
agency or political subdivision thereof is required for the execution,
delivery and performance by McCall of this Agreement and the covenants
and transactions contemplated hereby or for the execution, delivery
and performance by McCall of any other agreements entered, or to be
entered, into by McCall in connection with this Agreement, except for
(i) the filing of the HSR Report by McCall under the HSR Act and the
early termination or expiration of all applicable waiting periods
thereunder, and (ii) the filing of the Certificate of Merger as
provided in Section 2.1(b) hereof.
Section 4.6. Corporate Documents. McCall has delivered to
-------------------
SEACOR true and complete copies of its certificate of incorporation
and by-laws, as amended or restated through the date of this
Agreement, and the organizational documents governing each member of
the McCall Group listed on Schedule 4.2(a). The minute books of each
member of the McCall Group contain complete and accurate records of
all corporate actions of the equity owners of the various entities and
of the boards of directors or other governing bodies, including
committees of such boards or governing bodies. The stock transfer
records of McCall contain complete and accurate records of all
issuances and redemptions of capital stock by McCall.
Section 4.7. Financial Statements; Liabilities. The McCall
---------------------------------
Financial Statements, to the extent they include information with
respect to the McCall Group, have been prepared in accordance with
GAAP applied on a basis consistent with prior periods and present
fairly the financial position of the McCall Group as at the dates of
the balance sheet included therein and the results of operations and
cash flows for the periods then ended, except, in the case of the
McCall Interim Financial Statements, as permitted by Rule 10-01 of
Regulation S-X of the SEC. The McCall Interim Financial Statements
reflect all adjustments (consisting only of normal, recurring
adjustments) that are necessary for a fair statement of the results
for the interim periods presented therein. Except as set forth on
Schedule 4.7, no member of the McCall Group has, nor are any of their
respective assets subject to, any liability, commitment, debt or
obligation (of any kind whatsoever whether absolute or contingent,
accrued, fixed, known, unknown, matured or unmatured) ("Undisclosed
Liabilities"), except (i) as and to the extent reflected on the McCall
Latest Balance Sheet, (ii) as may have been incurred or may have
arisen since the date of the McCall Latest Balance Sheet in the
<PAGE>
ordinary course of business and that are not material individually or
in the aggregate or (iii) as permitted by this Agreement.
Section 4.8. Accounts Receivable. All of the accounts
-------------------
receivable reflected on the McCall Latest Balance Sheet or created
thereafter, with respect to any member of the McCall Group have arisen
only from bona fide transactions in the ordinary course of business,
represent valid obligations owing to McCall or another member of the
McCall Group and have been accrued and recorded in accordance with
GAAP. Except as set forth on Schedule 4.8, such accounts receivable
either have been collected in full or will be collectible in full when
due, without any counterclaims, set-offs or other defenses and without
provision for any allowance for uncollectible accounts other than such
allowance as appears on the McCall Latest Balance Sheet.
Section 4.9. Absence of Certain Changes or Events. Except as
------------------------------------
set forth on Schedule 4.9 or as contemplated by this Agreement, since
the date of the McCall Latest Balance Sheet, each member of the McCall
Group has conducted its business only in the ordinary course, and has
not:
(a) amended its certificate of incorporation, by-laws or
similar organizational documents;
(b) incurred any liability or obligation of any nature
(whether absolute or contingent, accrued, fixed, known, unknown,
matured or unmatured), except in the ordinary course of business;
(c) suffered or permitted any of its assets to be or remain
subject to any lien other than those disclosed on Schedule 4.11(a) or
4.13(a) and that collateralize indebtedness reflected on the McCall
Latest Balance Sheet and Liens for Taxes accrued but not yet payable
and Permitted Liens;
(d) merged or consolidated with another Person or acquired
or agreed to acquire any Person or sold, leased, transferred or
otherwise disposed of any assets except for fair value in the ordinary
course of business; provided that no McCall Vessels shall have been
disposed of without the consent of SEACOR (which consent shall not be
unreasonably withheld);
(e) made any capital expenditure or commitment therefor,
except in the ordinary course of business, provided that any
acquisitions of vessels (except those under construction and referred
to in the definition of Adjusted Net Assets), or acquisitions of, or
<PAGE>
improvements to, real property, shall not be considered to be in the
ordinary course of business;
(f) declared or paid any dividend or made any distribution
with respect to any of its equity interests, or redeemed, purchased or
otherwise acquired any of its equity interests, or issued, sold or
granted any equity interests or any option, warrant or other right to
purchase or acquire any such interest other than payments within the
McCall Group by entities other than McCall as part of its cash
management program that may be characterized as dividends or
distributions;
(g) adopted any employee benefit plan or made any change in
any existing employee benefit plans or made any bonus or profit
sharing distribution or payment of any kind;
(h) increased indebtedness for borrowed money, or made any
loan to any Person, other than through the issuance of standby or
performance letters of credit issued in the ordinary course of
business;
(i) made any change affecting any banking, safe deposit or
power of attorney arrangements;
(j) written off as uncollectible any notes or accounts
receivable, except for notes or accounts receivable in the ordinary
course of business charged to applicable allowances reflected in the
McCall Latest Balance Sheet, and none of which individually or in the
aggregate is material to the McCall Group;
(k) entered into or amended any employment, severance or
similar agreement or arrangement with any director or employee, or
granted any increase in the rate of wages, salaries, bonuses, employee
advances or other compensation or benefits of any executive officer or
other employee, other than any such increase that is both in the
ordinary course of business consistent with past practice and in an
amount such that, after giving effect thereto, aggregate employee
compensation expense (considered on an annualized basis) does not
exceed 105% of the aggregate employee compensation expense for
McCall's fiscal year ended December 31, 1995.
(l) cancelled, waived, released or otherwise compromised
any debt, claim or right, except as permitted under clause (j);
(m) made any change in any method of accounting principle
or practice;
<PAGE>
(n) suffered the termination, suspension or revocation of
any license or permit necessary for the operation of its business or
any of the McCall Vessels;
(o) entered into any transaction other than on an arm's-
length basis;
(p) suffered any damage, destruction or loss (whether or
not covered by insurance) which has had or could reasonably be
expected to have a Material Adverse Effect on the McCall Group; or
(q) agreed, whether or not in writing, to do any of the
foregoing.
Section 4.10. Contracts. (a) Except as set forth on Schedule
---------
4.10(a), no member of the McCall Group is a party to: (i) any
collective bargaining agreement; (ii) any Contract with any employee;
(iii) any Contract, containing any covenant limiting its freedom to
engage in any line of business or to compete with any Person; (iv) any
Contract containing an obligation to guarantee or indemnify any other
Person; (v) any joint venture, partnership or similar Contract
involving a sharing of profits or expenses; (vi) any Contract under
which any member of the McCall Group is the licensee or licensor of
patents, copyrights, trademarks, applications for any of the foregoing
or any other intellectual property rights of any nature; (vii) any
Contract between any member of the McCall Group and any of their
respective Affiliates (other than other members of the McCall Group);
(viii) any Contract under which any member of the McCall Group has
borrowed any money or issued any note, bond or other evidence of
indebtedness for borrowed money or guaranteed indebtedness for money
borrowed by others; (ix) any hedge, swap, exchange, futures or similar
Contracts; or (x) any Contract that has had or may have a Material
Adverse Effect on the McCall Group.
(b) Schedule 4.10(b) contains a list and brief description
(including the names of the parties and the date and nature of the
agreement) of each material Contract to which any member of the McCall
Group is a party. There is no existing breach by any member of the
McCall Group of any of its material Contracts and there has not
occurred any event that with the lapse of time or the giving of notice
or both would constitute such a breach. There is not pending nor, to
the Knowledge of McCall, threatened, any claim that any member of the
McCall Group, has breached any of the terms or conditions of any of
its material Contracts and, to the Knowledge of McCall, no other
parties to such Contracts have breached any of their terms or
conditions. SEACOR has been provided with a complete and accurate
copy of each Contract listed on Schedule 4.10(b).
Section 4.11. Properties and Leases other than Vessels. (a)
----------------------------------------
With respect to assets other than vessels and except for assets
disposed of for adequate consideration in the ordinary
<PAGE>
course of business and which are not material to the operation of its
business, a member of the McCall Group has good and valid title to all
real property and all other properties and assets accounted for as
belonging to a member of the McCall Group reflected in the McCall
Latest Balance Sheet free and clear of all Liens, except for (i) Liens
that secure indebtedness that is properly reflected in the McCall
Latest Balance Sheet; (ii) Liens for Taxes accrued but not yet
payable; (iii) Permitted Liens, provided that the obligations
collateralized by such Permitted Liens are not delinquent or are being
contested in good faith; (iv) such imperfections of title and
encumbrances, if any, as do not in the aggregate materially detract
from the value or materially interfere with the present use of any
such properties or assets or the potential sale of any such properties
and assets and (v) capital leases and leases of such properties, if
any, to third parties for fair and adequate consideration. Schedule
4.11(a) contains a list of (i) all Liens (other than Permitted Liens
and Liens for Taxes accrued but not yet payable) on property of the
McCall Group other than vessels collateralizing indebtedness on the
McCall Latest Balance Sheet, (ii) any guaranty or other credit support
arrangement pursuant to which any member of the McCall Group has
guaranteed an obligation of any other member of the McCall Group where
assets other than vessels are the collateral and (iii) certain items
of personal property not owned by any member of the McCall Group. A
member of the McCall Group owns, or has valid leasehold interests in,
all properties and assets, other than vessels, used in the conduct of
its business.
(b) With respect to each lease of real property and
material amount of personal property (other than vessels) to which a
member of the McCall Group is a party, (i) such member of the McCall
Group has a valid leasehold interest in such real property or personal
property; (ii) such lease is in full force and effect in accordance
with its terms; (iii) all rents and other monetary amounts that have
become due and payable thereunder have been paid in full; (iv) no
waiver, indulgence or postponement of the obligations thereunder has
been granted by the other party thereto; (v) there exists no material
default (or an event that, with notice or lapse of time or both would
constitute a material default) under such lease; (vi) such member of
the McCall Group has not violated any of the terms or conditions under
any such lease; (vii) to the Knowledge of McCall, there has been no
(A) condition or covenant to be observed or performed by any other
party under any such lease that has not been fully observed and
performed and (B) in the case of each prime lease concerning demised
premises subleased to any member of the McCall Group, condition or
covenant to be observed or performed by each party thereto that has
not been fully observed and performed and there does not exist any
event of default or event, occurrence, condition or act that, with the
giving of notice, the lapse of time or the happening of any further
event or condition, would become a default under any such prime lease;
and (viii) the transactions described in this Agreement will not
constitute a default under or cause for termination or modification of
such lease.
<PAGE>
(c) Except as disclosed on Schedule 4.11(c), the rent
charged to any member of the McCall Group under any lease (other than
with respect to vessels) between any member of the McCall Group and
any of its Affiliates (other than another member of the McCall Group)
is at or below the market rate and any such lease contains such other
terms and conditions that are no less favorable to McCall than would
be obtainable in an arms-length transaction with an independent third
party lessor.
(d) Schedule 4.11(d) contains a list of all real property
owned by members of the McCall Group and a list of all leases, other
than with respect to vessels, to which the members of the McCall Group
are parties, which list includes a reasonable description of the
location and approximate square footage of each property, whether
owned or leased, and the term of each such lease, including all
renewal options. Complete and correct copies of each lease has been
delivered to SEACOR.
Section 4.12. Condition of McCall's Assets Other than Vessels.
-----------------------------------------------
All of the tangible assets of the McCall Group (other than vessels)
are currently in good and usable condition, ordinary wear and tear
excepted, and are being used in the business of the McCall Group.
There are no defects in such assets or other conditions that in the
aggregate have or would be reasonably likely to have, a Material
Adverse Effect on the McCall Group. Such assets and the other
properties being leased by a member of the McCall Group pursuant to
the leases described on Schedule 4.11(d), together with the vessels
listed on Schedule 4.13(a), constitute all of the operating assets
being utilized by the McCall Group in the conduct of its business and
such assets are sufficient in quantity and otherwise adequate for the
operations of the McCall Group as currently conducted.
Section 4.13. Vessels. (a) Schedule 4.13(a) hereto sets forth
-------
a list of all vessels owned, leased, chartered or managed by any
member of the McCall Group on the date hereof and the name of the
nation under which each such vessel is documented and flagged, and
indicates any such vessels that are laid up or being held for sale on
the date hereof (such vessel, including related spare parts, stores
and supplies (other than any such vessels that are managed on the date
hereof), being referred to herein as "McCall Vessels"). With respect
to the owned McCall Vessels, each member of the McCall Group is the
sole owner of each McCall Vessel owned by it and has good title to
each such vessel free and clear of all Liens, except for (i) Liens
that collateralize indebtedness that is properly reflected in the
McCall Latest Balance Sheet ; (ii) Liens for Taxes accrued but not yet
payable; (iii) Permitted Liens, provided that the obligations
collateralized by such Permitted Liens are not delinquent or are being
contested in good faith and, except with respect to the matters
disclosed on Schedule 4.19, in no event shall such contested
obligations, individually or in the aggregate, exceed $50,000 in the
aggregate. Schedule 4.13(a) contains a list of all Liens (other than
Permitted
<PAGE>
Liens which collateralize obligations that are not delinquent or that
are being contested in good faith and, except with respect to the
matters disclosed on Schedule 4.19, do not exceed $50,000 in the
aggregate) on vessels collateralizing indebtedness on the McCall
Latest Balance Sheet and any guaranty or other credit support
arrangement pursuant to which any member of the McCall Group has
guaranteed an obligation of any other member of the McCall Group where
vessels are the collateral.
(b) With respect to each McCall Vessel that is operated by
a member of the McCall Group under lease or charter and except as
disclosed on Schedule 4.13(b), (i) such member of the McCall Group has
a valid right to charter or a valid leasehold interest in such vessel;
(ii) such charter agreement or lease is in full force and effect in
accordance with its terms; (iii) all rents, charter payments and other
monetary amounts that have become due and payable thereunder have been
paid in full; (iv) no waiver, indulgence or postponement of the
obligations thereunder has been granted by the other party thereto;
(v) there exists no material default (or an event that, with notice or
lapse of time or both would constitute a material default) under such
charter agreement or lease; (vi) such member of the McCall Group has
not violated any of the terms or conditions under any such charter
agreement or lease and, to the Knowledge of McCall, there is no
condition or covenant to be observed or performed by any other party
under such charter agreement or lease that has not been fully observed
or performed; (vii) the transactions described in this Agreement will
not constitute a default under or cause for termination or
modification of such charter agreement or lease and (viii) to the
Knowledge of McCall, there is no unrepaired damage to any equipment
that could affect certification or class or be budgeted for repair in
the next twelve months.
(c) Schedule 4.13(c) contains a list of all leases or
charters providing for the use by a member of the McCall Group of a
McCall Vessel, which list contains a description of the terms of such
lease or charter. Complete and correct copies of each lease or
charter have been delivered to SEACOR.
(d) With respect to each McCall Vessel and except as
indicated on Schedule 4.13(d), (i) such McCall Vessel is lawfully and
duly documented under the flag of the nation listed on Schedule
4.13(a) for such McCall Vessel, (ii) such McCall Vessel is afloat and
in satisfactory operating condition for charter, (iii) such McCall
Vessel holds in full force and effect all certificates, licenses,
permits and rights required for operation in the manner vessels of its
kind are being operated in the geographical area in which such McCall
Vessel is presently being operated, (iv) to the Knowledge of McCall,
no event has occurred and no condition exists that would materially or
adversely effect the condition of such McCall Vessel and (v) with
respect to any McCall Vessel which is classed, such vessel is in
<PAGE>
class, free of any recommendations of which any member of the McCall
Group has been informed.
Section 4.14. Accounting Matters. To the Knowledge of McCall,
------------------
no member of the McCall Group nor any of its Affiliates has taken or
agreed to take any action that (without giving effect to any action
taken or agreed to be taken by SEACOR or any of its Affiliates) would
prevent SEACOR from accounting for the business combination to be
effected by the Merger as a pooling-of-interests.
Section 4.15. Suppliers and Customers. To the Knowledge of
-----------------------
McCall and except as disclosed on Schedule 4.15, (a) no supplier
providing products, materials or services to any member of the McCall
Group intends to cease selling such products, materials or services to
any member of the McCall Group or to limit or reduce such sales to any
member of the McCall Group or materially alter the terms or conditions
of any such sales and (b) no customer of any member of the McCall
Group intends to terminate, limit or reduce its or their business
relations with any member of the McCall Group.
Section 4.16. Employee Matters. (a) Schedule 4.16(a) sets
----------------
forth the name, title, current annual compensation rate (including
bonus and commissions, but separately identifying salary or hourly
rate), accrued bonus, accrued sick leave, accrued severance pay and
accrued vacation benefits of each officer of each member of the McCall
Group, and a list of all employment, consulting, employee
confidentiality or similar Contracts to which any member of the McCall
Group is a party. Copies of organizational charts, any employee
handbook(s), and any reports and/or plans prepared or adopted pursuant
to the Equal Employment Opportunity Act of 1972, as amended, have been
provided to SEACOR.
(b) Each of the following is true with respect to each
member of the McCall Group:
(i) each such member is in compliance with all applicable
laws respecting employment and employment practices, terms and
conditions of employment, wages and hours and occupational safety
and health, and is not engaged in any unfair labor practice
within the meaning of Section 8 of the National Labor Relations
Act, and there is no proceeding pending or, to the Knowledge of
McCall, threatened, or, to the Knowledge of McCall, any pending
or threatened investigation against it relating to any thereof,
and, to the Knowledge of McCall, there is no basis for any such
proceeding or investigation;
<PAGE>
(ii) to the Knowledge of McCall, none of the employees of
any such member is a member of, or represented by, any labor
union and there are no efforts being made to unionize any of such
employees; and
(iii) to the Knowledge of McCall, there are no charges
or complaints of, or proceedings involving, discrimination or
harassment (including but not limited to discrimination or
harassment based upon sex, age, marital status, race, religion,
color, creed, national origin, sexual preference, handicap or
veteran status) pending or, to the Knowledge of McCall,
threatened, nor, to the Knowledge of McCall, is there any pending
or threatened investigation, including, but not limited to,
investigations before the Equal Employment Opportunity Commission
or any federal, state or local agency or court, with respect to
any such member.
Section 4.17. Employee Benefit Plans. With respect to each
----------------------
member of the McCall Group:
(a) Schedule 4.17(a) lists each Employee Plan that each
member of the McCall Group maintains, administers, contributes to, or
has any contingent liability with respect to. McCall has provided a
true and complete copy of each such Employee Plan, current summary
plan description, (and, if applicable, related trust documents) and
all amendments thereto and written interpretations thereof together
with (i) the three most recent annual reports prepared in connection
with each such Employee Plan (Form 5500 including, if applicable,
Schedule B thereto); (ii) the most recent actuarial report, if any,
and trust reports prepared in connection with each Employee Plan;
(iii) all material communications received from or sent to the
Internal Revenue Service ("IRS") or the Department of Labor within the
last two years (including a written description of any material oral
communications); (iv) the most recent IRS determination letter with
respect to each Employee Plan and the most recent application for a
determination letter; (v) all insurance contracts or other funding
arrangements; and (vi) the most recent actuarial study of any post-
employment life or medical benefits provided, if any.
(b) Schedule 4.17(b) identifies each Benefit Arrangement
that each member of the McCall Group maintains, administers,
contributes to, or has any contingent liability with respect to.
McCall has furnished to SEACOR copies or descriptions of each Benefit
Arrangement and any of the information set forth in Section 4.17(a)
applicable to any such Benefit Arrangement. Each Benefit Arrangement
has been maintained and administered in substantial compliance with
its terms and with the requirements (including reporting requirements)
prescribed by any and all statutes, orders, rules and regulations
which are applicable to such Benefit Arrangement.
<PAGE>
(c) Benefits under any Employee Plan or Benefit Arrangement
are as represented in such documents and have not been increased or
modified (whether written or not written) subsequent to the dates of
such documents. Except as disclosed on Schedule 4.17(c), no member of
the McCall Group has communicated to any employee or former employee
any intention or commitment to modify any Employee Plan or Benefit
Arrangement or to establish or implement any other employee or retiree
benefit or compensation arrangement.
(d) No Employee Plan is (i) a Multiemployer Plan, (ii) a
Title IV Plan or (iii) maintained in connection with any trust
described in Section 501(c)(9) of the Code. No member of the McCall
Group has ever maintained or become obligated to contribute to any
employee benefit plan (i) that is subject to Title IV of ERISA, (ii)
to which Section 412 of the Code applies, or (iii) that is a
Multiemployer Plan. No member of the McCall Group has within the last
five years engaged in, or is a successor corporation to an entity that
has engaged in, a transaction described in Section 4069 of ERISA.
(e) Each Employee Plan which is intended to be qualified
under Section 401(a) of the Code is so qualified and has been so
qualified during the period from its adoption to date, and no event
has occurred since such adoption that would adversely affect such
qualification and each trust created in connection with each such
Employee Plan forming a part thereof is exempt from tax pursuant to
Section 501(a) of the Code. A favorable determination letter has been
issued by the IRS as to the qualification of each such Employee Plan
under the Code and to the effect that each such trust is exempt from
taxation under Section 501(a) of the Code. Except as disclosed on
Schedule 4.17(e), each Employee Plan has been maintained and
administered in compliance with its terms and with the requirements
(including reporting requirements) prescribed by any and all
applicable statutes, orders, rules and regulations, including but not
limited to ERISA and the Code.
(f) Full payment has been made of all amounts which any
member of the McCall Group is or has been required to have paid as
contributions to or benefits due under any Employee Plan or Benefit
Arrangement under applicable law or under the terms of any such plan
or any arrangement.
(g) No member of the McCall Group, or any of their
respective directors, officers or employees has engaged in any
transaction with respect to an Employee Plan that could subject McCall
to a tax, penalty or liability for a prohibited transaction, as
defined in Section 406 of ERISA or Section 4975 of the Code. None of
the assets of any Employee Plan are invested in employer securities or
employer real property.
<PAGE>
(h) To the Knowledge of McCall, there are no facts or
circumstances that give rise to any liability under Title I of ERISA.
(i) No member of the McCall Group has any current or
projected liability in respect of post-retirement or post-employment
medical, death or life insurance, welfare benefits for retired,
current or former employees, except as required to avoid excise tax
under Section 4980B of the Code.
(j) Except as disclosed on Schedule 4.17(j), there is no
litigation, administrative or arbitration proceeding or other dispute
pending or threatened that involves any Employee Plan or Benefit
Arrangement which could reasonably be expected to result in a
liability to the McCall Group or SEACOR.
(k) Except as disclosed on Schedule 4.17(k), no employee or
former employee of any member of the McCall Group will become entitled
to any bonus, employee advance, retirement, severance, job security or
similar benefit or enhanced benefit (including acceleration of an
award, vesting or exercise of an incentive award) or any fee or
payment of any kind solely as a result of any of the transactions
contemplated hereby and no such disclosed payment constitutes a
parachute payment described in Section 280G of the Code.
(l) Except as disclosed in Schedule 4.17(l), no Employee
Plan provides health, medical, death or survivor benefits to any
stockholders or directors who are not employees.
Section 4.18. Tax Matters. Each of the following is true with
-----------
respect to each member of the McCall Group to the extent applicable to
such member:
(a) All Returns have been, or will be, timely filed by (or
on behalf of) each member of the McCall Group in accordance with all
applicable laws; all Taxes that are due, or claimed by any taxing
authority to be due from or with respect to each member of the McCall
Group have been or will be timely paid by (or on behalf of) each
member of the McCall Group; all Returns of (or including) each member
of the McCall Group have been properly completed in compliance with
all applicable laws and regulations and are true, complete and correct
in all material respects and such Returns are not subject to penalties
under Section 6662 of the Code (or any corresponding provision of
state, local or foreign tax law). With respect to any period for
which Returns have not yet been filed, or for which Taxes are not yet
due or owing, each member of the McCall Group, as the case may be, has
made due and sufficient current accruals for such Taxes as reflected
on its books (including, without limitation, the McCall Latest Balance
Sheet);
<PAGE>
(b) There are no outstanding agreements, consents, waivers
or arrangements extending the statutory period of limitation
applicable (A) to file any Return or (B) for assessment or collection
of any Taxes due from or with respect to any member of the McCall
Group for any period prior to the date hereof, and no member of the
McCall Group has been requested to enter into any such agreement,
consent, waiver or arrangement;
(c) There are no Liens with respect to Taxes (other than
for current Taxes not yet due and payable) upon any of the assets of
any member of the McCall Group;
(d) All material elections with respect to Taxes affecting
any member of the McCall Group are set forth in Schedule 4.18(d);
(e) All Taxes that any member of the McCall Group is
required by law to withhold or collect (including Taxes required to be
withheld and collected from employee wages, salaries and other
compensation) have been duly withheld or collected, and have been
timely paid over to the appropriate governmental authorities;
(f) The United States federal income tax Returns of (or
including) each member of the McCall Group have been examined by the
IRS or the periods covered by such Returns have been closed by
applicable statute of limitations, for all periods through December
31, 1992. The state, local and foreign Returns of (or including) each
member of the McCall Group have been examined by the relevant taxing
authorities, or the periods covered by such Returns have been closed
by applicable statute of limitations, for all periods through December
31, 1992. All deficiencies claimed, proposed or asserted or
assessments made as a result of such examinations or any other
examinations of any member of the McCall Group have been fully paid or
fully settled, and no issue has been raised by any federal, state,
local or foreign taxing authority in any such examination which, by
application of the same or similar principles, could reasonably be
expected to result in a proposed deficiency for any subsequent taxable
period. Schedule 4.18(f) sets forth each state and foreign
jurisdiction in which any member of the McCall Group has, in the last
three years, filed a Return.
(g) No Tax audits or other administrative proceedings are
pending with regard to any Taxes for which any member of the McCall
Group may be liable and no member of the McCall Group has received any
notice from any taxing authority that it intends to conduct such an
audit or commence such an administrative proceeding.
<PAGE>
(h) No claim has been made by a taxing authority in a
jurisdiction where any member of the McCall Group does not file
Returns that such member of the McCall Group is or may be subject to
taxation by that jurisdiction.
(i) No member of the McCall Group is a party to any
agreement, contract, arrangement or plan that would result, separately
or in the aggregate, in the payment of any "parachute payments" within
the meaning of Code Section 280G (or any comparable provision of state
or local law);
(j) No member of the McCall Group has agreed, nor is it
required, to make any adjustment under Code Section 481(a) (or any
comparable provision of state or local law) by reason of a change in
any accounting method or otherwise, and there is no application
pending with any taxing authority requesting permission for any
changes in any accounting method of any member of the McCall Group.
Neither the IRS nor any comparable taxing authority has proposed to
any member of the McCall Group in writing or, to the Knowledge of
McCall, otherwise proposed any such adjustment or change in accounting
method.
(k) No member of the McCall Group has filed a consent
pursuant to the collapsible corporation provisions of Section 341(f)
of the Code (or any corresponding provision of state, local or foreign
income law) or agreed to have Section 341(f)(2) of the Code (or any
corresponding provision of state, local or foreign income tax law)
apply to any disposition of any asset owned by it;
(l) None of the assets of any member of the McCall Group is
property that such company is required to treat as being owned by any
other 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 Tax Reform Act of 1986;
(m) None of the assets of any member of the McCall Group
directly or indirectly secures any debt, the interest on which is tax
exempt under Section 103(a) of the Code;
(n) None of the assets of any member of the McCall Group
(i) is subject to Section 168(g)(i)(A) of the Code or (ii) constitutes
"tax-exempt use property" within the meaning of Section 168(h) of the
Code;
<PAGE>
(o) No member of the McCall Group has made a deemed
dividend election under Section 1.1502- 32(f)(2) of the Treasury
Regulations or a consent dividend election under Section 565 of the
Code;
(p) No member of the McCall Group has ever been a member of
an affiliated group of corporations filing a consolidated combined or
unitary Return other than a group of which McCall is the parent
corporation; and
(q) No member of the McCall Group is (or has ever been) a
party to any tax sharing agreement nor has any such member assumed the
tax liability of any other person under contract.
Section 4.19. Litigation. Except as disclosed on Schedule 4.19,
----------
there are no actions, suits, proceedings, arbitrations or
investigations pending or, to the Knowledge of McCall, threatened
before any court, any governmental agency or instrumentality or any
arbitration panel, against or affecting any member of the McCall Group
or, to the Knowledge of McCall, any of the directors or officers of
the foregoing. To the Knowledge of McCall, no facts or circumstances
exist that would be likely to result in the filing of any such action
that would have a Material Adverse Effect on the McCall Group. Except
as disclosed on Schedule 4.19, no member of the McCall Group is
subject to any currently pending judgment, order or decree entered in
any lawsuit or proceeding. All matters listed on Schedule 4.19 are
either adequately covered by insurance or accounted for through the
establishment of reasonable reserves on McCall's Latest Balance Sheet.
Section 4.20. Insurance. (a) Schedule 4.20(a) contains a list
---------
of the insurance policies that each member of the McCall Group
currently maintains with respect to its business, vessels, properties
and employees as of the date hereof, each of which is in full force
and effect and a complete and correct copy of each has been delivered
to SEACOR. All insurance premiums currently due with respect to such
policies have been paid and no member of the McCall Group is otherwise
in default with respect to any such policy, nor has any member of the
McCall Group failed to give any notice or, to the Knowledge of McCall,
present any claim under any such policy in a due and timely manner.
There are no outstanding unpaid claims under any such policy other
than any pending claims under any of McCall's marine insurance
policies, the amount of which claims have been recorded as a
receivable and all of which are fully collectible. No member of the
McCall Group has received notice of cancellation or non-renewal of any
such policy. Such policies are sufficient for compliance with all
requirements of law and all agreements to which any member of the
McCall Group is a party.
<PAGE>
(b) Except as disclosed on Schedule 4.20(b), no member of
the McCall Group is or has ever been a member of any protection or
indemnity club.
Section 4.21. Environmental Compliance. (a) Except as set
------------------------
forth on Schedule 4.21(a), each member of the McCall Group is and, to
the Knowledge of McCall, at all times in the past has been in
compliance with all Environmental Laws and each member of the McCall
Group possesses all necessary licenses, permits, authorizations, and
other approvals and authorizations that are required under the
Environmental Laws ("Environmental Permits").
(b) Except as set forth on Schedule 4.21(b), no member of
the McCall Group is, nor has been, subject to any pending or, to the
Knowledge of McCall, threatened investigations, administrative or
judicial proceedings pursuant to, or has received any notice of any
violation of, or claim alleging liability under, any Environmental
Laws, and, to the Knowledge of McCall, no facts or circumstances exist
that would be likely to result in a claim, citation or allegation
against any member of the McCall Group for a violation of, or alleging
liability under, any Environmental Laws.
(c) Except as set forth on Schedule 4.21(c), there are no
above ground or underground tanks of any type (including tanks storing
gasoline, diesel fuel, oil or other petroleum products) or disposal
sites for hazardous substances, hazardous wastes or any other waste,
located on or under the real estate currently owned, leased or used by
any member of the McCall Group and, to the Knowledge of McCall, there
were no such disposal sites located on or under the real estate
previously owned, leased or used by any member of the McCall Group on
the date of the sale thereof by any member of the McCall Group or
during the period of lease for use by any member of the McCall Group.
(d) Except in the ordinary course of business or as listed
on Schedule 4.21(d), and in all cases in compliance with Environmental
Laws, no member of the McCall Group has engaged any third party to
handle, transport or dispose of Hazardous Substances (including for
this purpose but not limited to, gasoline, diesel fuel, oil or other
petroleum products, or bilge waste) on its behalf. The disposal by
each member of the McCall Group of its hazardous substances and wastes
has been in compliance with all Environmental Laws.
(e) To the Knowledge of McCall, no asbestos or asbestos
containing materials have been used in the construction, repair,
fitting out or retrofitting of any of the McCall Vessels.
<PAGE>
Section 4.22. Compliance With Law; Permits. Except with respect
----------------------------
to Environmental Laws, which is the subject of Section 4.21, the
following statements are true and correct:
(a) The operations and activities of each member of the
McCall Group complies with all applicable laws, regulations,
ordinances, rules or orders of any federal, state or local court or
any governmental authority except for any violation or failure to
comply that could not reasonably be expected to result in a Material
Adverse Effect on the McCall Group.
(b) Each member of the McCall Group possesses all
governmental licenses, permits and other governmental authorizations
that are (i) required under all federal, state and local laws and
regulations for the ownership, use and operation of its assets or (ii)
otherwise necessary to permit the conduct of its business without
interruption, and such licenses, permits and authorizations are in
full force and effect and have been and are being fully complied with
by it except for any violation or failure to comply that could not
reasonably be expected to result in a Material Adverse Effect on the
McCall Group. No member of the McCall Group has received any notice
of any violation of any of the terms or conditions of any such
license, permit or authorization and, to the Knowledge of McCall, no
facts or circumstances exist that could form the basis of a
revocation, claim, citation or allegation against it for a violation
of any such license, permit or authorization. No such license, permit
or authorization or any renewal thereof will be terminated, revoked,
suspended, modified or limited in any respect as a result of the
transactions contemplated by this Agreement except for any violation
or failure to comply that could not reasonably be expected to result
in a Material Adverse Effect on the McCall Group.
Section 4.23. Interests in Clients, Suppliers, Etc. Except as
------------------------------------
set forth on Schedule 4.23, no officer or director of any member of
the McCall Group 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 McCall Group or that has
entered into any contract with any member of the McCall Group.
Ownership of less than 1% of any class of securities of a company
whose securities are registered under the Exchange Act will not be
deemed to be a financial interest for purposes of this Section 4.23.
Section 4.24. Transactions With Related Parties. (a) Schedule
---------------------------------
4.24(a) lists all transactions between January 1, 1993 and the date of
this Agreement involving, or for the benefit of, any member of the
McCall Group, on the one hand, and any director or officer of any
member of the McCall Group or Affiliate of such director or officer,
on the other hand, including (i) any debtor or creditor relationship,
(ii) any transfer or lease of real or personal
<PAGE>
property or charter or management of any McCall Vessel, and (iii)
purchases or sales of products or services.
(b) Schedule 4.24(b) lists (i) all agreements and claims of
any nature that any officer or director of any member of the McCall
Group or any Affiliate (other than another member of the McCall Group)
of such officer or director has with or against any member of the
McCall Group as of the date of this Agreement that are not identified
on the McCall Latest Balance Sheet or the notes thereto and (ii) all
agreements and claims of any nature that any member of the McCall
Group has with or against any officer or director of any member of the
McCall Group or any Affiliate (other than another member of the McCall
Group) of such officer or director as of the date of this Agreement
that are not identified on the McCall Latest Balance Sheet or the
notes thereto.
Section 4.25. Broker's and Finder's Fee. No agent, broker,
-------------------------
person or firm acting on behalf of any member of the McCall Group is
or will be entitled to any commission or broker's or finder's fee from
any of the parties hereto, or from any Affiliate of the parties
hereto, in connection with any of the transactions contemplated
herein.
Section 4.26. Disclosure. No representations or warranties by
----------
McCall in this Agreement and no statement contained in the schedules
or exhibits or in any certificate to be delivered pursuant to this
Agreement, contains or will contain any untrue statement of material
fact or omits or will omit to state any material fact necessary, in
light of the circumstances under which it was made, in order to make
the statements herein or therein not misleading.
Section 4.27. Intellectual Property. (a) Schedule 4.27 contains
---------------------
a list of any trademarks, service marks, trade names, copyrights and
patents (and any application for the registration thereof), owned or
licensed by a member of the McCall Group, specifying as to each, as
applicable: (i) the nature of such Intellectual Property Right; (ii)
the owner of each Intellectual Property Right licensed by a member of
the McCall Group; (iii) the expiration or termination date of each
third party license; and (iv) any third Person to whom any
Intellectual Property Right owned by a member of the McCall Group is
licensed. All of the Intellectual Property Rights owned by any member
of the McCall Group are owned by such member free and clear of Liens.
All third party licenses are valid, enforceable and in full force and
effect, and the interests of any member of the McCall Group under such
third party licenses are held free and clear of any Liens. No member
of the McCall Group has any obligation to make any royalty or other
payment to any Person in connection with the use of or right to use
any Intellectual Property Right. The making, using or selling of
products or services incorporating the subject matter of any
Intellectual Property Rights of
<PAGE>
any member of the McCall Group does not infringe, violate or conflict
with any Intellectual Property Rights of any other Person.
(b) To the Knowledge of McCall, the use by any member of
the McCall Group of the name "McCall" or any variant or derivative
thereof used by any member of the McCall Group on the date hereof does
not violate or infringe any Intellectual Property Right of any Person.
ARTICLE 5.
REPRESENTATIONS AND WARRANTIES OF SEACOR AND SUB
SEACOR and Sub represent and warrant to McCall as follows:
Section 5.1. Organization and Citizenship. (a) SEACOR and Sub
----------------------------
are corporations duly organized, validly existing and in good standing
under the laws of the State of Delaware and Louisiana, respectively,
and have all corporate power and authority to carry on their
businesses as now being conducted and to own, lease and operate their
properties. Each other member of the SEACOR Affiliated Group is duly
organized under the laws of the state or foreign nation of its
organization and has all the requisite power and authority under the
laws of such jurisdiction to carry on its business as now being
conducted and to own its properties. Each member of the SEACOR
Affiliated Group is duly qualified to do business and is in good
standing in each state and foreign jurisdiction in which the character
or location of the properties owned or leased by it or the nature of
the business conducted by it makes such qualification necessary,
except where the failure to be so qualified or in good standing would
not have a Material Adverse Effect on SEACOR.
(b) Each of SEACOR and Sub is a citizen of the United
States within the meaning of Section 2 of the Shipping Act, 1916, as
amended for the purposes of owning and operating vessels in the U.S.
coastwise trade.
Section 5.2. Capitalization. (a) The authorized capital stock
--------------
of SEACOR consists exclusively of 20,000,000 shares of common stock,
$.01 par value per share, of which 8,513,825 shares were issued and
outstanding and 55,768 shares were held in its treasury as of May 28,
1996. All of such issued and outstanding shares have been validly
issued, are fully paid and nonassessable and were issued free of
preemptive rights, in compliance with any rights of first refusal, and
in compliance with all legal requirements.
(b) The authorized capital stock of Sub consists of 100
shares of Common Stock, $.01 par value per share, of which 100 shares
are issued and outstanding and owned
<PAGE>
by SEACOR and no shares are held in its treasury as of the date
hereof. All of such issued and outstanding shares have been validly
issued, are fully paid and nonassessable and were issued free of pre-
emptive rights, in compliance with any rights of first refusal, and in
compliance with all legal requirements.
Section 5.3. Authority; Enforceable Agreements. (a) SEACOR
---------------------------------
and Sub each has the requisite corporate power and authority to enter
into this Agreement and to consummate the transactions contemplated
hereby. The execution and delivery of this Agreement by SEACOR and
Sub and the consummation by SEACOR and Sub of the transactions
contemplated hereby have been duly authorized by all necessary
corporate action on the part of SEACOR and Sub.
(b) This Agreement has been duly executed and delivered by
SEACOR and Sub, and (assuming due execution and delivery by the other
parties hereto) constitutes a valid and binding obligation of SEACOR
and Sub, enforceable against SEACOR and Sub in accordance with its
terms, except as such enforceability may be limited by bankruptcy,
insolvency, reorganization or similar laws affecting creditors' rights
generally. The other agreements entered, or to be entered, into by
SEACOR and Sub in connection with this Agreement have been, or will
be, duly executed and delivered by SEACOR and Sub and (assuming due
execution and delivery by the other parties thereto) constitute, or
will constitute, valid and binding obligations of SEACOR and Sub,
enforceable against SEACOR and Sub in accordance with their terms,
except as such enforceability may be limited by bankruptcy,
insolvency, reorganization or similar laws affecting creditors' rights
generally.
Section 5.4. No Conflicts or Consents. (a) Neither the
------------------------
execution, delivery nor performance of this Agreement by SEACOR or Sub
nor the consummation of the transactions contemplated hereby will (i)
violate, conflict with, or result in a breach of any provision of,
constitute a default (or an event that, with notice or lapse of time
or both, would constitute a default) under, result in the termination
of, or accelerate the performance required by, or result in the
creation of any adverse claim against any of the properties or assets
of any member of the SEACOR Affiliated Group under (A) the
certificates of incorporation, by-laws or other organizational
documents of any member of the SEACOR Affiliated Group or (B) any
note, bond, mortgage, indenture, deed of trust, lease, license,
agreement or other instrument or obligation to which any member of the
SEACOR Affiliated Group is a party, or by which any of its assets are
bound, or (ii) subject to obtaining clearance under the HSR Act,
violate any order, writ, injunction, decree, judgment, statute, rule
or regulation of any governmental body to which any member of the
SEACOR Affiliated Group is subject or by which any of its assets are
bound.
<PAGE>
(b) No consent, approval, order, permit or authorization
of, or registration, declaration or filing with, any Person or of any
government or any agency or political subdivision thereof is required
for the execution, delivery and performance by SEACOR or Sub of this
Agreement and the covenants and transactions contemplated hereby or
for the execution, delivery and performance by SEACOR or Sub of any
other agreements entered, or to be entered, into by SEACOR or Sub in
connection with this Agreement, except for (i) the filing of the HSR
Report by SEACOR under the HSR Act and the early termination or
expiration of applicable waiting periods thereunder, (ii) the filing
of the Registration Statement on Form S-3 with the SEC, any filings,
consents or approvals in connection therewith and the declaration of
effectiveness thereof by the SEC as contemplated by the Investment and
Registration Rights Agreement and (iii) the filing of the Certificate
of Merger as provided in Section 2.1(b) hereof.
Section 5.5. Corporate Documents. SEACOR has delivered to
-------------------
McCall true and complete copies of its certificate of incorporation
and by-laws, as amended or restated through the date of this
Agreement.
Section 5.6. SEC Documents; Financial Statements; Liabilities.
------------------------------------------------
(a) SEACOR has filed all required reports, schedules, forms,
statements and other documents with the SEC since December 31, 1993
(the "SEACOR SEC Documents"). As of their respective dates, the
SEACOR SEC Documents complied as to form in all material respects with
the requirements of the Securities Act or the Exchange Act, as the
case may be, and the rules and regulations of the SEC promulgated
thereunder applicable to such SEACOR SEC Documents, and none of the
SEACOR SEC Documents contained any untrue statement of a material fact
or omitted to state a material fact required to be stated therein or
necessary in order to make the statements therein, in light of the
circumstances under which they were made, not misleading.
(b) The SEACOR Financial Statements included in the SEACOR
SEC Documents have been prepared in accordance with GAAP applied on a
basis consistent with prior periods, and present fairly the financial
position of SEACOR and its subsidiaries at the dates of the balance
sheets included therein and the results of operations and cash flows
for the periods then ended, except, in the case of the SEACOR Interim
Financial Statements, as permitted by Rule 10-01 of Regulation S-X of
the SEC. The SEACOR Interim Financial Statements reflect all
adjustments (consisting only of normal recurring adjustments) that are
necessary for a fair statement of the results for the interim periods
presented therein. No member of the SEACOR Affiliated Group has, nor
are any of their respective assets subject to, any liability,
commitment, debt or obligation (of any kind whatsoever whether
absolute or contingent, accrued, fixed, known, unknown, matured or
unmatured), except (i) as and to the
<PAGE>
extent reflected on the SEACOR Latest Balance Sheet, (ii) as may have
been incurred or may have arisen since the date of the SEACOR Latest
Balance Sheet in the ordinary course of business and that are not
material individually or in the aggregate or (iii) as permitted by
this Agreement.
Section 5.7. Absence of Certain Changes or Events. Since the
------------------------------------
date of the SEACOR Latest Balance Sheet, each member of the SEACOR
Affiliated Group has conducted its business only in the ordinary
course, and has not:
(a) amended its certificate of incorporation, by-laws or
similar organizational documents;
(b) merged or consolidated with another Person (other than
a subsidiary) or acquired or agreed to acquire any Person, or sold,
leased, transferred or otherwise disposed of any material portion of
its assets except for fair value in the ordinary course of business;
(c) suffered any damage, destruction or loss (whether or
not covered by insurance) which has had or could reasonably be
expected to have a Material Adverse Effect on the SEACOR Affiliated
Group; or
(d) declared or paid any dividend or made any distribution
with respect to any of its equity interests, or redeemed, purchased or
otherwise acquired any of its equity interests, or issued, sold or
granted any equity interests or any option, warrant or other right to
purchase or acquire any such interest or effected any split or
reclassification thereof other than (i) grants of stock options or
restricted stock and issuances of shares of SEACOR Common Stock upon
the exercise of stock options or conversion of any outstanding
convertible securities, (ii) the acceptance by SEACOR of any shares in
consideration of the exercise of any stock options or in satisfaction
of any tax or tax withholding obligations of the holders of such
options, and (iii) payments within the SEACOR Affiliated Group by
entities other than SEACOR as part of its cash management program; or
(e) agreed, whether or not in writing, to do any of the
foregoing.
Section 5.8. Contracts. Each Contract which any member of the
---------
SEACOR Affiliated Group is a party that would be required to be filed
as an exhibit to a report, schedule, form, statement or other document
filed by SEACOR with the SEC (each a "Material Contract") has been so
filed and, except as set forth on Schedule 5.8, between the date of
the filing of its most recent Quarterly Report on Form 10-Q and the
date of this Agreement, SEACOR has not entered into any Material
Contract other than this Agreement.
<PAGE>
No member of the SEACOR Affiliated Group has breached, nor is there
any pending or, to the Knowledge of SEACOR, threatened, claim that it
has breached, any of the terms or conditions of any of its Material
Contracts, and to the Knowledge of SEACOR, no other parties to any
such Material Contract have breached any of its terms or conditions.
Section 5.9. Litigation. Except as disclosed in a SEACOR SEC
----------
Document or listed on Schedule 5.9, there are no actions, suits,
proceedings, arbitrations or investigations pending or, to the
Knowledge of SEACOR, threatened, before any court, any governmental
agency or instrumentality or any arbitration panel, against or
affecting any member of the SEACOR Affiliated Group or, to the
Knowledge of SEACOR, any of the directors or officers of the
foregoing, that would have a Material Adverse Effect on SEACOR. To
the Knowledge of SEACOR, no facts or circumstances exist that would be
likely to result in the filing of any such action. No member of the
SEACOR Affiliated Group is subject to any currently pending judgment,
order or decree entered in any lawsuit or proceeding.
Section 5.10. Legality of SEACOR Common Stock. The SEACOR
-------------------------------
Common Stock to be issued in connection with the Merger, when issued
and delivered in accordance with the terms hereof, will be duly
authorized, validly issued, fully paid and non-assessable, and free of
pre-emptive rights.
Section 5.11. Broker's and Finder's Fee. No agent, broker,
-------------------------
Person or firm acting on behalf of SEACOR is or will be entitled to
any commission or broker's or finder's fee from any of the parties
hereto, or from any Affiliate of the parties hereto, in connection
with any of the transactions contemplated herein.
ARTICLE 6.
PRE-CLOSING COVENANTS
Section 6.1. Hart-Scott-Rodino; Cooperation and Best Efforts.
-----------------------------------------------
(a) McCall and SEACOR shall cooperate in good faith and take all
actions reasonably necessary or appropriate to file, and expeditiously
and diligently prosecute to a favorable conclusion, the HSR Reports
required to be filed by each of them in connection herewith with the
Federal Trade Commission (the "FTC") and the Department of Justice
(the "DOJ") pursuant to the HSR Act; provided that SEACOR shall not be
required to accept any conditions that may be imposed by the FTC or
the DOJ in connection with such filings that would require the
divestiture of any SEACOR or McCall assets or otherwise have a
Material Adverse Effect on SEACOR or McCall.
<PAGE>
(b) Each party shall cooperate with the other and use its
best efforts to (i) receive all necessary and appropriate consents of
third parties to the transactions contemplated hereunder, (ii) satisfy
all requirements prescribed by law for, and all conditions set forth
in this Agreement to, the consummation of the Merger, and (iii) effect
the Merger in accordance with this Agreement at the earliest
practicable date.
Section 6.2. Conduct of Business By Both Parties Prior to the
------------------------------------------------
Closing Date. During the period from the date of this Agreement to
------------
the Effective Time, McCall and SEACOR shall each use its best efforts
to preserve the goodwill of suppliers, customers and others having
business relations with it and to do nothing knowingly to impair its
ability to keep and preserve its business as it exists on the date of
this Agreement. Without limiting the generality of the foregoing,
during the period from the date of this Agreement to the Effective
Time of the Merger each of McCall and SEACOR shall not, without the
prior written consent of the other:
(a) declare, set aside, increase or pay any dividend
(including any stock dividends), or declare or make any distribution
on, or directly or indirectly combine, redeem, reclassify, purchase,
or otherwise acquire, any shares of its capital stock or authorize the
creation or issuance of, or issue, deliver or sell any additional
shares of its capital stock or any securities or obligations
convertible into or exchangeable for its capital stock or effect any
stock split or reverse stock split or other recapitalization, except
(i) grants of stock options or restricted stock and the issuance of
shares of SEACOR Common Stock upon the exercise of stock options or
conversion of any outstanding convertible security; (ii) the
acceptance by SEACOR of any shares in consideration of the exercise of
any stock options or in satisfaction of any tax or tax withholding
obligations of the holders of such options, and (iii) payments within
the SEACOR Affiliated Group by entities other than SEACOR as part of
its cash management program;
(b) amend its certificate of incorporation or by-laws, or
adopt or amend any resolution or agreement concerning indemnification
of its directors, officers, employees or agents;
(c) pledge or otherwise encumber any shares of its capital
stock, any other voting securities and any securities convertible
into, or any rights, warrants or options to acquire, any such shares,
or any other voting securities or convertible securities;
(d) commit or omit to do any act which act or omission
would cause a breach of any covenant contained in this Agreement or
would cause any representation or
<PAGE>
warranty contained in this Agreement to become untrue, as if each such
representation and warranty were continuously made from and after the
date hereof to the Effective Time;
(e) violate any applicable law, statute, rule, governmental
regulation or order that would have a Material Adverse Effect on such
party;
(f) fail to maintain its books, accounts and records in the
usual manner on a basis consistent with that heretofore employed;
(g) take any action that would prevent the accounting for
the business combination to be effected by the Merger as a pooling-of-
interests; or
(h) authorize any of, or agree or commit to do any of, the
foregoing actions.
Section 6.3. Conduct of Business By McCall Prior to the Closing
--------------------------------------------------
Date. During the period from the date of this Agreement to the
----
Effective Time, in addition to its other covenants set forth in
Section 6.2, each member of the McCall Group shall use its best
efforts to preserve the possession and control of all of its assets
other than those permitted to be disposed of pursuant to the terms of
this Agreement, shall conduct its business only in the ordinary course
consistent with past practice, and, except as otherwise provided
herein, shall not, without the prior written consent of SEACOR:
(a) except as contemplated by Section 4.17, enter into or
modify any employment, compensation, severance or similar agreement or
arrangement with any director or employee, or grant any increase in
the rate of wages, salaries, bonuses, employee advances or other
compensation or benefits of any executive officer or other employee,
other than any such increase that is both in the ordinary course of
business consistent with past practice and in an amount such that,
after giving effect thereto, aggregate employee compensation expense
(considered on an annualized basis) does not exceed 105% of the
aggregate employee compensation expense for the fiscal year ending
December 31, 1995;
(b) enter into any new line of business;
(c) acquire or agree to acquire (i) by merging or
consolidating with, or by purchasing a material portion of the assets
of, or by any other manner, any business or any Person or (ii) any
assets that are material, individually or in the aggregate, to the
McCall Group, except purchases of materials, equipment and supplies in
the ordinary course of business consistent with past practice;
<PAGE>
(d) except as disclosed on Schedule 6.3(d), sell or
otherwise dispose of any McCall Vessel and, except for dispositions
made in the ordinary course of business and consistent with past
practices, sell, lease, license, mortgage or otherwise encumber or
subject to any Lien or otherwise dispose of any of its other
properties or assets;
(e) except as disclosed on Schedule 6.3(e), (i) incur any
indebtedness for borrowed money; or guarantee any such indebtedness of
another Person, issue or sell any debt securities or warrants or other
rights to acquire any debt securities of such party or any of its
subsidiaries, guarantee any debt securities of another Person, enter
into any "keep well" or other agreement to maintain any financial
condition of another Person or enter into any arrangement having the
economic effect of any of the foregoing, or (ii) make any loans,
advances or capital contributions to, or investments in, any other
Person;
(f) except as disclosed on Schedule 6.3(f), make or agree
to make any new capital expenditures other than those made in the
ordinary course of business and consistent with past practices, but in
no event to exceed in the aggregate $50,000;
(g) place or suffer to exist on any of its assets or
properties any Lien, other than Liens listed on Schedules 4.11(a) or
4.13(a) and Permitted Liens, provided that the obligations
collateralized by such Permitted Liens are not delinquent or are being
contested in good faith and in no event shall the contested
obligations, individually or in the aggregate, collateralized by such
Permitted Liens exceed $50,000, in the aggregate, or forgive any
material indebtedness owing to it or any claims which it may have
possessed, or waive any right of substantial value or discharge or
satisfy any material noncurrent liability;
(h) depart from any normal drydock and maintenance
practices or discontinue replacement of spares in operating its fleet;
(i) defer any scheduled maintenance on any McCall Vessels;
(j) enter into any charter for its vessels which have a
term of longer than 60 days at a fixed rate;
(k) authorize any of, or agree or commit to do any of, the
foregoing actions; or
(l) fail to maintain, renew or assist SEACOR in obtaining
all necessary Environmental Permits required for its business and
vessels.
<PAGE>
Section 6.4. Press Releases. McCall and SEACOR will consult
--------------
with each other before issuing, and provide each other the opportunity
to review and comment upon, any press releases or other public
statements with respect to any transactions described in this
Agreement, including the Merger, and shall not issue any such press
releases or make any such public statement prior to such consultation,
except as may be required by applicable law, court process or by
obligations pursuant to a listing agreement with the NASDAQ Stock
Market.
Section 6.5. Cooperation. The McCall Group agrees to cooperate
-----------
with SEACOR and to assist SEACOR in identifying the Environmental
Permits required by SEACOR to operate the business from and after the
Closing Date and will either, where permissible, transfer existing
Environmental Permits of the McCall Group to SEACOR, or, where not
permissible, assist SEACOR in obtaining new Environmental Permits for
the Surviving Corporation.
Section 6.6. Access to Information and Confidentiality. (a)
-----------------------------------------
Prior to the Closing Date, each of McCall and SEACOR shall afford to
the other party and the officers, employees, accountants, counsel,
financial advisors and other representatives of such other party,
reasonable access during normal business hours to their respective
premises, books and records and will furnish to the other party (i) a
copy of each report, schedule, registration statement and other
documents filed by it during such period pursuant to the requirements
of federal or state securities laws and (ii) such other information
with respect to its business and properties as such other party
reasonably requests.
(b) Prior to the Closing, McCall will comply, and shall
cause the other members of the McCall Group to comply, with the
obligations of the Companies relating to SEACOR's due diligence
investigation set forth in paragraph 10 of the term sheet incorporated
by reference into a letter agreement dated April 18, 1996 among
SEACOR, McCall and certain other parties.
(c) Each of McCall and SEACOR will, and will cause its
officers, directors, employees, agents and representatives to, (i)
hold in confidence, unless compelled to disclose by judicial or
administrative process or, in the opinion of its counsel, by other
requirements of law, all nonpublic information concerning the other
party furnished in connection with the transactions contemplated by
this Agreement until such time as such information becomes publicly
available (otherwise than through the wrongful act of such person),
(ii) not release or disclose such information to any other person,
except in connection with this Agreement to its auditors, attorneys,
financial advisors, other consultants and advisors and (iii) not use
such information for any competitive or other purpose other
<PAGE>
than with respect to its consideration and evaluation of the
transactions contemplated by this Agreement. In the event of
termination of this Agreement for any reason, McCall and SEACOR will
promptly return or destroy all documents containing nonpublic
information so obtained from the other party and any copies made of
such documents and any summaries, analyses or compilations made
therefrom.
Section 6.7. Consultation and Reporting. During the period
--------------------------
from the date of this Agreement to the Closing Date, McCall will,
subject to any applicable legal or contractual restrictions, confer on
a regular and frequent basis with SEACOR to report material
operational matters and to report on the general status of ongoing
operations. Each of McCall and SEACOR will notify the other of any
unexpected emergency or other change in the normal course of its
business or in the operation of its properties and of any governmental
complaints, investigations, adjudicatory proceedings, or hearings (or
communications indicating that the same may be contemplated) and will
keep the other fully informed of such events and permit its
representatives prompt access to all materials prepared by or on
behalf of such party or served on them, in connection therewith.
Section 6.8. Update Schedules. Each party hereto will promptly
----------------
disclose to the other any information contained in its representations
and warranties and on the related schedules that is incomplete or no
longer correct; provided, however, that none of such disclosures will
-------- -------
be deemed to modify, amend or supplement the representations and
warranties of such party, unless the other party consents to such
modification, amendment or supplement in writing.
Section 6.9. Notification. McCall shall notify SEACOR of any
------------
vessel that will be drydocked prior to Closing and of any insurable or
noninsurable loss prior to Closing.
ARTICLE 7.
CLOSING CONDITIONS
Section 7.1. Condition Applicable to All Parties. The
-----------------------------------
obligations of each of the parties hereto to effect the Merger and the
other transactions contemplated by this Agreement are subject to the
satisfaction or waiver of the condition that no action, suit or
proceeding before any court or governmental or regulatory authority
will be pending, no investigation by any governmental or regulatory
authority will have been commenced, and no action, suit or proceeding
by any governmental or regulatory authority will have been threatened,
against McCall or SEACOR or any of the principals, officers or
directors of either of them, seeking to restrain, prevent or change
the transactions contemplated hereby or questioning the legality
<PAGE>
or validity of any such transactions or seeking substantial damages in
connection with any such transactions.
Section 7.2. Conditions to SEACOR's Obligations. The
----------------------------------
obligations of SEACOR to effect the Merger and the other transactions
contemplated by this Agreement are also subject to the satisfaction or
waiver of the following conditions at or prior to the Closing:
(a) (i) The representations and warranties of McCall in
this Agreement or in any certificate delivered to SEACOR pursuant
hereto as of the date hereof will be deemed to have been made again at
and as of the Closing Date (without regard to any Schedule updates
furnished by McCall after the date hereof unless consented to by
SEACOR) and will then be true and correct in all material respects,
and (ii) McCall will have performed and complied in all material
respects with all agreements and conditions required by this Agreement
to be performed or complied with by McCall prior to or on the Closing
Date, except to the extent any such representation or warranty or
performance or compliance, as the case may be, is qualified by
materiality or by reference to the term "Material Adverse Effect", in
which case such representation or warranty or performance or
compliance shall be true and correct in all respects.
(b) There shall not have occurred any event or circumstance
that shall have resulted in or is reasonably likely to result in a
Material Adverse Effect with respect to the McCall Group from the date
of the McCall Latest Balance Sheet to the Closing Date.
(c) All waiting periods applicable to the Merger under the
HSR Act shall have been terminated or shall have expired and no
condition shall have been imposed on McCall or SEACOR to obtain such
termination that would require the divestiture of any of either of
such party's assets or otherwise have a Material Adverse Effect on
such party.
(d) All governmental and other material third-party
consents and approvals, if any, necessary to permit the consummation
of the transactions contemplated by this Agreement, including, but not
limited to, the transfer or obtaining of all material permits, or to
permit the continued operation of the business of the McCall Group in
substantially the same manner after the Closing Date as immediately
prior to the Closing Date and otherwise consistent with the provisions
of this Agreement, shall have been received.
(e) The receipt by SEACOR of a certificate executed by the
Chief Executive Officer or Chief Financial Officer of McCall dated the
Closing Date, certifying that the conditions specified in Section
7.2(a) and (b) hereof have been fulfilled.
<PAGE>
(f) McCall will have delivered to SEACOR, each dated as of
a date not earlier than five days prior to the Closing Date, (i)
copies of the certificates of incorporation or comparable documents of
each member of the McCall Group, including all amendments thereto,
certified by the appropriate government official of the jurisdiction
of incorporation, (ii) to the extent issued by such jurisdiction,
certificates from the appropriate governmental official to the effect
that each member of the McCall Group is in good standing in such
jurisdiction and listing all organizational documents of the members
of the McCall Group on file, (iii) to the extent issued by such
jurisdiction, a certificate from the appropriate governmental official
in each jurisdiction in which each member of the McCall Group is
qualified to do business to the effect that such member is in good
standing in such jurisdiction and (iv) to the extent issued by such
jurisdiction, certificates as to the tax status of each member of the
McCall Group in its jurisdiction of organization and each jurisdiction
in which such member is qualified to do business.
(g) The receipt by SEACOR of a letter of its independent
public accountants, Arthur Andersen LLP, to the effect that pooling-
of-interests accounting for the Merger (under Accounting Principles
Board Opinion No. 16) is appropriate, provided that the Merger is
consummated in accordance with the terms and subject to the conditions
of this Agreement.
(h) SEACOR shall have received from Jones, Walker,
Waechter, Poitevent, Carrere & Denegre, L.L.P., special counsel to
McCall, and Stockwell, Sievert, Viccellio, Clements and Shaddock,
L.L.P., counsel to McCall, opinions, dated as of the Closing Date,
which, together, cover the matters set forth in Exhibit E.
(i) Each of the McCall Stockholders shall have executed and
delivered the Investment and Registration Rights Agreement, an
Indemnification Agreement substantially in the form attached hereto as
Exhibit F (the "Indemnification Agreement"), and an Escrow Agreement
substantially in the form attached hereto as Exhibit G (the "Escrow
Agreement").
(j) Norman F. McCall shall have executed and delivered the
Letter of Employment, in the form attached hereto as Exhibit H
regarding the terms of his employment with the Surviving Corporation
(the "Letter of Employment").
Section 7.3. Conditions to McCall's Obligations. The
----------------------------------
obligations of McCall to effect the Merger and the other transactions
contemplated by this Agreement are also subject to the satisfaction or
waiver of the following conditions at or prior to the Closing:
<PAGE>
(a) (i) The representations and warranties of SEACOR in
this Agreement or in any certificate delivered to McCall pursuant
hereto as of the date hereof will be deemed to have been made again at
and as of the Closing Date (without regard to any Schedule updates
furnished by SEACOR after the date hereof unless consented to by
McCall) and will then be true and correct in all material respects,
and (ii) SEACOR will have performed and complied in all material
respects with all agreements and conditions required by this Agreement
to be performed or complied with by SEACOR prior to or on the Closing
Date, except to the extent any such representation or warranty or
performance or compliance, as the case may be, is qualified by
materiality or by reference to the term "Material Adverse Effect", in
which case such representation or warranty or performance or
compliance shall be true and correct in all respects.
(b) There shall not have occurred any event or circumstance
that shall have resulted in or is reasonably likely to result in a
Material Adverse Effect with respect to the SEACOR Affiliated Group
from the date of the SEACOR Latest Balance Sheet to the Closing Date;
provided, however, that a decline in the price per share of SEACOR
-------- -------
Common Stock on the NASDAQ Stock Market shall not in and of itself
constitute a Material Adverse Effect.
(c) The waiting periods (and any extensions thereof)
applicable to the Merger under the HSR Act shall have been terminated
or shall have expired.
(d) All governmental and other material consents and
approvals, if any, necessary to permit the consummation of the
transactions contemplated by this Agreement shall have been received.
(e) The receipt by McCall of a certificate executed by the
Chief Executive Officer or Chief Financial Officer of SEACOR dated the
Closing Date, certifying that the conditions specified in Section
7.3(a) and (b) hereof have been fulfilled.
(f) SEACOR will have delivered to McCall, each dated as of
a date not earlier than five days prior to the Closing Date,
certificates from the appropriate governmental official to the effect
that SEACOR and Sub are in good standing in their respective
jurisdictions of incorporation and listing all charter documents of
such Persons on file.
(g) The receipt by McCall of an opinion from Weil, Gotshal
& Manges LLP, counsel to SEACOR, and Lugenbuhl, Burke, Wheaton, Peck,
Rankin & Hubbard, Louisiana counsel to SEACOR, which, together, cover
the matters set forth in Exhibit I attached hereto.
<PAGE>
(h) SEACOR shall have executed and delivered the Letter of
Employment, the Investment and Registration Rights Agreement, the
Indemnification Agreement, and the Escrow Agreement.
Section 7.4. Waiver of Conditions. Any condition to a party's
--------------------
obligation to effect the Merger hereunder may be waived by that party
in writing.
ARTICLE 8.
POST-CLOSING COVENANTS
Section 8.1. Indemnification of Directors and Officers of
--------------------------------------------
McCall.
------
(a) From and after the Effective Time of the Merger, SEACOR
agrees to indemnify and hold harmless, and to cause the Surviving
Corporation to honor its separate indemnification obligations to, each
person who is an officer or director of McCall (or a member of the
McCall Group serving at the request of McCall) on the date of this
Agreement or has served as such an officer or director at any time
since January 1, 1993 (together with those persons discussed in the
last sentence of this subsection, an "Indemnified Person") from and
against all damages, liabilities, judgments and claims (and related
expenses including, but not limited to reasonable attorneys' fees and
amounts paid in settlement) based upon or arising from his or her
capacity as an officer or director of McCall (or a member of the
McCall Group serving at the request of McCall), to the same extent he
or she would have been indemnified under the Certificate of
Incorporation or By-laws of McCall or under Section 83 of the LBCL as
such documents were in effect on the date of this Agreement.
(b) The rights to indemnification granted by this Section
8.1 are subject to the following limitations: (i) the total aggregate
indemnification to be provided by SEACOR and/or the Surviving
Corporation pursuant to this Section 8.1 will not exceed, as to all of
the Indemnified Persons described herein as a group, the dollar amount
referred to in Clause (1) of the final sentence of Section 3.1(a), and
SEACOR shall have no responsibility to any Indemnified Person for the
manner in which such sum is allocated among that group (but the
Indemnified Persons may seek reallocation among themselves); (ii)
amounts otherwise required to be paid by SEACOR to an Indemnified
Person pursuant to this Section 8.1 shall be reduced by any amounts
that such Indemnified Person has recovered by virtue of the claim for
which indemnification is sought and SEACOR shall be reimbursed for any
amounts
<PAGE>
paid by SEACOR that such Indemnified Person subsequently recovers by
virtue of such claim; (iii) no Indemnified Person shall be entitled to
indemnification for any claim made or threatened prior to the Closing
Date of which such Indemnified Person or McCall was aware but did not
promptly disclose to SEACOR prior to the execution of this Agreement;
(iv) any claim for indemnification pursuant to this Section 8.1 must
be submitted in writing to the Chief Executive Officer of SEACOR
promptly upon such Indemnified Person becoming aware of such claim
and, in no event, more than six years from the Effective Date,
provided that any such failure to advise promptly has a prejudicial
effect on SEACOR; (v) an Indemnified Person shall not settle any claim
for which indemnification is provided herein without the prior written
consent of SEACOR; and (vi) no indemnification is provided pursuant to
this Section 8.1 in respect of any Losses (as defined in the
Indemnification Agreement) to which SEACOR or any other indemnified
party is entitled to indemnification under the Indemnification
Agreement.
Section 8.2. Publication of Post-Merger Results. SEACOR shall
----------------------------------
use its reasonable best efforts to cause financial results covering at
least thirty days of post-Merger combined operations to be published
as soon as practicable after the passage of such thirty day period.
Section 8.3. Employee Benefits. Following the consummation of
-----------------
the Merger, the SEACOR Affiliated Group shall arrange to make
available to the employees of McCall the benefits listed on Schedules
4.17(a) and 4.17(b) in accordance with the terms of such benefit
plans, policies or arrangements; provided, that this covenant shall
not prohibit the SEACOR Affiliated Group from modifying or rescinding
such benefits thereafter to the extent such modification or rescission
is generally applicable to similarly situated SEACOR Affiliated Group
employees. McCall employees will receive credit for their prior
service with the McCall Group for purposes of eligibility, vesting
and, without duplication, benefit accruals with respect to any SEACOR
Affiliated Group plan in which they participate to the same extent
such prior service was credited under similar benefit plans maintained
by the McCall Group.
ARTICLE 9.
TERMINATION
Section 9.1. Termination. This Agreement may be terminated and
-----------
the Merger contemplated herein abandoned at any time before the
Effective Time:
(a) By the mutual consent of the Boards of Directors of
McCall and SEACOR.
<PAGE>
(b) By the Board of Directors of either McCall or SEACOR if
there has been a material breach by the other of any representation or
warranty contained in this Agreement or of any covenant contained in
this Agreement, which in either case cannot be, or has not been, cured
within 15 days after written notice of such breach is given to the
party committing such breach, provided that the right to effect such
cure shall not extend beyond the date set forth in Section 9.1(c)
below.
(c) By the Board of Directors of either McCall or SEACOR if
(i) all conditions to Closing required by Article 7 hereof have not
been met by or waived by November 20, 1996 (the "Termination Date"),
(ii) any such condition cannot be met by such date and has not been
waived by each party in whose favor such condition inures, or (iii)
the Merger has not occurred by such date; provided, however, that
-------- -------
neither McCall nor SEACOR shall be entitled to terminate this
Agreement pursuant to this subparagraph (c) if such party is in
willful and material violation of any of its representations,
warranties or covenants in this Agreement.
(d) If any governmental authority shall have issued an
order, decree or ruling or taken any other action permanently
enjoining, restraining or otherwise prohibiting the Merger and such
order, decree, ruling or other action shall have become final and
nonappealable.
Section 9.2. Effect of Termination. Upon termination of this
---------------------
Agreement pursuant to this Article 9, this Agreement shall be void and
of no effect and shall result in no obligation of or liability to any
party or their respective directors, officers, employees, agents or
shareholders, unless such termination was the result of an intentional
breach of any representation, warranty or covenant in this Agreement
in which case the party who breached the representation, warranty or
covenant shall be liable to the other party for damages, and all costs
and expenses incurred in connection with the preparation, negotiation,
execution and performance of this Agreement.
ARTICLE 10.
MISCELLANEOUS
Section 10.1. Notices. All notices hereunder must be in writing
-------
and will be deemed to have been duly given upon receipt of hand
delivery; certified or registered mail; return receipt requested; or
telecopy transmission with confirmation of receipt:
<PAGE>
(a) If to SEACOR:
SEACOR Holdings, Inc.
1370 Avenue of the Americas
New York, New York 10019
Attention: Charles Fabrikant
with a copy to: Randall Blank
and to:
Weil Gotshal & Manges LLP
767 Fifth Avenue
New York, New York 10153
Attention: David E. Zeltner, Esq.
(b) If to McCall:
McCall's Boat Rentals, Inc.
432 Marshall Street
Cameron, Louisiana 70631
Attention: Norman F. McCall
with a copy to:
Stockwell, Sievert, Viccellio, Clements & Shaddock, L.L.P.
First National Bank Building
One Lakeside Plaza
P.O. Box 2900
Lake Charles, Louisiana 70602-2900
Attention: William E. Shaddock, Esq.
<PAGE>
and to:
Jones, Walker, Waechter, Poitevent, Carrere
& Denegre L.L.P.
Place St. Charles
201 St. Charles Avenue
51st Floor
New Orleans, Louisiana 70170-5100
Attention: Carl C. Hanemann, Esq.
Telecopy No.: (504) 582-8398
Such names and addresses may be changed by written notice to each
person listed above.
Section 10.2. Governing Law. This Agreement shall be governed
-------------
by, construed and interpreted in accordance with the laws of the State
of Louisiana, regardless of the laws that might otherwise govern under
applicable principles of conflicts of laws thereof.
Section 10.3. Counterparts. This Agreement may be executed in
------------
counterparts, each of which will be deemed an original but all of
which together will constitute one and the same instrument.
Section 10.4. Interpretation. (a) When a reference is made in
--------------
this Agreement to a Section, Exhibit or Schedule, such reference shall
be to a Section of, or an Exhibit or Schedule to, this Agreement
unless otherwise indicated. The table of contents and headings
contained in this Agreement are for reference purposes only and shall
not affect in any way the meaning or interpretation of this Agreement.
Whenever the words "include," "includes" or "including" are used in
this Agreement, they shall be deemed to be followed by the words
"without limitation."
Section 10.5. Entire Agreement; Severability. (a) This
------------------------------
Agreement, including the Exhibits and Schedules hereto, embodies the
entire agreement and understanding of the parties hereto in respect of
the subject matter contained herein. This Agreement supersedes all
prior agreements and understandings (whether written or oral) between
the parties with respect to such subject matter.
(b) If any provision of this Agreement is determined to be
invalid or unenforceable, in whole or in part, it is the parties'
intention that such determination will not
<PAGE>
be held to affect the validity or enforceability of any other
provision of this Agreement, which provisions will otherwise remain in
full force and effect.
Section 10.6. Amendment and Modification. This Agreement may be
--------------------------
amended or modified only by written agreement of the parties hereto;
provided, however, that there shall be made no amendment that by law
-------- -------
requires approval by the stockholders of a party hereto without the
approval of such stockholders.
Section 10.7. Extension; Waiver. At any time prior to the
-----------------
Effective Time of the Merger, the parties may (a) extend the time for
the performance of any of the obligations or other acts of the other
parties, (b) waive any inaccuracies in the representations and
warranties contained in this Agreement or in any document delivered
pursuant to this Agreement or (c) waive compliance with any of the
agreements or conditions contained in this Agreement. The failure of
a party to insist upon strict adherence to any term of this Agreement
on any occasion shall not be considered a waiver or deprive that party
of the right thereafter to insist upon strict adherence to that term
or any other term of this Agreement. No waiver of any breach of this
Agreement shall be held to constitute a waiver of any other or
subsequent breach. Any waiver must be in writing.
Section 10.8. Binding Effect; Benefits. This Agreement will
------------------------
inure to the benefit of and be binding upon the parties hereto and
their respective successors and assigns. Nothing in this Agreement,
express or implied, is intended to confer on any Person other than the
parties hereto and their respective successors and assigns (and, to
the extent provided in Section 8.1, the Indemnified Persons and their
successors and assigns) any rights, remedies, obligations or
liabilities under or by reason of this Agreement.
Section 10.9. Assignability. This Agreement is not assignable
-------------
by any party hereto without the prior written consent of the other
parties.
Section 10.10. Expenses. Each of the parties hereto shall pay
--------
all of its own expenses relating to the transactions contemplated by
this Agreement, including without limitation the fees and expenses of
its own financial, legal and tax advisors.
Section 10.11. Gender and Certain Definitions. All words used
------------------------------
herein, regardless of the number and gender specifically used, shall
be deemed and construed to include any other number, singular or
plural, and any other gender, masculine, feminine or neuter, as the
context requires.
<PAGE>
IN WITNESS WHEREOF, the parties hereto have duly executed this
Agreement as of the date first written above.
SEACOR HOLDINGS, INC.
By:/s/ Milton Rose
------------------------------
Name: Milton Rose
Title: Vice-President
SEACOR SUPPORT SERVICES, INC.
By:/s/ Milton Rose
------------------------------
Name: Milton Rose
Title: President
MCCALL SUPPORT VESSELS, INC.
By:/s/ Norman McCall
-----------------------------
Name: Norman McCall
Title: President
<PAGE>
STATE OF LOUISIANA
PARISH OF CALCASIEU
On this 30th day of May, 1996, before me, a Notary Public in
and for the State and County aforesaid, personally appeared
Milton Rose, known by me to be the person of the above name
and an officer of SEACOR Holdings, Inc. duly authorized to execute
this Agreement and Plan of Merger on behalf of such corporation, who
signed and executed the foregoing instrument on behalf of such
corporation.
/s/ Stewart Peck
-----------------------------------
Notary Public
My Commission Expires: at death
-------------
STATE OF LOUISIANA
PARISH OF CALCASIEU
On this 30th day of May, 1996, before me, a Notary Public in
and for the State and County aforesaid, personally appeared
Milton Rose, known by me to be the person of the above name
and an officer of SEACOR Support Services, Inc. duly authorized to
execute this Agreement and Plan of Merger on behalf of such
corporation, who signed and executed the foregoing instrument on
behalf of such corporation.
/s/ Stewart Peck
-----------------------------------
Notary Public
My Commission Expires: at death
-------------
STATE OF LOUISIANA
PARISH OF CALCASIEU
On this 30th day of May, 1996, before me, a Notary Public in
and for the State and Parish aforesaid, personally appeared
Norman McCall, known by me to be the person of the above name
and an officer of McCall Support Vessels, Inc. duly authorized to
execute this Agreement and Plan of Merger on behalf of such
corporation, who signed and executed the foregoing instrument on
behalf of such corporation.
/s/ Stewart Peck
-----------------------------------
Notary Public
My Commission Is For Life
<PAGE>
CERTIFICATION
I, Mary Liles, Assistant Secretary of SEACOR Support Services,
Inc., a Louisiana corporation, (the "Corporation"), hereby certify
that the above and foregoing Agreement and Plan of Merger dated as of
May 31, 1996, and the execution thereof by the officer designated on
behalf of the corporation, was approved by Unanimous Written Consent
of the Board of Directors of the Corporation dated May 31, 1996, and
by all of the owners and holders of record of the issued and
outstanding shares of stock of the Corporation by Unanimous Written
Consent of Shareholders dated May 31, 1996, copies of which Unanimous
Written Consents have been filed in the records of proceedings and
minutes of the Board of Directors and shareholders of the Corporation.
May 31, 1996
/s/ Mary Liles
-------------------------
Assistant Secretary
I, Joyce C. McCall, Secretary of McCall Support Vessels,
Inc., a Louisiana corporation, (the "Corporation"), hereby certify
that the above and foregoing Agreement and Plan of Merger dated as of
May 31, 1996, and the execution thereof by the officer designated on
behalf of the corporation, was approved by Unanimous Written Consent
of the Board of Directors of the Corporation dated May 31, 1996, and
by all of the owners and holders of record of the issued and
outstanding shares of stock of the Corporation by Unanimous Written
Consent of Shareholders dated May 31, 1996, copies of which Unanimous
Written Consents have been filed in the records of proceedings and
minutes of the Board of Directors and shareholders of the Corporation.
May 31, 1996
/s/ Joyce C. McCall
-------------------------
Secretary
EXHIBIT 2.3
AGREEMENT AND PLAN OF MERGER
by and among
SEACOR HOLDINGS, INC.,
SEACOR N.F., INC.
and
N.F. McCALL CREWS, INC.
Dated as of May 31, 1996
<PAGE>
TABLE OF CONTENTS
Page
ARTICLE 1.
DEFINITIONS . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Section 1.1. Definitions. . . . . . . . . . . . . . . . . . 1
ARTICLE 2.
THE CLOSING; THE MERGER; EFFECTS OF THE MERGER. . . . . . . . . . 9
Section 2.1. Closing. . . . . . . . . . . . . . . . . . . . 9
Section 2.2. The Merger . . . . . . . . . . . . . . . . . . 9
Section 2.3 Effects of the Merger; Certificate and By-laws;
Directors and Officers. . . . . . . . . . . 9
ARTICLE 3.
MERGER CONSIDERATION; CONVERSION OF SHARES . . . . . . . . . . . 10
Section 3.1. Conversion of Shares . . . . . . . . . . . . 10
Section 3.2. Exchange of Stock Certificates; Record Date . 11
Section 3.3. No Further Rights in McCall Common Stock . . 12
Section 3.4. Determination of Final Adjusted Net Assets. . 12
Section 3.5. Registration Rights Agreement; Restrictive
Endorsement. . . . . . . . . . . . . . . . 13
ARTICLE 4.
REPRESENTATIONS AND WARRANTIES OF MCCALL . . . . . . . . . . . . 14
Section 4.1. Organization and Citizenship . . . . . . . . 14
Section 4.2. Affiliated Entities . . . . . . . . . . . . . 14
Section 4.3. Capitalization . . . . . . . . . . . . . . . 14
Section 4.4. Authority; Enforceable Agreement . . . . . . 15
Section 4.5. No Conflicts or Consents . . . . . . . . . . 15
Section 4.6. Corporate Documents . . . . . . . . . . . . . 16
Section 4.7. Financial Statements; Liabilities . . . . . . 16
Section 4.8. Accounts Receivable . . . . . . . . . . . . . 17
Section 4.9. Absence of Certain Changes or Events . . . . 17
Section 4.10. Contracts . . . . . . . . . . . . . . . . . . 19
Section 4.11. Properties and Leases . . . . . . . . . . . . 19
Section 4.12. Condition of McCall's Assets . . . . . . . . 21
Section 4.13. Vessels . . . . . . . . . . . . . . . . . . . 21
Section 4.14. Accounting Matters . . . . . . . . . . . . . 21
Section 4.15. Suppliers and Customers . . . . . . . . . . . 21
Section 4.16. Employee . . . . . . . . . . . . . . . . . . 21
Section 4.17. Employee Benefit Plans . . . . . . . . . . . 22
Section 4.18. Tax Matters . . . . . . . . . . . . . . . . . 25
<PAGE>
Page
----
Section 4.19. Litigation. . . . . . . . . . . . . . . . . . 27
Section 4.20. Insurance . . . . . . . . . . . . . . . . . . 27
Section 4.21. Environmental Compliance . . . . . . . . . . 28
Section 4.22. Compliance With Law; Permits . . . . . . . . 29
Section 4.23. Interests in Clients, Suppliers, Etc. . . . . 29
Section 4.24. Transactions With Related Parties . . . . . . 29
Section 4.25. Broker's and Finder's Fee . . . . . . . . . . 30
Section 4.26. Disclosure . . . . . . . . . . . . . . . . . 30
Section 4.27. Intellectual Property . . . . . . . . . . . . 30
ARTICLE 5.
REPRESENTATIONS AND WARRANTIES OF SEACOR AND SUB . . . . . . . . 31
Section 5.1. Organization and Citizenship . . . . . . . . 31
Section 5.2. Capitalization . . . . . . . . . . . . . . . 31
Section 5.3. Authority; Enforceable Agreements . . . . . . 32
Section 5.4. No Conflicts or Consents . . . . . . . . . . 32
Section 5.5. Corporate Documents . . . . . . . . . . . . . 33
Section 5.6. SEC Documents; Financial Statements;
Liabilities . . . . . . . . . . . . . . . 33
Section 5.7. Absence of Certain Changes or Events . . . . 34
Section 5.8. Contracts . . . . . . . . . . . . . . . . . . 34
Section 5.9. Litigation . . . . . . . . . . . . . . . . . 35
Section 5.10. Legality of SEACOR Common Stock . . . . . . . 35
Section 5.11. Broker's and Finder's Fee . . . . . . . . . . 35
ARTICLE 6.
PRE-CLOSING COVENANTS . . . . . . . . . . . . . . . . . . . . . . 35
Section 6.1. Hart-Scott-Rodino; Cooperation and Best
Efforts . . . . . . . . . . . . . . . . . 35
Section 6.2. Conduct of Business By Both Parties Prior to
the Closing Date . . . . . . . . . . . . . 36
Section 6.3. Conduct of Business By McCall Prior to the
Closing Date . . . . . . . . . . . . . . . 37
Section 6.4. Press Releases . . . . . . . . . . . . . . . 39
Section 6.5. Cooperation . . . . . . . . . . . . . . . . . 39
Section 6.6. Access to Information and Confidentiality . . 39
Section 6.7. Consultation and Reporting . . . . . . . . . 40
Section 6.8. Update Schedules . . . . . . . . . . . . . . 40
ARTICLE 7.
CLOSING CONDITION . . . . . . . . . . . . . . . . . . . . . . . . 40
Section 7.1. Condition Applicable to All Parties . . . . . 40
Section 7.2. Conditions to SEACOR's Obligations . . . . . 41
Section 7.3. Conditions to McCall's Obligations . . . . . 43
Section 7.4. Waiver of Conditions . . . . . . . . . . . . 44
<PAGE>
Page
----
ARTICLE 8.
POST-CLOSING COVENANTS . . . . . . . . . . . . . . . . . . . . . 44
Section 8.1. Indemnification of Directors and Officers of
McCall . . . . . . . . . . . . . . . . . . 44
Section 8.2. Publication of Post-Merger Results . . . . . 45
Section 8.3. Employee Benefits . . . . . . . . . . . . . . 46
ARTICLE 9.
TERMINATION . . . . . . . . . . . . . . . . . . . . . . . . . . . 46
Section 9.1. Termination . . . . . . . . . . . . . . . . . 46
Section 9.2. Effect of Termination . . . . . . . . . . . . 47
ARTICLE 10.
MISCELLANEOUS . . . . . . . . . . . . . . . . . . . . . . . . . . 47
Section 10.1. Notices . . . . . . . . . . . . . . . . . . . 47
Section 10.2. Governing Law . . . . . . . . . . . . . . . . 48
Section 10.3. Counterparts . . . . . . . . . . . . . . . . 48
Section 10.4. Interpretation . . . . . . . . . . . . . . . 49
Section 10.5. Entire Agreement; Severability . . . . . . . 49
Section 10.6. Amendment and Modification . . . . . . . . . 49
Section 10.7. Extension; Waiver . . . . . . . . . . . . . . 49
Section 10.8. Binding Effect; Benefits . . . . . . . . . . 49
Section 10.9. Assignability . . . . . . . . . . . . . . . . 50
Section 10.10. Expenses . . . . . . . . . . . . . . . . . . 50
Section 10.11. Gender and Certain Definitions . . . . . . . 50
<PAGE>
EXHIBITS AND SCHEDULES
EXHIBITS
Exhibit A . . . . . . . . . . . Certificate of Merger
Exhibit B . . . . . . . . . . . Form of Letter of Transmittal
Exhibit C . . . . . . . . . . . Investment and Registration Rights
Agreement
Exhibit D . . . . . . . . . . . Opinion of McCall's Counsel
Exhibit E . . . . . . . . . . . Indemnification Agreement
Exhibit F . . . . . . . . . . . Form of Letter of Employment with
Norman F. McCall
Exhibit G . . . . . . . . . . . Opinion of SEACOR's Counsel
SCHEDULES(1)
Schedule 3.5(a) . . . . . . . . McCall Stockholders
Schedule 4.5(a) . . . . . . . . Certain Conflicts
Schedule 4.5(b) . . . . . . . . Consents/Approval Required
Schedule 4.7 . . . . . . . . . Disclosed Liabilities
Schedule 4.8 . . . . . . . . . Accounts Receivable
Schedule 4.9 . . . . . . . . . Certain Changes
Schedule 4.10(a) . . . . . . . Certain Contracts
Schedule 4.10(b) . . . . . . . Material Contracts
Schedule 4.11(a) . . . . . . . Encumbrances on Property
Schedule 4.11(c) . . . . . . . Above Market Rate Leases
Schedule 4.11(d) . . . . . . . Real Property and Leases
Schedule 4.15 . . . . . . . . . Suppliers and Customers
Schedule 4.16(a) . . . . . . . Certain Employees
Schedule 4.17(a) . . . . . . . Employee Plans
Schedule 4.17(b) . . . . . . . Employee Benefit Arrangements
Schedule 4.17(c) . . . . . . . Modifications to Employee Benefit
Plans and Arrangements
Schedule 4.17(j) . . . . . . . Litigation Re Employee Plan or
Benefit Arrangements
Schedule 4.17(k) . . . . . . . Certain Employees with Rights to
Certain Entitlements
Schedule 4.17(l) . . . . . . . Benefits to Non-employee
Stockholders and Directors
Schedule 4.18(d) . . . . . . . Material Tax Elections
Schedule 4.18(f) . . . . . . . Returns Filed in State and Foreign
Jurisdictions
Schedule 4.19 . . . . . . . . . Litigation
Schedule 4.20(a) . . . . . . . Insurance Policies
_____________________
(1) All the above Schedules relate to McCall unless
otherwise indicated.
<PAGE>
Schedule 4.20(b) . . . . . . . Protection or Indemnity Clubs
Schedule 4.21(a) . . . . . . . Noncompliance with Environmental
Laws
Schedule 4.21(b) . . . . . . . Environmental Administrative or
Judicial Proceedings
Schedule 4.21(c) . . . . . . . Above Ground and Underground Tanks
Schedule 4.21(d) . . . . . . . Hazardous Materials
Schedule 4.23 . . . . . . . . . Officers'/Directors' Relationships
with Competitors of McCall
Schedule 4.24(a) . . . . . . . Interested Officers'/Directors'
Transactions
Schedule 4.24(b) . . . . . . . Claims of Certain Officers and
Directors
Schedule 4.27 . . . . . . . . . Intellectual Property
Schedule 5.8 . . . . . . . . . Material Contracts of SEACOR
Schedule 5.9 . . . . . . . . . Litigation Involving SEACOR
Schedule 6.3(e) . . . . . . . . Indebtedness
Schedule 6.3(f) . . . . . . . . New Capital Expenditures
<PAGE>
AGREEMENT AND PLAN OF MERGER
AGREEMENT AND PLAN OF MERGER dated as of May 31, 1996, by and
among SEACOR Holdings, Inc., a Delaware corporation ("SEACOR"), SEACOR
N.F., Inc., a Louisiana corporation and a direct, wholly-owned
subsidiary of SEACOR ("Sub"), and N.F. McCall Crews, Inc., a Louisiana
corporation ("McCall").
W I T N E S S E T H:
-------------------
WHEREAS, the respective Boards of Directors of SEACOR, Sub and
McCall have determined that it is desirable and in the best interests
of the parties to this Agreement and their respective stockholders to
provide for the merger of Sub into McCall (the "Merger"), with the
result that McCall shall become a wholly-owned subsidiary of SEACOR
pursuant to the terms and subject to conditions hereof;
WHEREAS, for Federal income tax purposes, it is intended that the
Merger shall qualify as a reorganization within the meaning of Section
368(a) of the Internal Revenue Code of 1986, as amended (the "Code"),
and the rules and regulations thereunder;
NOW, THEREFORE, in consideration of the representations,
warranties and covenants contained herein, the parties agree as
follows:
ARTICLE 1.
DEFINITIONS
Section 1.1.Definitions. As used in this Agreement, the following
-----------
terms when capitalized have the meanings indicated:
"Adjusted Net Assets" shall mean an amount equal to the assets, of
McCall (including, but not limited to, cash and cash equivalents,
marketable securities, deposits, accounts receivable and prepaid
expenses) determined in accordance with GAAP (except as provided in
the provisos to this definition) reduced by the following: (i) the
book value of all personal property (including, without limitation,
vehicles, office equipment and furniture) and improvements; (ii)
appropriate reserves under GAAP; (iii) investments in any of the
Companies or SEAMAC LLC; and (iv) all liabilities (including notes
payable to current stockholders of McCall) as determined in accordance
with GAAP; provided, however, that Adjusted Net Assets shall be
-------- -------
calculated on the assumption that if McCall currently accounts on a
cash
<PAGE>
basis, it converted to accounting on an accrual basis (and any Tax
liability currently payable as a result of such conversion shall be
taken into account).
"Affiliate" shall have the meaning ascribed to such term by Rule
12b-2 promulgated under the Exchange Act.
"Agreement" shall mean this Agreement and Plan of Merger,
including the Schedules and Exhibits hereto, all as amended or
otherwise modified from time to time.
"Arbitrator" shall have the meaning ascribed to such term in
Section 3.4(b).
"Average Market Price" shall mean $35.142, which represents the
average of the daily closing sale price per share of SEACOR Common
Stock on the NASDAQ Stock Market for the 60 consecutive calendar days
that ended on April 16, 1996, the second trading day prior to the date
of signing of a letter of intent with respect to the transactions
contemplated hereby.
"Benefit Arrangement" means any employment, severance or similar
contract, or any other contract, plan, policy or arrangement (whether
or not written) providing for compensation, bonus, profit-sharing,
stock option or other stock related rights or other forms of incentive
or deferred compensation, vacation benefits, insurance coverage
(including any self-insured arrangement), health or medical benefits,
disability benefits, severance benefits and post-employment or
retirement benefits (including compensation, pension, health, medical
or life insurance benefits), other than the Employee Plans, that (A)
is maintained, administered or contributed to by the employer or the
employer has any obligation or liability (contingent or otherwise) and
(B) covers any employee or former employee or director of the
employer.
"Business Day" shall mean a day other than a Saturday, a Sunday
or a day on which national banks or the NASDAQ Stock Market is closed.
"Certificate of Merger" shall have the meaning ascribed to such
term in Section 2.1(b).
"Closing" shall have the meaning ascribed to such term in Section
2.1(a).
"Closing Balance Sheet" shall have the meaning ascribed to such
term in Section 3.4(a).
<PAGE>
"Closing Date" shall have the meaning ascribed to such term in
Section 2.1(a).
"Code" shall have the meaning ascribed to such term in the
premises to this Agreement.
"Companies" shall mean McCall Enterprises, Inc., McCall's Boat
Rentals, Inc., Gulf Marine Transportation, Inc., Carroll McCall, Inc.,
McCall Marine Services, Inc., Cameron Boat Rentals, Inc., Gladys
McCall, Inc., Cameron Crews, Inc., Philip A. McCall, Inc., N.F. McCall
Crews, Inc., McCall Crewboats, L.L.C. and McCall Support Vessels, Inc.
"Contract" means any contract, charter, agreement, lease,
indenture, note, bond, instrument, lien, conditional sales contract,
mortgage, license, franchise, insurance policy, commitment or other
binding understanding or arrangement, whether written or oral.
"DOJ" shall have the meaning ascribed to such term in Section
6.1(a).
"Effective Date" shall have the meaning ascribed to such term in
Section 2.1(b).
"Effective Time" shall have the meaning ascribed to such term in
Section 2.1(b).
"Employee Plan" means an employee benefit plan or arrangement as
defined in Section 3(3) of ERISA, that is maintained, administered or
contributed to by the employer or the employer has any obligation or
liability (contingent or otherwise) and covers any employee or former
employee of the employer.
"Environmental Laws" means all federal, state, local and foreign
laws, common law duties, ordinances, codes, regulations and other
legally binding obligations relating to pollution, the protection of
the environment, human health and safety or natural resources,
including, without limitation, all such laws governing the operation
of business, the generation, use, collection, treatment, storage,
transportation, recovery, removal, discharge or disposal of Hazardous
Substances or wastes and all such laws imposing record-keeping,
maintenance, testing, inspection, notification and reporting
requirements with respect to Hazardous Substances.
"Environmental Permits" shall have the meaning ascribed to such
term in Section 4.21(a).
<PAGE>
"ERISA" means the Employee Retirement Income Security Act of
1974, as amended, and the applicable regulations promulgated
thereunder.
"Estimated Adjusted Net Assets" shall mean $-11,085.
"Exchange Act" shall mean the Securities Exchange Act of 1934, as
amended.
"Final Adjusted Net Assets" shall have the meaning ascribed to
such term in Section 3.4(b).
"Fractional Payment" shall have the meaning ascribed to such term
in Section 3.1(c).
"FTC" shall have the meaning ascribed to such term in Section
6.1(a).
"GAAP" shall mean generally accepted accounting principles in the
United States of America as in effect from time to time set forth in
the opinions and pronouncements of the Accounting Principles Board and
the American Institute of Certified Public Accountants and the
statements and pronouncements of the Financial Accounting Standards
Board, or in such other statements by such other entity as may be in
general use by significant segments of the accounting profession,
which are applicable to the circumstances as of the date of
determination.
"Hazardous Substances" means any and all wastes, materials or
substances defined, regulated or classified as "hazardous substances,"
"hazardous wastes," "hazardous constituents" or words of similar
meaning in (i) the Comprehensive Environmental Response, Compensation
and Liability Act of 1980, 42 U.S.C. Sections 9601 et seq., as amended by
-- ---
the Superfund Amendments and Reauthorization Act of 1986, and any
amendments thereto and regulations thereunder; (ii) the Resource
Conservation and Recovery Act of 1976, 42 U.S.C. Sections 6901 et seq., as
-- ---
amended by the Hazardous and Solid Waste Amendments of 1984, and any
amendments thereto and regulations thereunder; (iii) the Oil Pollution
Act of 1990, 33 U.S.C. Sections 2701 et seq., and any amendments thereto
-- ---
and regulations thereunder; or (iv) any other Environmental Law.
"HSR Act" shall mean the Hart-Scott-Rodino Antitrust Improvements
Act of 1976, as amended.
"HSR Reports" shall mean the premerger notification and report
form to be filed under the HSR Act.
<PAGE>
"Indemnification Agreement" shall have the meaning ascribed to
such term in Section 7.2(j).
"Indemnified Person" shall have the meaning ascribed to such term
in Section 8.1(a).
"Intellectual Property Right" means any trademark, service mark,
trade name, patent, trade secret, copyright, know-how or other type of
intellectual property right (including any registrations or
applications for registration of any of the foregoing).
"Investment and Registration Rights Agreement" shall have the
meaning ascribed to such term in Section 3.5(a).
"IRS" shall have the meaning ascribed to such term in Section
4.17(a).
"Knowledge of McCall" shall mean the actual knowledge of Norman
F. McCall, Joyce C. McCall, Joseph N. McCall, William Johnston, or
Stephanie Richard without any obligation to conduct any inquiry
outside the ordinary course of business.
"Knowledge of SEACOR" shall mean the actual knowledge of Charles
Fabrikant, Randall Blank or Milton R. Rose (all being executive
officers of SEACOR) without any obligation to conduct any inquiry
outside the ordinary course of business.
"LBCL" shall mean the Business Corporation Law of the State of
Louisiana, as amended.
"Letter of Employment" shall have the meaning ascribed to such
term in Section 7.2(k).
"Liens" shall mean pledges, liens, encumbrances, rights in rem,
defects, leases, licenses, equities, conditional sales contracts,
charges, claims, encumbrances, security interests, easements,
restrictions, chattel mortgages, mortgages or deeds of trust, of any
kind or nature whatsoever.
"Material Adverse Effect" shall mean, with respect to any party,
a material adverse effect on the financial condition, results of
operations, business or prospects of such party.
"Material Contract" shall have the meaning ascribed to such term
in Section 5.8.
<PAGE>
"McCall Audited Financial Statements" shall mean the audited
combined balance sheet and related combined statements of income,
stockholders' equity and cash flows, and the related notes thereto, of
the Companies as of and for the years ended December 31, 1994 and
1995.
"McCall Common Stock" shall mean shares of common stock, $10.00
par value per share, of McCall.
"McCall Financial Statements" shall mean the McCall Audited
Financial Statements and the McCall Interim Financial Statements,
collectively.
"McCall Interim Financial Statements" shall mean the unaudited
combined balance sheet, and the related unaudited combined statements
of income and cash flows, of the Companies as of and for the three-
month period ended March 31, 1996.
"McCall Latest Balance Sheet" shall mean the combined balance
sheet of the Companies included in the McCall Interim Financial
Statements.
"McCall Representative" shall mean Norman F. McCall, who has been
appointed by the Board of Directors of McCall and by the unanimous
written consent of the McCall Stockholders as their representative for
purposes of Section 3.4 hereof or any successor as McCall
Representative appointed in accordance with the terms of the
Indemnification Agreement.
"McCall Stockholders" shall have the meaning ascribed to such
term in Section 3.5(a).
"Merger" shall have the meaning ascribed to such term in the
premises to this Agreement.
"Merger Consideration" shall have the meaning ascribed to such
term in Section 3.1(a).
"Multiemployer Plan" means a plan or arrangement as defined in
Section 4001(a)(3) and 3(37) of ERISA.
"Permitted Liens" shall mean any mechanic's, worker's,
materialmen's, maritime or other liens arising as a matter of law in
the ordinary course of business consistent with past practice.
"Person" shall mean an individual, firm, corporation, general or
limited partnership, limited liability company, limited liability
partnership, joint venture, trust, governmental
<PAGE>
authority or body, association, unincorporated organization or other
entity.
"Pre-Closing Periods" shall mean all tax periods ending at or
before the Effective Time and, with respect to any tax period that
includes but does not end at the Effective Time, the portion of such
period that ends at and includes the Effective Time.
"Registration Statement" shall mean the registration statement on
Form S-3 to be filed by SEACOR with the SEC for the purpose, among
other things, of registering the SEACOR Common Stock which will be
issued to the holders of McCall Capital Stock following consummation
of the Merger.
"Returns" shall mean all returns, reports, estimates,
declarations, information return, statement or other similar documents
relating to Taxes, including any schedule or attachment thereto, and
including any amendment thereof.
"SEACOR Affiliated Group" shall mean SEACOR, Sub and the other
subsidiaries of SEACOR.
"SEACOR Audited Financial Statements" shall mean the audited
consolidated balance sheets, and the related consolidated statements
of earnings, stockholders' equity and cash flows, and the related
notes thereto, of SEACOR and its subsidiaries as of and for the years
ended December 31, 1994 and 1995.
"SEACOR Common Stock" shall mean shares of common stock, $.01 par
value per share, of SEACOR.
"SEACOR Financial Statements" shall mean the SEACOR Audited
Financial Statements and the SEACOR Interim Financial Statements.
"SEACOR Interim Financial Statements" shall mean the unaudited
consolidated balance sheet, and the related consolidated unaudited
statements of earnings and cash flows, of SEACOR and its subsidiaries
as of and for the three month period ended March 31, 1996.
"SEACOR Latest Balance Sheet" shall mean the consolidated balance
sheet included in the SEACOR Interim Financial Statements.
"SEACOR SEC Documents" shall have the meaning ascribed to such
term in Section 5.6(a).
"SEC" shall mean the Securities and Exchange Commission of the
United States.
<PAGE>
"Securities Act" shall mean the Securities Act of 1933, as
amended.
"Surviving Corporation" shall mean McCall following the Effective
Time.
"Taxes" means all taxes, charges, fees, imposts, levies or other
assessments, including, without limitation, all net income, gross
receipts, sales, use, ad valorem, value added, transfer, franchise,
profits, inventory, capital stock, license, withholding, payroll,
employment, social security, unemployment, excise, severance, stamp,
occupation, property taxes, customs duties, fees, assessments and
charges of any kind whatsoever, together with any interest and any
penalties, additions to tax or additional amounts imposed by any
taxing authority (domestic or foreign) and any interest or penalties
imposed with respect to the filing, obligation to file or failure to
file any Return, and shall include any transferee liability in respect
of Taxes.
"Termination Date" shall have the meaning ascribed to such term
in Section 9.1(c).
"Total Merger Consideration" shall have the meaning ascribed to
such term in Section 3.1(a).
"Undisclosed Liabilities" shall have the meaning ascribed to such
term in Section 4.7.
ARTICLE 2.
THE CLOSING; THE MERGER; EFFECTS OF THE MERGER
Section 2.1. Closing. (a) The closing of the transactions
-------
contemplated herein (the "Closing") will take place, assuming
satisfaction or waiver of each of the conditions set forth in Article
7 hereof, at the offices of Stockwell, Sievert, Viccellio, Clements &
Shaddock at 1 Lakeside Plaza, 4th Floor, Lake Charles, Louisiana, at
10:00 A.M. (Louisiana Time) on a date to be mutually agreed upon
between the parties, which shall be no later than the third Business
Day after satisfaction of the latest to occur of the conditions set
forth in Article 7 (or waiver thereof by the party entitled to waive
the same), or if no date has been agreed to, on any date specified by
one party to the others upon five days' notice following satisfaction
(or waiver) of such conditions (the date of the Closing being referred
to herein as the "Closing Date").
(b) At the Closing, the parties shall (i)
deliver the documents, certificates and opinions required to be
delivered by Article 7 hereof, (ii) provide proof or indication
of the satisfaction or
<PAGE>
waiver of each of the conditions set forth in Article 7 hereof, (iii)
cause the appropriate officers of McCall to execute and deliver the
Certificate of Merger (the "Certificate of Merger") in substantially
the form attached hereto as Exhibit A and (iv) consummate the Merger
by causing to be filed the properly executed Certificate of Merger
with the Secretary of State of the State of Louisiana in accordance
with the provisions of the LBCL. The Merger shall be effective upon
the filing of the Certificate of Merger with the Secretary of State of
Louisiana (such date and time being hereinafter referred to
respectively as the "Effective Date" and the "Effective Time").
Section 2.2. The Merger. Subject to the terms and conditions
----------
of this Agreement, Sub shall be merged with and into McCall at the
Effective Time. Following the Merger, Sub shall cease to exist and
McCall shall be the Surviving Corporation and shall succeed to and
assume all the rights and obligations of Sub in accordance with the
LBCL.
Section 2.3 Effects of the Merger; Certificate and By-laws;
-----------------------------------------------
Directors and Officers. (a) The Merger shall have the effects
----------------------
specified in Section 115 of the LBCL.
(b) The Certificate of Incorporation of McCall, as amended
and restated and attached to the Certificate of Merger, shall be the
Certificate of Incorporation of the Surviving Corporation thereafter
unless and until amended in accordance with its terms and as provided
by law.
(c) The By-laws of Sub as in effect at the Effective Time
shall be the By-laws of the Surviving Corporation thereafter unless
and until amended in accordance with its terms, the terms of the
Certificate of Incorporation of the Surviving Corporation and as
provided by law.
(d) The directors and officers of Sub at the Effective Time
shall be the directors and officers of the Surviving Corporation
thereafter, each to hold a directorship or office in accordance with
the Certificate of Incorporation and By-laws of the Surviving
Corporation until their respective successors are duly elected and
qualified.
ARTICLE 3.
MERGER CONSIDERATION; CONVERSION OF SHARES
Section 3.1. Conversion of Shares. (a) At the Effective Time, by
--------------------
virtue of the Merger and without any further action on the part of
SEACOR, Sub, McCall, the Surviving Corporation or any of the
respective stockholders thereof: (i) each share of common stock
<PAGE>
of Sub issued and outstanding at the Effective Time shall be converted
into one share of the common stock, no par value per share, of the
Surviving Corporation; (ii) each issued share of McCall Common Stock
that is held in treasury by McCall shall be cancelled and no capital
stock of SEACOR or other consideration shall be delivered in exchange
therefor; and (iii) each share of McCall Common Stock issued and
outstanding at the Effective Time shall be converted into the right to
receive, and shall be exchanged for, such number of fully paid and
nonassessable shares of SEACOR Common Stock as shall be equal to the
quotient obtained by dividing (A) the Total Merger Consideration (as
hereinafter defined) by (B) 100, which is represented by McCall to be
--
the number of shares of McCall Common Stock outstanding on the date
hereof (the "Merger Consideration"). For purposes hereof, the "Total
Merger Consideration" shall mean a number of shares of SEACOR Common
Stock equal to the quotient obtained by dividing (1) the sum of
$25,000 plus the amount, if any, by which the Final Adjusted Net
Assets exceeds the Estimated Adjusted Net Assets or less the amount,
if any, by which the Estimated Adjusted Net Assets exceeds the Final
Adjusted Net Assets, by (2) the Average Market Price.
--
(b) Upon conversion of the shares of McCall Common Stock
into the right to receive the Merger Consideration in the manner
described in paragraph 3.1(a)(iii), each record holder of issued and
outstanding McCall Common Stock immediately prior to the Effective
Time shall have the right to receive a certificate representing such
whole number of shares of SEACOR Common Stock equal to the product of
(A) the Merger Consideration and (B) the number of issued and
outstanding shares of McCall Common Stock of which such Person is the
record holder immediately prior to the Effective Time.
(c) In lieu of the issuance of fractional shares of SEACOR
Common Stock, each holder of record of issued and outstanding shares
of McCall Common Stock as of the Effective Time shall be entitled to
receive a cash payment (without interest) (each a "Fractional Payment"
and, collectively, the "Fractional Payments") equal to the fair market
value of a fraction of a share of SEACOR Common Stock to which such
holder would be entitled to but for this provision. For purposes of
calculating such cash payment, the fair market value of a fraction of
a share of SEACOR Common Stock shall be such fraction multiplied by
the Average Market Price.
Section 3.2. Exchange of Stock Certificates; Record Date. (a)
-------------------------------------------
On or after the Effective Date, each holder of record of a certificate
or certificates that immediately prior to the Effective Time
represented issued and outstanding shares of
<PAGE>
McCall Common Stock whose shares were converted into the Merger
Consideration and, where applicable, a right to Fractional Payments
pursuant to Section 3.1 shall surrender such certificates for
cancellation to SEACOR, together with a letter of transmittal in the
form of Exhibit B hereto, duly executed. Such letter of transmittal
shall require each former record holder of a certificate or
certificates that represented McCall Common Stock to specify whether
such person is a citizen of the United States, within the meaning of
Section 2 of the Shipping Act, 1916, as amended, and as required by
the Merchant Marine Act of 1936, as amended, and the Merchant Marine
Act of 1920, as amended, and the regulations thereunder. In exchange
therefor, SEACOR shall issue pursuant to Section 3.2(b) to each such
holder who has appropriately confirmed that he is a United States
citizen a "United States Citizen" certificate, and to each other
holder, a "Non-Citizen" certificate, representing in each case the
number of whole shares of SEACOR Common Stock that such holder has the
right to receive pursuant to the provisions of Section 3.1(b), and pay
such holder any cash payment in lieu of any fractional share in
accordance with Section 3.1(c), and the certificates representing
shares of McCall Common Stock so surrendered shall forthwith be
cancelled.
(b) As soon as practicable after the determination of Final
Adjusted Net Assets, SEACOR shall deliver the Merger Consideration and
the Fractional Payments required under this Agreement to such Persons
who were record owners of the McCall Common Stock as of the close of
business on the Closing Date.
Section 3.3. No Further Rights in McCall Common Stock. As of
----------------------------------------
the Effective Time, all shares of McCall Common Stock shall no longer
be outstanding and shall automatically be cancelled and shall cease to
exist, and each holder of a certificate representing shares of McCall
Common Stock as of the Effective Time shall cease to have any rights
with respect thereto, except the right to receive the Merger
Consideration and the Fractional Payments upon surrender of such
certificate as provided in Section 3.2.
Section 3.4. Determination of Final Adjusted Net Assets.
------------------------------------------
(a) Within 60 days after the Closing Date, SEACOR shall prepare in
accordance with GAAP and deliver to the McCall Representative, a
closing date balance sheet for McCall as of the Closing Date (the
"Closing Balance Sheet"), which shall be accompanied by a computation
of the Adjusted Net Assets based thereon.
(b) The McCall Representative shall have a period of 15
days to review the Closing Balance Sheet and the accompanying calcu-
lation of the Adjusted Net Assets following delivery thereof
<PAGE>
by SEACOR. During such period, SEACOR shall afford the McCall
Representative access to any of its books, records and work papers
necessary to enable the McCall Representative to review the Closing
Balance Sheet and the accompanying calculation of the Adjusted Net
Assets. The McCall Representative may dispute any amounts reflected
in the Adjusted Net Assets by giving notice in writing to SEACOR
specifying each of the disputed items and setting forth in reasonable
detail the basis for such dispute. Failure by the McCall
Representative to dispute the amounts reflected in the Adjusted Net
Assets within 15 days of delivery of the Closing Balance Sheet by
SEACOR shall be deemed an acceptance thereof by the McCall
Representative. If, within 30 days after delivery by the McCall
Representative to SEACOR of any notice of dispute in accordance with
this Section 3.4(b), the McCall Representative and SEACOR are unable
to resolve all of such disputed items, then any remaining items in
dispute shall be submitted to an independent nationally recognized
accounting firm selected in writing by SEACOR and the McCall
Representative or, if SEACOR and the McCall Representative fail or
refuse to select such a firm within ten Business Days after request
therefor by SEACOR or the McCall Representative, such an independent
nationally recognized accounting firm shall be selected in accordance
with the rules of the American Arbitration Association (the "Arbi-
trator"). The Arbitrator shall determine the remaining disputed items
and report to SEACOR and the McCall Representative with respect to
such items. The Arbitrator's decision shall be final, conclusive and
binding on all parties. The fees and disbursements of the Arbitrator
shall be borne equally by the McCall Stockholders and SEACOR. The
Adjusted Net Assets if undisputed or deemed undisputed or as
determined by the mutual agreement of SEACOR and the McCall
Representative or by the Arbitrator in accordance with the procedure
outlined above shall be the "Final Adjusted Net Assets."
Section 3.5. Registration Rights Agreement; Restrictive
------------------------------------------
Endorsement. (a) The issuance of the SEACOR Common Stock to the
-----------
McCall Stockholders (as defined below) pursuant to this Agreement will
not be registered under the Securities Act, or any state securities
laws, in reliance upon certain exemptions from registration contained
therein and, therefore, will be subject to restrictions on transfer.
Pursuant to the terms and conditions of the Investment and
Registration Rights Agreement, in substantially the form attached
hereto as Exhibit C (the "Investment and Registration Rights
Agreement"), the McCall Stockholders shall have certain rights to
require the registration of the resale by the McCall Stockholders of
their SEACOR Common Stock. The "McCall Stockholders" are the record
and beneficial owners of the numbers of shares of capital stock
<PAGE>
of McCall as are set forth opposite their respective names on Schedule
3.5(a) hereto.
(b) Each certificate representing the shares of SEACOR
Common Stock to be issued to the McCall Stockholders pursuant to this
Agreement shall be stamped with a legend in substantially the
following form:
"The Shares represented by this certificate have not been
registered under the Securities Act of 1933, as amended, or any
state securities law, and may not be transferred, sold or
otherwise disposed of in the absence of such registration or an
exemption therefrom. Such Shares may be transferred only in
compliance with the conditions specified in the Investment and
Registration Rights Agreement, dated as of May 31, 1996, between
the Issuer and the other entities and individuals party thereto,
a complete and correct copy of which is available for inspection
at the principal office of the Issuer and will be furnished to
the Holder hereof upon written request and without charge."
ARTICLE 4.
REPRESENTATIONS AND WARRANTIES OF MCCALL
McCall represents and warrants to SEACOR and Sub as follows:
Section 4.1. Organization and Citizenship. (a) McCall is a
----------------------------
corporation duly organized, validly existing and in good standing
under the laws of the state of its incorporation and has all corporate
power and authority to carry on its business as now being conducted
and to own, lease and operate its properties. McCall is duly
qualified to do business and is in good standing in each state and
foreign jurisdiction in which the character or location of the
properties owned or leased by it or the nature of the business
conducted by it makes such qualification necessary, except where the
failure to be so qualified or in good standing would not have a
Material Adverse Effect on McCall.
(b) McCall and its stockholders are and at all times have been
citizens of the United States within the meaning of Section 2 of the
Shipping Act, 1916, as amended, for the purposes of owning and
operating vessels in the U.S. coastwise trade. None of the McCall
Stockholders is a "foreign person" within the meaning of Section 1445
of the Code.
Section 4.2. Affiliated Entities. (a) McCall does not,
-------------------
directly or indirectly, own of record or beneficially, or have the
right or obligation to acquire, any outstanding securities or other
interest in any Person.
<PAGE>
Section 4.3. Capitalization. (a) The authorized capital stock
--------------
of McCall consists exclusively of 2,500 shares of common stock, $10.00
par value per share, of which 100 shares were issued and outstanding
and no shares were held in its treasury as of the date hereof. All
issued and outstanding shares of capital stock of McCall are validly
issued, fully paid, non-assessable and free of preemptive or similar
rights. The McCall Stockholders are the record and beneficial owners
of such number of shares of capital stock of McCall set forth opposite
their respective names on Schedule 3.5(a) which shares represent all
of the issued and outstanding shares of capital stock of McCall.
There is no existing subscription, option, warrant, call, right,
commitment or other agreement to which McCall is a party requiring,
and there are no derivative securities of McCall outstanding which
upon conversion, exercise or exchange would require, directly or
indirectly, the issuance of any additional shares of McCall capital
stock or other securities convertible, exchangeable or exercisable
into or for shares of McCall capital stock or any other equity
security of McCall, and there are no outstanding contractual
obligations of McCall to repurchase, redeem or otherwise acquire any
outstanding share of McCall capital stock.
Section 4.4. Authority; Enforceable Agreement. (a) McCall has
--------------------------------
the requisite corporate power and authority to enter into this
Agreement and to consummate the transactions contemplated hereby. The
execution and delivery of this Agreement by McCall and the
consummation by McCall of the transactions contemplated hereby have
been duly authorized by all necessary corporate action on the part of
McCall, including the approval of the Merger and this Agreement by its
Board of Directors and the McCall Stockholders.
(b) This Agreement has been duly executed and delivered by
McCall and (assuming due execution and delivery by the other parties
hereto) constitutes a valid and binding obligation of McCall,
enforceable against McCall in accordance with its terms, except as
such enforceability may be limited by bankruptcy, insolvency,
reorganization or similar laws affecting creditors' rights generally.
The other agreements entered, or to be entered, into by McCall in
connection with this Agreement have been, or will be, duly executed
and delivered by McCall and (assuming due execution and delivery by
the other parties thereto) constitute, or will constitute, valid
and binding obligations of McCall, enforceable against McCall in
accordance with their terms, except as such enforceability may be
limited by bankruptcy, insolvency, reorganization or similar laws
affecting creditors' rights generally.
<PAGE>
Section 4.5. No Conflicts or Consents. (a) Except as set
------------------------
forth on Schedule 4.5(a), neither the execution, delivery nor
performance of this Agreement by McCall nor the consummation of the
transactions contemplated hereby will (i) violate, conflict with, or
result in a breach of any provision of, constitute a default (or an
event that, with notice or lapse of time or both, would constitute a
default) under, result in the termination of, or accelerate the
performance required by, or result in the creation of any adverse
claim against any of the properties or assets of McCall under (A) its
certificate of incorporation, by-laws or any other organizational
document, or (B) any note, bond, mortgage, indenture, deed of trust,
lease, license, agreement or other instrument or obligation to which
McCall is a party, or by which McCall or any of its assets are bound,
or (ii) subject to obtaining clearance under the HSR Act, violate any
order, writ, injunction, decree, judgment, statute, rule or regulation
of any governmental body to which McCall is subject or by which McCall
or any of its assets are bound.
(b) Except as set forth on Schedule 4.5(b), no consent,
approval, order, permit or authorization of, or registration,
declaration or filing with, any Person or of any government or any
agency or political subdivision thereof is required for the execution,
delivery and performance by McCall of this Agreement and the covenants
and transactions contemplated hereby or for the execution, delivery
and performance by McCall of any other agreements entered, or to be
entered, into by McCall in connection with this Agreement, except for
(i) the filing of the HSR Report by McCall under the HSR Act and the
early termination or expiration of all applicable waiting periods
thereunder, and (ii) the filing of the Certificate of Merger as
provided in Section 2.1(b) hereof.
Section 4.6. Corporate Documents. McCall has delivered to
-------------------
SEACOR true and complete copies of its certificate of incorporation
and by-laws, as amended or restated through the date of this
Agreement. The minute books of McCall contain complete and accurate
records of all corporate actions of the equity owners of the various
entities and of the boards of directors or other governing bodies,
including committees of such boards or governing bodies. The stock
transfer records of McCall contain complete and accurate records of
all issuances and redemptions of capital stock by McCall.
Section 4.7. Financial Statements; Liabilities. The McCall
---------------------------------
Financial Statements, to the extent that they include information with
respect to the McCall Group, have been prepared in accordance with
GAAP applied on a basis consistent with prior periods and present
fairly the financial position of McCall as at
<PAGE>
the dates of the balance sheet included therein and the results of
operations and cash flows for the periods then ended, except, in the
case of the McCall Interim Financial Statements, as permitted by Rule
10-01 of Regulation S-X of the SEC. The McCall Interim Financial
Statements reflect all adjustments (consisting only of normal,
recurring adjustments) that are necessary for a fair statement of the
results for the interim periods presented therein. Except as set
forth on Schedule 4.7, neither McCall has, nor are any of its assets
subject to, any liability, commitment, debt or obligation (of any kind
whatsoever whether absolute or contingent, accrued, fixed, known,
unknown, matured or unmatured) ("Undisclosed Liabilities"), except
(i) as and to the extent reflected on the McCall Latest Balance Sheet,
(ii) as may have been incurred or may have arisen since the date of
the McCall Latest Balance Sheet in the ordinary course of business and
that are not material individually or in the aggregate or (iii) as
permitted by this Agreement.
Section 4.8. Accounts Receivable. All of the accounts
-------------------
receivable reflected on the McCall Latest Balance Sheet or created
thereafter, with respect to McCall, have arisen only from bona fide
transactions in the ordinary course of business, represent valid
obligations owing to McCall and have been accrued and recorded in
accordance with GAAP. Except as set forth on Schedule 4.8, such
accounts receivable either have been collected in full or will be
collectible in full when due, without any counterclaims, set-offs or
other defenses and without provision for any allowance for
uncollectible accounts other than such allowance as appears on the
McCall Latest Balance Sheet.
Section 4.9. Absence of Certain Changes or Events. Except as
------------------------------------
set forth on Schedule 4.9 or as contemplated by this Agreement, since
the date of the McCall Latest Balance Sheet, McCall has conducted its
business only in the ordinary course, and has not:
(a) amended its certificate of incorporation, by-laws or
similar organizational documents;
(b) incurred any liability or obligation of any nature
(whether absolute or contingent, accrued, fixed, known, unknown,
matured or unmatured), except in the ordinary course of business;
(c) suffered or permitted any of its assets to be or remain
subject to any lien other than those disclosed on Schedule 4.11(a) or
4.13(a) and that collateralize indebtedness reflected on the McCall
Latest Balance Sheet and Liens for Taxes accrued but not yet payable
and Permitted Liens;
<PAGE>
(d) merged or consolidated with another Person or acquired
or agreed to acquire any Person or sold, leased, transferred or
otherwise disposed of any assets except for fair value in the ordinary
course of business;
(e) made any capital expenditure or commitment therefor,
except in the ordinary course of business;
(f) declared or paid any dividend or made any distribution
with respect to any of its equity interests, or redeemed, purchased or
otherwise acquired any of its equity interests, or issued, sold or
granted any equity interests or any option, warrant or other right to
purchase or acquire any such interest;
(g) adopted any employee benefit plan or made any change in
any existing employee benefit plans or made any bonus or profit
sharing distribution or payment of any kind;
(h) increased indebtedness for borrowed money, or made any
loan to any Person, other than through the issuance of standby or
performance letters of credit issued in the ordinary course of
business;
(i) made any change affecting any banking, safe deposit or
power of attorney arrangements;
(j) written off as uncollectible any notes or accounts
receivable, except for notes or accounts receivable in the ordinary
course of business charged to applicable allowances reflected in the
McCall Latest Balance Sheet, and none of which individually or in the
aggregate is material to McCall;
(k) entered into or amended any employment, severance or
similar agreement or arrangement with any director or employee, or
granted any increase in the rate of wages, salaries, bonuses, employee
advances or other compensation or benefits of any executive officer or
other employee, other than any such increase that is both in the
ordinary course of business consistent with past practice and in an
amount such that, after giving effect thereto, aggregate employee
compensation expense (considered on an annualized basis) does not
exceed 105% of the aggregate employee compensation expense for
McCall's fiscal year ended December 31, 1995.
(l) cancelled, waived, released or otherwise compromised
any debt, claim or right, except as permitted under clause (j);
<PAGE>
(m) made any change in any method of accounting principle
or practice;
(n) entered into any transaction other than on an arm's-
length basis;
(o) suffered any damage, destruction or loss (whether or
not covered by insurance) which has had or could reasonably be
expected to have a Material Adverse Effect on McCall; or
(p) agreed, whether or not in writing, to do any of the
foregoing.
Section 4.10. Contracts. (a) Except as set forth on Schedule
---------
4.10(a), McCall is not a party to: (i) any collective bargaining
agreement; (ii) any Contract with any employee; (iii) any Contract,
containing any covenant limiting its freedom to engage in any line of
business or to compete with any Person; (iv) any Contract containing
an obligation to guarantee or indemnify any other Person; (v) any
joint venture, partnership or similar Contract involving a sharing of
profits or expenses; (vi) any Contract under which McCall is the
licensee or licensor of patents, copyrights, trademarks, applications
for any of the foregoing or any other intellectual property rights of
any nature; (vii) any Contract with any of its Affiliates; (viii) any
Contract under which McCall has borrowed any money or issued any note,
bond or other evidence of indebtedness for borrowed money or
guaranteed indebtedness for money borrowed by others; (ix) any hedge,
swap, exchange, futures or similar Contracts; or (x) any Contract that
has had or may have a Material Adverse Effect on McCall.
(b) Schedule 4.10(b) contains a list and brief description
(including the names of the parties and the date and nature of the
agreement) of each material Contract to which McCall is a party.
There is no existing breach by McCall of any of its material Contracts
and there has not occurred any event that with the lapse of time or
the giving of notice or both would constitute such a breach. There is
not pending nor, to the Knowledge of McCall, threatened, any claim
that McCall, has breached any of the terms or conditions of any of its
material Contracts and, to the Knowledge of McCall, no other parties
to such Contracts have breached any of their terms or conditions.
SEACOR has been provided with a complete and accurate copy of each
Contract listed on Schedule 4.10(b).
Section 4.11. Properties and Leases. (a) Except for assets
---------------------
disposed of for adequate consideration in the ordinary course of
business and which are not material to the operation of
<PAGE>
its business, McCall has good and valid title to all real property and
all other properties and assets accounted for as belonging to McCall
in the McCall Latest Balance Sheet free and clear of all Liens, except
for (i) Liens that secure indebtedness that is properly reflected in
the McCall Latest Balance Sheet; (ii) Liens for Taxes accrued but not
yet payable; (iii) Permitted Liens, provided that the obligations
collateralized by such Permitted Liens are not delinquent or are being
contested in good faith; (iv) such imperfections of title and
encumbrances, if any, as do not in the aggregate materially detract
from the value or materially interfere with the present use of any
such properties or assets or the potential sale of any such properties
and assets and (v) capital leases and leases of such properties, if
any, to third parties for fair and adequate consideration. Schedule
4.11(a) contains a list of (i) all Liens (other than Permitted Liens
and Liens for Taxes accrued but not yet payable) on property of McCall
collateralizing indebtedness on the McCall Latest Balance Sheet, and
(ii) certain items of personal property not owned by McCall. McCall
owns, or has valid leasehold interests in, all properties and assets,
used in the conduct of its business.
(b) With respect to each lease of real property and
material amount of personal property to which McCall is a party,
(i) McCall has a valid leasehold interest in such real property or
personal property; (ii) such lease is in full force and effect in
accordance with its terms; (iii) all rents and other monetary amounts
that have become due and payable thereunder have been paid in full;
(iv) no waiver, indulgence or postponement of the obligations
thereunder has been granted by the other party thereto; (v) there
exists no material default (or an event that, with notice or lapse of
time or both would constitute a material default) under such lease;
(vi) McCall has not violated any of the terms or conditions under any
such lease; (vii) to the Knowledge of McCall, there has been no (A)
condition or covenant to be observed or performed by any other party
under any such lease that has not been fully observed and performed
and (B) in the case of each prime lease concerning demised premises
subleased to McCall, condition or covenant to be observed or performed
by each party thereto that has not been fully observed and performed
and there does not exist any event of default or event, occurrence,
condition or act that, with the giving of notice, the lapse of time or
the happening of any further event or condition, would become a
default under any such prime lease; and (viii) the transactions
described in this Agreement will not constitute a default under or
cause for termination or modification of such lease.
<PAGE>
(c) Except as disclosed on Schedule 4.11(c), the rent
charged to McCall under any lease between McCall and any of its
Affiliates is at or below the market rate and any such lease contains
such other terms and conditions that are no less favorable to McCall
than would be obtainable in an arms-length transaction with an
independent third party lessor.
(d) Schedule 4.11(d) contains a list of all real property
owned by McCall and a list of all leases to which McCall is a party,
which list includes a reasonable description of the location and
approximate square footage of each property, whether owned or leased,
and the term of each such lease, including all renewal options.
Complete and correct copies of each lease has been delivered to
SEACOR.
Section 4.12. Condition of McCall's Assets. All of the tangible
----------------------------
assets of McCall are currently in good and usable condition, ordinary
wear and tear excepted, and are being used in McCall's business.
There are no defects in such assets or other conditions that in the
aggregate have or would be reasonably likely to have, a Material
Adverse Effect on McCall. Such assets and the other properties being
leased by McCall pursuant to the leases described on Schedule 4.11(d),
constitute all of the operating assets being utilized by McCall in the
conduct of its business and such assets are sufficient in quantity and
otherwise adequate for the operations of McCall as currently
conducted.
Section 4.13. Vessels. McCall does not own, lease, charter or
-------
manage any vessels.
Section 4.14. Accounting Matters. To the Knowledge of McCall,
------------------
neither McCall nor any of its Affiliates has taken or agreed to take
any action that (without giving effect to any action taken or agreed
to be taken by SEACOR or any of its Affiliates) would prevent SEACOR
from accounting for the business combination to be effected by the
Merger as a pooling-of-interests.
Section 4.15. Suppliers and Customers. To the Knowledge of
-----------------------
McCall and except as disclosed on Schedule 4.15, (a) no supplier
providing products, materials or services to McCall intends to cease
selling such products, materials or services to McCall or to limit or
reduce such sales to McCall or materially alter the terms or
conditions of any such sales and (b) no customer of McCall intends to
terminate, limit or reduce its or their business relations with
McCall.
Section 4.16. Employee Matters. (a) Schedule 4.16(a) sets
----------------
forth the name, title, current annual compensation rate
<PAGE>
(including bonus and commissions, but separately identifying salary or
hourly rate), accrued bonus, accrued sick leave, accrued severance pay
and accrued vacation benefits of each officer of McCall, and a list of
all employment, consulting, employee confidentiality or similar
Contracts to which McCall is a party. Copies of organizational
charts, any employee handbook(s), and any reports and/or plans
prepared or adopted pursuant to the Equal Employment Opportunity Act
of 1972, as amended, have been provided to SEACOR.
(b) Each of the following is true with respect to McCall:
(i) McCall is in compliance with all applicable laws
respecting employment and employment practices, terms and
conditions of employment, wages and hours and occupational safety
and health, and is not engaged in any unfair labor practice
within the meaning of Section 8 of the National Labor Relations
Act, and there is no proceeding pending or, to the Knowledge of
McCall, threatened, or, to the Knowledge of McCall, any pending
or threatened investigation against it relating to any thereof,
and, to the Knowledge of McCall, there is no basis for any such
proceeding or investigation;
(ii) to the Knowledge of McCall, none of the employees of
any such member is a member of, or represented by, any labor
union and there are no efforts being made to unionize any of such
employees; and
(iii) to the Knowledge of McCall, there are no charges
or complaints of, or proceedings involving, discrimination or
harassment (including but not limited to discrimination or
harassment based upon sex, age, marital status, race, religion,
color, creed, national origin, sexual preference, handicap or
veteran status) pending or, to the Knowledge of McCall,
threatened, nor, to the Knowledge of McCall, is there any pending
or threatened investigation, including, but not limited to,
investigations before the Equal Employment Opportunity Commission
or any federal, state or local agency or court, with respect to
any such member.
Section 4.17. Employee Benefit Plans. With respect to McCall:
----------------------
(a) Schedule 4.17(a) lists each Employee Plan that McCall
maintains, administers, contributes to, or has any contingent
liability with respect to. McCall has provided a true and complete
copy of each such Employee Plan, current summary
<PAGE>
plan description, (and, if applicable, related trust documents) and
all amendments thereto and written interpretations thereof together
with (i) the three most recent annual reports prepared in connection
with each such Employee Plan (Form 5500 including, if applicable,
Schedule B thereto); (ii) the most recent actuarial report, if any,
and trust reports prepared in connection with each Employee Plan;
(iii) all material communications received from or sent to the
Internal Revenue Service ("IRS") or the Department of Labor within the
last two years (including a written description of any material oral
communications); (iv) the most recent IRS determination letter with
respect to each Employee Plan and the most recent application for a
determination letter; (v) all insurance contracts or other funding
arrangements; and (vi) the most recent actuarial study of any post-
employment life or medical benefits provided, if any.
(b) Schedule 4.17(b) identifies each Benefit Arrangement
that McCall maintains, administers, contributes to, or has any
contingent liability with respect to. McCall has furnished to SEACOR
copies or descriptions of each Benefit Arrangement and any of the
information set forth in Section 4.17(a) applicable to any such
Benefit Arrangement. Each Benefit Arrangement has been maintained and
administered in substantial compliance with its terms and with the
requirements (including reporting requirements) prescribed by any and
all statutes, orders, rules and regulations which are applicable to
such Benefit Arrangement.
(c) Benefits under any Employee Plan or Benefit Arrangement
are as represented in such documents and have not been increased or
modified (whether written or not written) subsequent to the dates of
such documents. Except as disclosed on Schedule 4.17(c), McCall has
not communicated to any employee or former employee any intention or
commitment to modify any Employee Plan or Benefit Arrangement or to
establish or implement any other employee or retiree benefit or
compensation arrangement.
(d) No Employee Plan is (i) a Multiemployer Plan, (ii) a
Title IV Plan or (iii) maintained in connection with any trust
described in Section 501(c)(9) of the Code. McCall has never
maintained or become obligated to contribute to any employee benefit
plan (i) that is subject to Title IV of ERISA, (ii) to which Section
412 of the Code applies, or (iii) that is a Multiemployer Plan.
McCall has not within the last five years engaged in, or is a
successor corporation to an entity that has engaged in, a transaction
described in Section 4069 of ERISA.
<PAGE>
(e) Each Employee Plan which is intended to be qualified
under Section 401(a) of the Code is so qualified and has been so
qualified during the period from its adoption to date, and no event
has occurred since such adoption that would adversely affect such
qualification and each trust created in connection with each such
Employee Plan forming a part thereof is exempt from tax pursuant to
Section 501(a) of the Code. A favorable determination letter has been
issued by the IRS as to the qualification of each such Employee Plan
under the Code and to the effect that each such trust is exempt from
taxation under Section 501(a) of the Code. Except as disclosed on
Schedule 4.17(e), each Employee Plan has been maintained and
administered in compliance with its terms and with the requirements
(including reporting requirements) prescribed by any and all
applicable statutes, orders, rules and regulations, including but not
limited to ERISA and the Code.
(f) Full payment has been made of all amounts which McCall
is or has been required to have paid as contributions to or benefits
due under any Employee Plan or Benefit Arrangement under applicable
law or under the terms of any such plan or any arrangement.
(g) Neither McCall, nor any of its directors, officers or
employees has engaged in any transaction with respect to an Employee
Plan that could subject McCall to a tax, penalty or liability for a
prohibited transaction, as defined in Section 406 of ERISA or Section
4975 of the Code. None of the assets of any Employee Plan are
invested in employer securities or employer real property.
(h) To the Knowledge of McCall, there are no facts or
circumstances that give rise to any liability under Title I of ERISA.
(i) McCall has no current or projected liability in respect
of post-retirement or post-employment medical, death or life
insurance, welfare benefits for retired, current or former employees,
except as required to avoid excise tax under Section 4980B of the
Code.
(j) Except as disclosed on Schedule 4.17(j), there is no
litigation, administrative or arbitration proceeding or other dispute
pending or threatened that involves any Employee Plan or Benefit
Arrangement which could reasonably be expected to result in a
liability to McCall or SEACOR.
(k) Except as disclosed on Schedule 4.17(k), no employee or
former employee of McCall will become entitled to any
<PAGE>
bonus, employee advance, retirement, severance, job security or
similar benefit or enhanced benefit (including acceleration of an
award, vesting or exercise of an incentive award) or any fee or
payment of any kind solely as a result of any of the transactions
contemplated hereby and no such disclosed payment constitutes a
parachute payment described in Section 280G of the Code.
(l) Except as disclosed in Schedule 4.17(l), no Employee
Plan provides health, medical, death or survivor benefits to any
stockholders or directors who are not employees.
Section 4.18. Tax Matters. Each of the following is true with
-----------
respect to McCall to the extent applicable to such member:
(a) All Returns have been, or will be, timely filed by (or
on behalf of) McCall in accordance with all applicable laws; all Taxes
that are due, or claimed by any taxing authority to be due from or
with respect to McCall have been or will be timely paid by (or on
behalf of) McCall; all Returns of (or including) McCall have been
properly completed in compliance with all applicable laws and
regulations and are true, complete and correct in all material
respects and such Returns are not subject to penalties under Section
6662 of the Code (or any corresponding provision of state, local or
foreign tax law). With respect to any period for which Returns have
not yet been filed, or for which Taxes are not yet due or owing,
McCall, as the case may be, has made due and sufficient current
accruals for such Taxes as reflected on its books (including, without
limitation, the McCall Latest Balance Sheet);
(b) There are no outstanding agreements, consents, waivers
or arrangements extending the statutory period of limitation
applicable (A) to file any Return or (B) for assessment or collection
of any Taxes due from or with respect to McCall for any period prior
to the date hereof, and McCall has not been requested to enter into
any such agreement, consent, waiver or arrangement;
(c) There are no Liens with respect to Taxes (other than
for current Taxes not yet due and payable) upon any of the assets of
McCall;
(d) All material elections with respect to Taxes affecting
McCall are set forth in Schedule 4.18(d);
(e) All Taxes that McCall is required by law to withhold or
collect (including Taxes required to be withheld and collected from
employee wages, salaries and other compensation)
<PAGE>
have been duly withheld or collected, and have been timely paid over
to the appropriate governmental authorities;
(f) The United States federal income tax Returns of (or
including) McCall have been examined by the IRS or the periods covered
by such Returns have been closed by applicable statute of limitations,
for all periods through December 31, 1992. The state, local and
foreign Returns of (or including) McCall have been examined by the
relevant taxing authorities, or the periods covered by such Returns
have been closed by applicable statute of limitations, for all periods
through December 31, 1992. All deficiencies claimed, proposed or
asserted or assessments made as a result of such examinations or any
other examinations of McCall have been fully paid or fully settled,
and no issue has been raised by any federal, state, local or foreign
taxing authority in any such examination which, by application of the
same or similar principles, could reasonably be expected to result in
a proposed deficiency for any subsequent taxable period. Schedule
4.18(f) sets forth each state and foreign jurisdiction in which McCall
has, in the last three years, filed a Return.
(g) No Tax audits or other administrative proceedings are
pending with regard to any Taxes for which McCall may be liable and
McCall has not received any notice from any taxing authority that it
intends to conduct such an audit or commence such an administrative
proceeding.
(h) No claim has been made by a taxing authority in a
jurisdiction where McCall does not file Returns that McCall is or may
be subject to taxation by that jurisdiction.
(i) McCall is not a party to any agreement, contract,
arrangement or plan that would result, separately or in the aggregate,
in the payment of any "parachute payments" within the meaning of Code
Section 280G (or any comparable provision of state or local law);
(j) McCall has not agreed, nor is it required, to make any
adjustment under Code Section 481(a) (or any comparable provision of
state or local law) by reason of a change in any accounting method or
otherwise, and there is no application pending with any taxing
authority requesting permission for any changes in any accounting
method of McCall. Neither the IRS nor any comparable taxing authority
has proposed to McCall in writing or, to the Knowledge of McCall,
otherwise proposed any such adjustment or change in accounting method.
<PAGE>
(k) McCall has not filed a consent pursuant to the
collapsible corporation provisions of Section 341(f) of the Code (or
any corresponding provision of state, local or foreign income law) or
agreed to have Section 341(f)(2) of the Code (or any corresponding
provision of state, local or foreign income tax law) apply to any
disposition of any asset owned by it;
(l) None of the assets of McCall is property that it is
required to treat as being owned by any other 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 Tax Reform Act of
1986;
(m) None of the assets of McCall directly or indirectly
secures any debt, the interest on which is tax exempt under Section
103(a) of the Code;
(n) None of the assets of McCall (i) is subject to Section
168(g)(i)(A) of the Code or (ii) constitutes "tax-exempt use property"
within the meaning of Section 168(h) of the Code;
(o) McCall has not made a deemed dividend election under
Section 1.1502- 32(f)(2) of the Treasury Regulations or a consent
dividend election under Section 565 of the Code;
(p) McCall has never been a member of an affiliated group
of corporations filing a consolidated combined or unitary Return; and
(q) McCall is not (nor has ever been) a party to any tax
sharing agreement nor has any such member assumed the tax liability of
any other person under contract.
Section 4.19. Litigation. Except as disclosed on Schedule 4.19,
----------
there are no actions, suits, proceedings, arbitrations or
investigations pending or, to the Knowledge of McCall, threatened
before any court, any governmental agency or instrumentality or any
arbitration panel, against or affecting McCall or, to the Knowledge of
McCall, any of its directors or officers. To the Knowledge of McCall,
no facts or circumstances exist that would be likely to result in the
filing of any such action that would have a Material Adverse Effect on
McCall. Except as disclosed on Schedule 4.19, McCall is not subject
to any currently pending judgment, order or decree entered in any
lawsuit or proceeding. All matters listed on Schedule 4.19 are either
adequately covered by insurance or accounted for through the
establishment of reasonable reserves on the McCall Latest Balance
Sheet.
<PAGE>
Section 4.20. Insurance. (a) Schedule 4.20(a) contains a list
---------
of the insurance policies that McCall currently maintains with respect
to its business, properties and employees as of the date hereof, each
of which is in full force and effect and a complete and correct copy
of each has been delivered to SEACOR. All insurance premiums
currently due with respect to such policies have been paid and McCall
is not otherwise in default with respect to any such policy, nor has
McCall failed to give any notice or, to the Knowledge of McCall,
present any claim under any such policy in a due and timely manner.
There are no outstanding unpaid claims under any such policy other
than any pending claims under any of McCall's marine insurance
policies, the amount of which claims have been recorded as a
receivable and all of which are fully collectible. McCall has not
received notice of cancellation or non-renewal of any such policy.
Such policies are sufficient for compliance with all requirements of
law and all agreements to which McCall is a party.
(b) Except as disclosed on Schedule 4.20(b), McCall is not
nor has ever been a member of any protection or indemnity club.
Section 4.21. Environmental Compliance. (a) Except as set
------------------------
forth on Schedule 4.21(a), McCall is and, to the Knowledge of McCall,
at all times in the past has been in compliance with all Environmental
Laws and McCall possesses all necessary licenses, permits,
authorizations, and other approvals and authorizations that are
required under the Environmental Laws ("Environmental Permits").
(b) Except as set forth on Schedule 4.21(b), McCall is not,
nor has been, subject to any pending or, to the Knowledge of McCall,
threatened investigations, administrative or judicial proceedings
pursuant to, or has received any notice of any violation of, or claim
alleging liability under, any Environmental Laws, and, to the
Knowledge of McCall, no facts or circumstances exist that would be
likely to result in a claim, citation or allegation against McCall for
a violation of, or alleging liability under, any Environmental Laws.
(c) Except as set forth on Schedule 4.21(c), there are no
above ground or underground tanks of any type (including tanks storing
gasoline, diesel fuel, oil or other petroleum products) or disposal
sites for hazardous substances, hazardous wastes or any other waste,
located on or under the real estate currently owned, leased or used by
McCall and, to the Knowledge of McCall, there were no such disposal
sites located on or under the real estate previously owned, leased or
used by McCall on the date of
<PAGE>
the sale thereof by McCall or during the period of lease for use by
McCall.
(d) Except in the ordinary course of business or as listed
on Schedule 4.21(d), and in all cases in compliance with Environmental
Laws, McCall has not engaged any third party to handle, transport or
dispose of Hazardous Substances (including for this purpose but not
limited to, gasoline, diesel fuel, oil or other petroleum products, or
bilge waste) on its behalf. The disposal by McCall of its hazardous
substances and wastes has been in compliance with all Environmental
Laws.
Section 4.22. Compliance With Law; Permits. Except with respect
----------------------------
to Environmental Laws, which is the subject of Section 4.21, the
following statements are true and correct:
(a) The operations and activities of McCall comply with all
applicable laws, regulations, ordinances, rules or orders of any
federal, state or local court or any governmental authority except for
any violation or failure to comply that could not reasonably be
expected to result in a Material Adverse Effect on McCall.
(b) McCall possesses all governmental licenses, permits and
other governmental authorizations that are (i) required under all
federal, state and local laws and regulations for the ownership, use
and operation of its assets or (ii) otherwise necessary to permit the
conduct of its business without interruption, and such licenses,
permits and authorizations are in full force and effect and have been
and are being fully complied with by it except for any violation or
failure to comply that could not reasonably be expected to result in a
Material Adverse Effect on McCall. McCall has not received any notice
of any violation of any of the terms or conditions of any such
license, permit or authorization and, to the Knowledge of McCall, no
facts or circumstances exist that could form the basis of a
revocation, claim, citation or allegation against it for a violation
of any such license, permit or authorization. No such license, permit
or authorization or any renewal thereof will be terminated, revoked,
suspended, modified or limited in any respect as a result of the
transactions contemplated by this Agreement except for any violation
or failure to comply that could not reasonably be expected to result
in a Material Adverse Effect on McCall.
Section 4.23. Interests in Clients, Suppliers, Etc. Except as
------------------------------------
set forth on Schedule 4.23, no officer or director of McCall
possesses, directly or indirectly, any financial interest in, or is a
director, officer or employee of, any corporation or
<PAGE>
business organization that is a supplier, customer, lessor, lessee, or
competitor or potential competitor of McCall or that has entered into
any contract with McCall. Ownership of less than 1% of any class of
securities of a company whose securities are registered under the
Exchange Act will not be deemed to be a financial interest for
purposes of this Section 4.23.
Section 4.24. Transactions With Related Parties. (a) Schedule
---------------------------------
4.24(a) lists all transactions between January 1, 1993 and the date of
this Agreement involving, or for the benefit of, McCall, on the one
hand, and any director or officer of McCall or Affiliate of such
director or officer, on the other hand, including (i) any debtor or
creditor relationship, (ii) any transfer or lease of real or personal
property, and (iii) purchases or sales of products or services.
(b) Schedule 4.24(b) lists (i) all agreements and claims of
any nature that any officer or director of McCall or any Affiliate of
such officer or director has with or against McCall as of the date of
this Agreement that are not identified on the McCall Latest Balance
Sheet or the notes thereto and (ii) all agreements and claims of any
nature that McCall has with or against any officer or director of
McCall or any Affiliate of such officer or director as of the date of
this Agreement that are not identified on the McCall Latest Balance
Sheet or the notes thereto.
Section 4.25. Broker's and Finder's Fee. No agent, broker,
-------------------------
person or firm acting on behalf of McCall is or will be entitled to
any commission or broker's or finder's fee from any of the parties
hereto, or from any Affiliate of the parties hereto, in connection
with any of the transactions contemplated herein.
Section 4.26. Disclosure. No representations or warranties by
----------
McCall in this Agreement and no statement contained in the schedules
or exhibits or in any certificate to be delivered pursuant to this
Agreement, contains or will contain any untrue statement of material
fact or omits or will omit to state any material fact necessary, in
light of the circumstances under which it was made, in order to make
the statements herein or therein not misleading.
Section 4.27. Intellectual Property. (a) Schedule 4.27 contains
---------------------
a list of any trademarks, service marks, trade names, copyrights and
patents (and any application for the registration thereof), owned or
licensed by McCall, specifying as to each, as applicable: (i) the
nature of such Intellectual Property Right; (ii) the owner of each
Intellectual Property Right licensed by McCall; (iii) the expiration
or termination date of each third
<PAGE>
party license; and (iv) any third Person to whom any Intellectual
Property Right owned by McCall is licensed. All of the Intellectual
Property Rights owned by McCall is owned by such member free and clear
of Liens. All third party licenses are valid, enforceable and in full
force and effect, and the interests of McCall under such third party
licenses are held free and clear of any Liens. McCall has no
obligation to make any royalty or other payment to any Person in
connection with the use of or right to use any Intellectual Property
Right. The making, using or selling of products or services
incorporating the subject matter of any Intellectual Property Rights
of McCall does not infringe, violate or conflict with any Intellectual
Property Rights of any other Person.
(b) To the Knowledge of McCall, the use by McCall of the
name "McCall" or any variant or derivative thereof used by McCall on
the date hereof does not violate or infringe any Intellectual Property
Right of any Person.
ARTICLE 5.
REPRESENTATIONS AND WARRANTIES OF SEACOR AND SUB
SEACOR and Sub represent and warrant to McCall as follows:
Section 5.1. Organization and Citizenship. (a) SEACOR and Sub are
----------------------------
corporations duly organized, validly existing and in good standing
under the laws of the State of Delaware and Louisiana, respectively,
and have all corporate power and authority to carry on their
businesses as now being conducted and to own, lease and operate their
properties. Each other member of the SEACOR Affiliated Group is duly
organized under the laws of the state or foreign nation of its
organization and has all the requisite power and authority under the
laws of such jurisdiction to carry on its business as now being
conducted and to own its properties. Each member of the SEACOR
Affiliated Group is duly qualified to do business and is in good
standing in each state and foreign jurisdiction in which the character
or location of the properties owned or leased by it or the nature of
the business conducted by it makes such qualification necessary,
except where the failure to be so qualified or in good standing would
not have a Material Adverse Effect on SEACOR.
(b) Each of SEACOR and Sub is a citizen of the United
States within the meaning of Section 2 of the Shipping Act, 1916, as
amended for the purposes of owning and operating vessels in the U.S.
coastwise trade.
Section 5.2. Capitalization. (a) The authorized capital stock
--------------
of SEACOR consists exclusively of 20,000,000 shares of
<PAGE>
common stock, $.01 par value per share, of which 8,513,825 shares were
issued and outstanding and 55,768 shares were held in its treasury as
of May 28, 1996. All of such issued and outstanding shares have been
validly issued, are fully paid and nonassessable and were issued free
of preemptive rights, in compliance with any rights of first refusal,
and in compliance with all legal requirements.
(b) The authorized capital stock of Sub consists of 100
shares of Common Stock, $.01 par value per share, of which 100 shares
are issued and outstanding and owned by SEACOR and no shares are held
in its treasury as of the date hereof. All of such issued and
outstanding shares have been validly issued, are fully paid and
nonassessable and were issued free of pre-emptive rights, in
compliance with any rights of first refusal, and in compliance with
all legal requirements.
Section 5.3. Authority; Enforceable Agreements. (a) SEACOR
---------------------------------
and Sub each has the requisite corporate power and authority to enter
into this Agreement and to consummate the transactions contemplated
hereby. The execution and delivery of this Agreement by SEACOR and
Sub and the consummation by SEACOR and Sub of the transactions
contemplated hereby have been duly authorized by all necessary
corporate action on the part of SEACOR and Sub.
(b) This Agreement has been duly executed and delivered by
SEACOR and Sub, and (assuming due execution and delivery by the other
parties hereto) constitutes a valid and binding obligation of SEACOR
and Sub, enforceable against SEACOR and Sub in accordance with its
terms, except as such enforceability may be limited by bankruptcy,
insolvency, reorganization or similar laws affecting creditors' rights
generally. The other agreements entered, or to be entered, into by
SEACOR and Sub in connection with this Agreement have been, or will
be, duly executed and delivered by SEACOR and Sub and (assuming due
execution and delivery by the other parties thereto) constitute, or
will constitute, valid and binding obligations of SEACOR and Sub,
enforceable against SEACOR and Sub in accordance with their terms,
except as such enforceability may be limited by bankruptcy,
insolvency, reorganization or similar laws affecting creditors' rights
generally.
Section 5.4. No Conflicts or Consents. (a) Neither the
------------------------
execution, delivery nor performance of this Agreement by SEACOR or Sub
nor the consummation of the transactions contemplated hereby will (i)
violate, conflict with, or result in a breach of any provision of,
constitute a default (or an event that, with notice or lapse of time
or both, would constitute a default)
<PAGE>
under, result in the termination of, or accelerate the performance
required by, or result in the creation of any adverse claim against
any of the properties or assets of any member of the SEACOR Affiliated
Group under (A) the certificates of incorporation, by-laws or other
organizational documents of any member of the SEACOR Affiliated Group
or (B) any note, bond, mortgage, indenture, deed of trust, lease,
license, agreement or other instrument or obligation to which any
member of the SEACOR Affiliated Group is a party, or by which any of
its assets are bound, or (ii) subject to obtaining clearance under the
HSR Act, violate any order, writ, injunction, decree, judgment,
statute, rule or regulation of any governmental body to which any
member of the SEACOR Affiliated Group is subject or by which any of
its assets are bound.
(b) No consent, approval, order, permit or authorization
of, or registration, declaration or filing with, any Person or of any
government or any agency or political subdivision thereof is required
for the execution, delivery and performance by SEACOR or Sub of this
Agreement and the covenants and transactions contemplated hereby or
for the execution, delivery and performance by SEACOR or Sub of any
other agreements entered, or to be entered, into by SEACOR or Sub in
connection with this Agreement, except for (i) the filing of the HSR
Report by SEACOR under the HSR Act and the early termination or
expiration of applicable waiting periods thereunder, (ii) the filing
of the Registration Statement on Form S-3 with the SEC, any filings,
consents or approvals in connection therewith and the declaration of
effectiveness thereof by the SEC as contemplated by the Investment and
Registration Rights Agreement and (iii) the filing of the Certificate
of Merger as provided in Section 2.1(b) hereof.
Section 5.5. Corporate Documents. SEACOR has delivered to
-------------------
McCall true and complete copies of its certificate of incorporation
and by-laws, as amended or restated through the date of this
Agreement.
Section 5.6. SEC Documents; Financial Statements; Liabilities.
------------------------------------------------
(a) SEACOR has filed all required reports, schedules, forms,
statements and other documents with the SEC since December 31, 1993
(the "SEACOR SEC Documents"). As of their respective dates, the
SEACOR SEC Documents complied as to form in all material respects with
the requirements of the Securities Act or the Exchange Act, as the
case may be, and the rules and regulations of the SEC promulgated
thereunder applicable to such SEACOR SEC Documents, and none of the
SEACOR SEC Documents contained any untrue statement of a material fact
or omitted to state a material fact required to be stated therein
<PAGE>
or necessary in order to make the statements therein, in light of the
circumstances under which they were made, not misleading.
(b) The SEACOR Financial Statements included in the SEACOR
SEC Documents have been prepared in accordance with GAAP applied on a
basis consistent with prior periods, and present fairly the financial
position of SEACOR and its subsidiaries at the dates of the balance
sheets included therein and the results of operations and cash flows
for the periods then ended, except, in the case of the SEACOR Interim
Financial Statements, as permitted by Rule 10-01 of Regulation S-X of
the SEC. The SEACOR Interim Financial Statements reflect all
adjustments (consisting only of normal recurring adjustments) that are
necessary for a fair statement of the results for the interim periods
presented therein. No member of the SEACOR Affiliated Group has, nor
are any of their respective assets subject to, any liability,
commitment, debt or obligation (of any kind whatsoever whether
absolute or contingent, accrued, fixed, known, unknown, matured or
unmatured), except (i) as and to the extent reflected on the SEACOR
Latest Balance Sheet, (ii) as may have been incurred or may have
arisen since the date of the SEACOR Latest Balance Sheet in the
ordinary course of business and that are not material individually or
in the aggregate or (iii) as permitted by this Agreement.
Section 5.7. Absence of Certain Changes or Events. Since the
------------------------------------
date of the SEACOR Latest Balance Sheet, each member of the SEACOR
Affiliated Group has conducted its business only in the ordinary
course, and has not:
(a) amended its certificate of incorporation, by-laws or
similar organizational documents;
(b) merged or consolidated with another Person (other than
a subsidiary) or acquired or agreed to acquire any Person, or sold,
leased, transferred or otherwise disposed of any material portion of
its assets except for fair value in the ordinary course of business;
(c) suffered any damage, destruction or loss (whether or
not covered by insurance) which has had or could reasonably be
expected to have a Material Adverse Effect on the SEACOR Affiliated
Group; or
(d) declared or paid any dividend or made any distribution
with respect to any of its equity interests, or redeemed, purchased or
otherwise acquired any of its equity interests, or issued, sold or
granted any equity interests or any option, warrant or other right to
purchase or acquire any such
<PAGE>
interest or effected any split or reclassification thereof other than
(i) grants of stock options or restricted stock and issuances of
shares of SEACOR Common Stock upon the exercise of stock options or
conversion of any outstanding convertible securities, (ii) the
acceptance by SEACOR of any shares in consideration of the exercise of
any stock options or in satisfaction of any tax or tax withholding
obligations of the holders of such options, and (iii) payments within
the SEACOR Affiliated Group by entities other than SEACOR as part of
its cash management program; or
(e) agreed, whether or not in writing, to do any of the
foregoing.
Section 5.8. Contracts. Each Contract which any member of the
---------
SEACOR Affiliated Group is a party that would be required to be filed
as an exhibit to a report, schedule, form, statement or other document
filed by SEACOR with the SEC (each a "Material Contract") has been so
filed and, except as set forth on Schedule 5.8, between the date of
the filing of its most recent Quarterly Report on Form 10-Q and the
date of this Agreement, SEACOR has not entered into any Material
Contract other than this Agreement. No member of the SEACOR
Affiliated Group has breached, nor is there any pending or, to the
Knowledge of SEACOR, threatened, claim that it has breached, any of
the terms or conditions of any of its Material Contracts, and to the
Knowledge of SEACOR, no other parties to any such Material Contract
have breached any of its terms or conditions.
Section 5.9. Litigation. Except as disclosed in a SEACOR SEC
----------
Document or listed on Schedule 5.9, there are no actions, suits,
proceedings, arbitrations or investigations pending or, to the
Knowledge of SEACOR, threatened, before any court, any governmental
agency or instrumentality or any arbitration panel, against or
affecting any member of the SEACOR Affiliated Group or, to the
Knowledge of SEACOR, any of the directors or officers of the
foregoing, that would have a Material Adverse Effect on SEACOR. To
the Knowledge of SEACOR, no facts or circumstances exist that would be
likely to result in the filing of any such action. No member of the
SEACOR Affiliated Group is subject to any currently pending judgment,
order or decree entered in any lawsuit or proceeding.
Section 5.10. Legality of SEACOR Common Stock. The SEACOR
-------------------------------
Common Stock to be issued in connection with the Merger, when issued
and delivered in accordance with the terms hereof, will be duly
authorized, validly issued, fully paid and non-assessable, and free of
pre-emptive rights.
<PAGE>
Section 5.11. Broker's and Finder's Fee. No agent, broker,
-------------------------
Person or firm acting on behalf of SEACOR is or will be entitled to
any commission or broker's or finder's fee from any of the parties
hereto, or from any Affiliate of the parties hereto, in connection
with any of the transactions contemplated herein.
ARTICLE 6.
PRE-CLOSING COVENANTS
Section 6.1. Hart-Scott-Rodino; Cooperation and Best Efforts. (a)
-----------------------------------------------
McCall and SEACOR shall cooperate in good faith and take all actions
reasonably necessary or appropriate to file, and expeditiously and
diligently prosecute to a favorable conclusion, the HSR Reports
required to be filed by each of them in connection herewith with the
Federal Trade Commission (the "FTC") and the Department of Justice
(the "DOJ") pursuant to the HSR Act; provided that SEACOR shall not be
required to accept any conditions that may be imposed by the FTC or
the DOJ in connection with such filings that would require the
divestiture of any SEACOR or McCall assets or otherwise have a
Material Adverse Effect on SEACOR or McCall.
(b)Each party shall cooperate with the other and use its best efforts
to (i) receive all necessary and appropriate consents of third parties
to the transactions contemplated hereunder, (ii) satisfy all
requirements prescribed by law for, and all conditions set forth in
this Agreement to, the consummation of the Merger, and (iii) effect
the Merger in accordance with this Agreement at the earliest
practicable date.
Section 6.2. Conduct of Business By Both Parties Prior to the
------------------------------------------------
Closing Date. During the period from the date of this Agreement to
------------
the Effective Time, McCall and SEACOR shall each use its best efforts
to preserve the goodwill of suppliers, customers and others having
business relations with it and to do nothing knowingly to impair its
ability to keep and preserve its business as it exists on the date of
this Agreement. Without limiting the generality of the foregoing,
during the period from the date of this Agreement to the Effective
Time of the Merger each of McCall and SEACOR shall not, without the
prior written consent of the other:
(a) declare, set aside, increase or pay any dividend
(including any stock dividends), or declare or make any distribution
on, or directly or indirectly combine, redeem, reclassify, purchase,
or otherwise acquire, any shares of its capital stock or authorize the
creation or issuance of, or issue, deliver or sell any additional
shares of its capital stock or any securities or obligations
convertible into or exchangeable for
<PAGE>
its capital stock or effect any stock split or reverse stock split or
other recapitalization, except (i) grants of stock options or
restricted stock and the issuance of shares of SEACOR Common Stock
upon the exercise of stock options or conversion of any outstanding
convertible security; (ii) the acceptance by SEACOR of any shares in
consideration of the exercise of any stock options or in satisfaction
of any tax or tax withholding obligations of the holders of such
options, and (iii) payments within the SEACOR Affiliated Group by
entities other than SEACOR as part of its cash management program;
(b) amend its certificate of incorporation or by-laws, or
adopt or amend any resolution or agreement concerning indemnification
of its directors, officers, employees or agents;
(c) pledge or otherwise encumber any shares of its capital
stock, any other voting securities and any securities convertible
into, or any rights, warrants or options to acquire, any such shares,
or any other voting securities or convertible securities;
(d) commit or omit to do any act which act or omission
would cause a breach of any covenant contained in this Agreement or
would cause any representation or warranty contained in this Agreement
to become untrue, as if each such representation and warranty were
continuously made from and after the date hereof to the Effective
Time;
(e) violate any applicable law, statute, rule, governmental
regulation or order that would have a Material Adverse Effect on such
party;
(f) fail to maintain its books, accounts and records in the
usual manner on a basis consistent with that heretofore employed;
(g) take any action that would prevent the accounting for
the business combination to be effected by the Merger as a pooling-of-
interests; or
(h) authorize any of, or agree or commit to do any of, the
foregoing actions.
Section 6.3. Conduct of Business By McCall Prior to the Closing
--------------------------------------------------
Date. During the period from the date of this Agreement to the
----
Effective Time, in addition to its other covenants set forth in
Section 6.2, McCall shall use its best efforts to preserve the
possession and control of all of its assets other than those permitted
to be disposed of pursuant to the terms of
<PAGE>
this Agreement, shall conduct its business only in the ordinary course
consistent with past practice, and, except as otherwise provided
herein, shall not, without the prior written consent of SEACOR:
(a) except as contemplated by Section 4.17, enter into or
modify any employment, compensation, severance or similar agreement or
arrangement with any director or employee, or grant any increase in
the rate of wages, salaries, bonuses, employee advances or other
compensation or benefits of any executive officer or other employee,
other than any such increase that is both in the ordinary course of
business consistent with past practice and in an amount such that,
after giving effect thereto, aggregate employee compensation expense
(considered on an annualized basis) does not exceed 105% of the
aggregate employee compensation expense for the fiscal year ending
December 31, 1995;
(b) enter into any new line of business;
(c) acquire or agree to acquire (i) by merging or
consolidating with, or by purchasing a material portion of the assets
of, or by any other manner, any business or any Person or (ii) any
assets that are material, individually or in the aggregate, to McCall,
except purchases of materials, equipment and supplies in the ordinary
course of business consistent with past practice;
(d) except for dispositions made in the ordinary course of
business and consistent with past practices, sell, lease, license,
mortgage or otherwise encumber or subject to any Lien or otherwise
dispose of any of its other properties or assets;
(e) except as disclosed on Schedule 6.3(e), (i) incur any
indebtedness for borrowed money; or guarantee any such indebtedness of
another Person, issue or sell any debt securities or warrants or other
rights to acquire any debt securities of such party or any of its
subsidiaries, guarantee any debt securities of another Person, enter
into any "keep well" or other agreement to maintain any financial
condition of another Person or enter into any arrangement having the
economic effect of any of the foregoing, or (ii) make any loans,
advances or capital contributions to, or investments in, any other
Person;
(f) except as disclosed on Schedule 6.3(f), make or agree
to make any new capital expenditures other than those made in the
ordinary course of business and consistent with past practices, but in
no event to exceed in the aggregate $50,000;
<PAGE>
(g) place or suffer to exist on any of its assets or
properties any Lien, other than Liens listed on Schedules 4.11(a) or
4.13(a) and Permitted Liens, provided that the obligations
collateralized by such Permitted Liens are not delinquent or are being
contested in good faith and in no event shall the contested
obligations, individually or in the aggregate, collateralized by such
Permitted Liens exceed $50,000, in the aggregate, or forgive any
material indebtedness owing to it or any claims which it may have
possessed, or waive any right of substantial value or discharge or
satisfy any material noncurrent liability;
(h) authorize any of, or agree or commit to do any of, the
foregoing actions; or
(i) fail to maintain, renew or assist SEACOR in obtaining
all necessary Environmental Permits required for its business.
Section 6.4. Press Releases. McCall and SEACOR will consult
--------------
with each other before issuing, and provide each other the opportunity
to review and comment upon, any press releases or other public
statements with respect to any transactions described in this
Agreement, including the Merger, and shall not issue any such press
releases or make any such public statement prior to such consultation,
except as may be required by applicable law, court process or by
obligations pursuant to a listing agreement with the NASDAQ Stock
Market.
Section 6.5. Cooperation. McCall agrees to cooperate with
-----------
SEACOR and to assist SEACOR in identifying the Environmental Permits
required by SEACOR to operate the business from and after the Closing
Date and will either, where permissible, transfer existing
Environmental Permits of McCall to SEACOR, or, where not permissible,
assist SEACOR in obtaining new Environmental Permits for the Surviving
Corporation.
Section 6.6. Access to Information and Confidentiality. (a)
-----------------------------------------
Prior to the Closing Date, each of McCall and SEACOR shall afford to
the other party and the officers, employees, accountants, counsel,
financial advisors and other representatives of such other party,
reasonable access during normal business hours to their respective
premises, books and records and will furnish to the other party (i) a
copy of each report, schedule, registration statement and other
documents filed by it during such period pursuant to the requirements
of federal or state securities laws and (ii) such other information
with respect to its business and properties as such other party
reasonably requests.
<PAGE>
(b) Prior to the Closing, McCall will comply with the
obligations of the Companies relating to SEACOR's due diligence
investigation set forth in paragraph 10 of the term sheet incorporated
by reference into a letter agreement dated April 18, 1996 among
SEACOR, McCall and certain other parties.
(c) Each of McCall and SEACOR will, and will cause its
officers, directors, employees, agents and representatives to, (i)
hold in confidence, unless compelled to disclose by judicial or
administrative process or, in the opinion of its counsel, by other
requirements of law, all nonpublic information concerning the other
party furnished in connection with the transactions contemplated by
this Agreement until such time as such information becomes publicly
available (otherwise than through the wrongful act of such person),
(ii) not release or disclose such information to any other person,
except in connection with this Agreement to its auditors, attorneys,
financial advisors, other consultants and advisors and (iii) not use
such information for any competitive or other purpose other than with
respect to its consideration and evaluation of the transactions
contemplated by this Agreement. In the event of termination of this
Agreement for any reason, McCall and SEACOR will promptly return or
destroy all documents containing nonpublic information so obtained
from the other party and any copies made of such documents and any
summaries, analyses or compilations made therefrom.
Section 6.7. Consultation and Reporting. During the period
--------------------------
from the date of this Agreement to the Closing Date, McCall will,
subject to any applicable legal or contractual restrictions, confer on
a regular and frequent basis with SEACOR to report material
operational matters and to report on the general status of ongoing
operations. Each of McCall and SEACOR will notify the other of any
unexpected emergency or other change in the normal course of its
business or in the operation of its properties and of any governmental
complaints, investigations, adjudicatory proceedings, or hearings (or
communications indicating that the same may be contemplated) and will
keep the other fully informed of such events and permit its
representatives prompt access to all materials prepared by or on
behalf of such party or served on them, in connection therewith.
Section 6.8. Update Schedules. Each party hereto will promptly
----------------
disclose to the other any information contained in its representations
and warranties and on the related schedules that is incomplete or no
longer correct; provided, however, that none of such disclosures will
-------- -------
be deemed to modify, amend or supplement the representations and
warranties of such party, unless the other party consents to such
modification, amendment or supplement in writing.
<PAGE>
ARTICLE 7.
CLOSING CONDITIONS
Section 7.1. Condition Applicable to All Parties. The obligations of
-----------------------------------
each of the parties hereto to effect the Merger and the other
transactions contemplated by this Agreement are subject to the
satisfaction or waiver of the condition that no action, suit or
proceeding before any court or governmental or regulatory authority
will be pending, no investigation by any governmental or regulatory
authority will have been commenced, and no action, suit or proceeding
by any governmental or regulatory authority will have been threatened,
against McCall or SEACOR or any of the principals, officers or
directors of either of them, seeking to restrain, prevent or change
the transactions contemplated hereby or questioning the legality or
validity of any such transactions or seeking substantial damages in
connection with any such transactions.
Section 7.2. Conditions to SEACOR's Obligations. The obligations of
----------------------------------
SEACOR to effect the Merger and the other transactions contemplated by
this Agreement are also subject to the satisfaction or waiver of the
following conditions at or prior to the Closing:
(a) (i) The representations and warranties of McCall in
this Agreement or in any certificate delivered to SEACOR pursuant
hereto as of the date hereof will be deemed to have been made again at
and as of the Closing Date (without regard to any Schedule updates
furnished by McCall after the date hereof unless consented to by
SEACOR) and will then be true and correct in all material respects,
and (ii) McCall will have performed and complied in all material
respects with all agreements and conditions required by this Agreement
to be performed or complied with by McCall prior to or on the Closing
Date, except to the extent any such representation or warranty or
performance or compliance, as the case may be, is qualified by
materiality or by reference to the term "Material Adverse Effect", in
which case such representation or warranty or performance or
compliance shall be true and correct in all respects.
(b) There shall not have occurred any event or circumstance
that shall have resulted in or is reasonably likely to result in a
Material Adverse Effect with respect to McCall from the date of the
McCall Latest Balance Sheet to the Closing Date.
(c) All waiting periods applicable to the Merger under the
HSR Act shall have been terminated or shall have expired and no
condition shall have been imposed on McCall or SEACOR to
<PAGE>
obtain such termination that would require the divestiture of any of
either of such party's assets or otherwise have a Material Adverse
Effect on such party.
(d) All governmental and other material third-party
consents and approvals, if any, necessary to permit the consummation
of the transactions contemplated by this Agreement, including, but not
limited to, the transfer or obtaining of all material permits, or to
permit the continued operation of the business of McCall in
substantially the same manner after the Closing Date as immediately
prior to the Closing Date and otherwise consistent with the provisions
of this Agreement, shall have been received.
(e) The receipt by SEACOR of a certificate executed by the
Chief Executive Officer or Chief Financial Officer of McCall dated the
Closing Date, certifying that the conditions specified in Section
7.2(a) and (b) hereof have been fulfilled.
(f) McCall will have delivered to SEACOR, each dated as of
a date not earlier than five days prior to the Closing Date, (i)
copies of the certificates of incorporation or comparable documents of
McCall, including all amendments thereto, certified by the appropriate
government official of the jurisdiction of incorporation, (ii) to the
extent issued by such jurisdiction, certificates from the appropriate
governmental official to the effect that McCall is in good standing in
such jurisdiction and listing all organizational documents of McCall
on file, (iii) to the extent issued by such jurisdiction, a
certificate from the appropriate governmental official in each
jurisdiction in which McCall is qualified to do business to the effect
that such member is in good standing in such jurisdiction and (iv) to
the extent issued by such jurisdiction, certificates as to the tax
status of McCall in its jurisdiction of organization and each
jurisdiction in which such member is qualified to do business.
(g) The receipt by SEACOR of a letter of its independent
public accountants, Arthur Andersen LLP, to the effect that pooling-
of-interests accounting for the Merger (under Accounting Principles
Board Opinion No. 16) is appropriate, provided that the Merger is
consummated in accordance with the terms and subject to the conditions
of this Agreement.
(h) SEACOR shall have received from Jones, Walker,
Waechter, Poitevent, Carrere & Denegre, L.L.P., special counsel to
McCall, and Stockwell, Sievert, Viccellio, Clements and Shaddock,
L.L.P., counsel to McCall, opinions, dated as of the
<PAGE>
Closing Date, which, together, cover the matters set forth in Exhibit
D.
(i) Each of the McCall Stockholders shall have executed and
delivered the Investment and Registration Rights Agreement, an
Indemnification Agreement substantially in the form attached hereto as
Exhibit E (the "Indemnification Agreement").
(j) Norman F. McCall shall have executed and delivered the
Letter of Employment, in the form attached hereto as Exhibit F
regarding the terms of his employment with the Surviving Corporation
(the "Letter of Employment").
Section 7.3. Conditions to McCall's Obligations. The
----------------------------------
obligations of McCall to effect the Merger and the other transactions
contemplated by this Agreement are also subject to the satisfaction or
waiver of the following conditions at or prior to the Closing:
(a) (i) The representations and warranties of SEACOR in
this Agreement or in any certificate delivered to McCall pursuant
hereto as of the date hereof will be deemed to have been made again at
and as of the Closing Date (without regard to any Schedule updates
furnished by SEACOR after the date hereof unless consented to by
McCall) and will then be true and correct in all material respects,
and (ii) SEACOR will have performed and complied in all material
respects with all agreements and conditions required by this Agreement
to be performed or complied with by SEACOR prior to or on the Closing
Date, except to the extent any such representation or warranty or
performance or compliance, as the case may be, is qualified by
materiality or by reference to the term "Material Adverse Effect", in
which case such representation or warranty or performance or
compliance shall be true and correct in all respects.
(b) There shall not have occurred any event or circumstance
that shall have resulted in or is reasonably likely to result in a
Material Adverse Effect with respect to the SEACOR Affiliated Group
from the date of the SEACOR Latest Balance Sheet to the Closing Date;
provided, however, that a decline in the price per share of SEACOR
-------- -------
Common Stock on the NASDAQ Stock Market shall not in and of itself
constitute a Material Adverse Effect.
(c) The waiting periods (and any extensions thereof)
applicable to the Merger under the HSR Act shall have been terminated
or shall have expired.
(d) All governmental and other material consents and
approvals, if any, necessary to permit the consummation of the
<PAGE>
transactions contemplated by this Agreement shall have been received.
(e) The receipt by McCall of a certificate executed by the
Chief Executive Officer or Chief Financial Officer of SEACOR dated the
Closing Date, certifying that the conditions specified in Section
7.3(a) and (b) hereof have been fulfilled.
(f) SEACOR will have delivered to McCall, each dated as of
a date not earlier than five days prior to the Closing Date,
certificates from the appropriate governmental official to the effect
that SEACOR and Sub are in good standing in their respective
jurisdictions of incorporation and listing all charter documents of
such Persons on file.
(g) The receipt by McCall of an opinion from Weil, Gotshal
& Manges LLP, counsel to SEACOR, and Lugenbuhl, Burke, Wheaton, Peck,
Rankin & Hubbard, Louisiana counsel to SEACOR, which, together, cover
the matters set forth in Exhibit G attached hereto.
(h) SEACOR shall have executed and delivered the Letter of
Employment, the Investment and Registration Rights Agreement and the
Indemnification Agreement.
Section 7.4. Waiver of Conditions. Any condition to a party's
--------------------
obligation to effect the Merger hereunder may be waived by that party
in writing.
ARTICLE 8.
POST-CLOSING COVENANTS
Section 8.1. Indemnification of Directors and Officers of McCall.
---------------------------------------------------
(a)From and after the Effective Time of the Merger, SEACOR agrees to
indemnify and hold harmless, and to cause the Surviving Corporation to
honor its separate indemnification obligations to, each person who is
an officer or director of McCall on the date of this Agreement or has
served as such an officer or director at any time since January 1,
1993 (together with those persons discussed in the last sentence of
this subsection, an "Indemnified Person") from and against all
damages, liabilities, judgments and claims (and related expenses
including, but not limited to reasonable attorneys' fees and amounts
paid in settlement) based upon or arising from his or her capacity as
an officer or director of McCall, to the same extent he or she would
have been indemnified under the Certificate of Incorporation or By-
laws of McCall or under Section 83 of the LBCL as such documents were
in effect on the date of this Agreement.
<PAGE>
(b) The rights to indemnification granted by this Section
8.1 are subject to the following limitations: (i) the total aggregate
indemnification to be provided by SEACOR and/or the Surviving
Corporation pursuant to this Section 8.1 will not exceed, as to all of
the Indemnified Persons described herein as a group, the dollar amount
referred to in Clause (1) of the final sentence of Section 3.1(a), and
SEACOR shall have no responsibility to any Indemnified Person for the
manner in which such sum is allocated among that group (but the
Indemnified Persons may seek reallocation among themselves); (ii)
amounts otherwise required to be paid by SEACOR to an Indemnified
Person pursuant to this Section 8.1 shall be reduced by any amounts
that such Indemnified Person has recovered by virtue of the claim for
which indemnification is sought and SEACOR shall be reimbursed for any
amounts paid by SEACOR that such Indemnified Person subsequently
recovers by virtue of such claim; (iii) no Indemnified Person shall be
entitled to indemnification for any claim made or threatened prior to
the Closing Date of which such Indemnified Person or McCall was aware
but did not promptly disclose to SEACOR prior to the execution of this
Agreement; (iv) any claim for indemnification pursuant to this Section
8.1 must be submitted in writing to the Chief Executive Officer of
SEACOR promptly upon such Indemnified Person becoming aware of such
claim and, in no event, more than six years from the Effective Date,
provided that any such failure to advise promptly has a prejudicial
effect on SEACOR; (v) an Indemnified Person shall not settle any claim
for which indemnification is provided herein without the prior written
consent of SEACOR; and (vi) no indemnification is provided pursuant to
this Section 8.1 in respect of any Losses (as defined in the
Indemnification Agreement) to which SEACOR or any other indemnified
party is entitled to indemnification under the Indemnification
Agreement.
Section 8.2. Publication of Post-Merger Results. SEACOR shall
----------------------------------
use its reasonable best efforts to cause financial results covering at
least thirty days of post-Merger combined operations to be published
as soon as practicable after the passage of such thirty day period.
Section 8.3. Employee Benefits. Following the consummation of
-----------------
the Merger, the SEACOR Affiliated Group shall arrange to make
available to the employees of McCall the benefits listed on Schedules
4.17(a) and 4.17(b) in accordance with the terms of such benefit
plans, policies or arrangements; provided, that this covenant shall
not prohibit the SEACOR Affiliated Group from modifying or rescinding
such benefits thereafter to the extent such modification or rescission
is generally applicable to similarly situated SEACOR Affiliated Group
employees. McCall employees will receive credit for their prior
service with McCall
<PAGE>
for purposes of eligibility, vesting and, without duplication, benefit
accruals with respect to any SEACOR Affiliated Group plan in which
they participate to the same extent such prior service was credited
under similar benefit plans maintained by McCall.
ARTICLE 9.
TERMINATION
Section 9.1. Termination. This Agreement may be terminated and
-----------
the Merger contemplated herein abandoned at any time before the
Effective Time:
(a) By the mutual consent of the Boards of Directors of
McCall and SEACOR.
(b) By the Board of Directors of either McCall or SEACOR if
there has been a material breach by the other of any representation or
warranty contained in this Agreement or of any covenant contained in
this Agreement, which in either case cannot be, or has not been, cured
within 15 days after written notice of such breach is given to the
party committing such breach, provided that the right to effect such
cure shall not extend beyond the date set forth in Section 9.1(c)
below.
(c) By the Board of Directors of either McCall or SEACOR if
(i) all conditions to Closing required by Article 7 hereof have not
been met by or waived by November 20, 1996 (the "Termination Date"),
(ii) any such condition cannot be met by such date and has not been
waived by each party in whose favor such condition inures, or (iii)
the Merger has not occurred by such date; provided, however, that
-------- -------
neither McCall nor SEACOR shall be entitled to terminate this
Agreement pursuant to this subparagraph (c) if such party is in
willful and material violation of any of its representations,
warranties or covenants in this Agreement.
(d) If any governmental authority shall have issued an
order, decree or ruling or taken any other action permanently
enjoining, restraining or otherwise prohibiting the Merger and such
order, decree, ruling or other action shall have become final and
nonappealable.
Section 9.2. Effect of Termination. Upon termination of this
---------------------
Agreement pursuant to this Article 9, this Agreement shall be void and
of no effect and shall result in no obligation of or liability to any
party or their respective directors, officers, employees, agents or
shareholders, unless such termination was the result of an intentional
breach of any representation, warranty or covenant in this Agreement
in which case the party
<PAGE>
who breached the representation, warranty or covenant shall be liable
to the other party for damages, and all costs and expenses incurred in
connection with the preparation, negotiation, execution and
performance of this Agreement.
ARTICLE 10.
MISCELLANEOUS
Section 10.1. Notices. All notices hereunder must be in writing and
-------
will be deemed to have been duly given upon receipt of hand delivery;
certified or registered mail; return receipt requested; or telecopy
transmission with confirmation of receipt:
(a) If to SEACOR:
SEACOR Holdings, Inc.
1370 Avenue of the Americas
New York, New York 10019
Attention: Charles Fabrikant
with a copy to: Randall Blank
and to:
Weil Gotshal & Manges LLP
767 Fifth Avenue
New York, New York 10153
Attention: David E. Zeltner, Esq.
(b) If to McCall:
McCall's Boat Rentals, Inc.
432 Marshall Street
Cameron, Louisiana 70631
Attention: Norman F. McCall
with a copy to:
Stockwell, Sievert, Viccellio, Clements & Shaddock, L.L.P.
First National Bank Building
One Lakeside Plaza
P.O. Box 2900
Lake Charles, Louisiana 70602-2900
Attention: William E. Shaddock, Esq.
<PAGE>
and to:
Jones, Walker, Waechter, Poitevent, Carrere
& Denegre L.L.P.
Place St. Charles
201 St. Charles Avenue
51st Floor
New Orleans, Louisiana 70170-5100
Attention: Carl C. Hanemann, Esq.
Telecopy No.: (504) 582-8398
Such names and addresses may be changed by written notice to each
person listed above.
Section 10.2. Governing Law. This Agreement shall be governed
-------------
by, construed and interpreted in accordance with the laws of the State
of Louisiana, regardless of the laws that might otherwise govern under
applicable principles of conflicts of laws thereof.
Section 10.3. Counterparts. This Agreement may be executed in
------------
counterparts, each of which will be deemed an original but all of
which together will constitute one and the same instrument.
Section 10.4. Interpretation. (a) When a reference is made in
--------------
this Agreement to a Section, Exhibit or Schedule, such reference shall
be to a Section of, or an Exhibit or Schedule to, this Agreement
unless otherwise indicated. The table of contents and headings
contained in this Agreement are for reference purposes only and shall
not affect in any way the meaning or interpretation of this Agreement.
Whenever the words "include," "includes" or "including" are used in
this Agreement, they shall be deemed to be followed by the words
"without limitation."
Section 10.5. Entire Agreement; Severability. (a) This
------------------------------
Agreement, including the Exhibits and Schedules hereto, embodies the
entire agreement and understanding of the parties hereto in respect of
the subject matter contained herein. This Agreement supersedes all
prior agreements and understandings (whether written or oral) between
the parties with respect to such subject matter.
(b) If any provision of this Agreement is determined to be
invalid or unenforceable, in whole or in part, it is the parties'
intention that such determination will not be held to affect the
validity or enforceability of any other provision of this Agreement,
which provisions will otherwise remain in full force and effect.
<PAGE>
Section 10.6. Amendment and Modification. This Agreement may be
--------------------------
amended or modified only by written agreement of the parties hereto;
provided, however, that there shall be made no amendment that by law
-------- -------
requires approval by the stockholders of a party hereto without the
approval of such stockholders.
Section 10.7. Extension; Waiver. At any time prior to the
-----------------
Effective Time of the Merger, the parties may (a) extend the time for
the performance of any of the obligations or other acts of the other
parties, (b) waive any inaccuracies in the representations and
warranties contained in this Agreement or in any document delivered
pursuant to this Agreement or (c) waive compliance with any of the
agreements or conditions contained in this Agreement. The failure of
a party to insist upon strict adherence to any term of this Agreement
on any occasion shall not be considered a waiver or deprive that party
of the right thereafter to insist upon strict adherence to that term
or any other term of this Agreement. No waiver of any breach of this
Agreement shall be held to constitute a waiver of any other or
subsequent breach. Any waiver must be in writing.
Section 10.8. Binding Effect; Benefits. This Agreement will
------------------------
inure to the benefit of and be binding upon the parties hereto and
their respective successors and assigns. Nothing in this Agreement,
express or implied, is intended to confer on any Person other than the
parties hereto and their respective successors and assigns (and, to
the extent provided in Section 8.1, the Indemnified Persons and their
successors and assigns) any rights, remedies, obligations or
liabilities under or by reason of this Agreement.
Section 10.9. Assignability. This Agreement is not assignable
-------------
by any party hereto without the prior written consent of the other
parties.
Section 10.10. Expenses. Each of the parties hereto shall pay
--------
all of its own expenses relating to the transactions contemplated by
this Agreement, including without limitation the fees and expenses of
its own financial, legal and tax advisors.
Section 10.11. Gender and Certain Definitions. All words used
------------------------------
herein, regardless of the number and gender specifically used, shall
be deemed and construed to include any other number, singular or
plural, and any other gender, masculine, feminine or neuter, as the
context requires.
<PAGE>
IN WITNESS WHEREOF, the parties hereto have duly executed this
Agreement as of the date first written above.
SEACOR HOLDINGS, INC.
By:/s/ Milton Rose
-----------------------
Name: Milton Rose
Title: Vice-President
SEACOR N.F., INC.
By:/s/ Milton Rose
-----------------------
Name: Milton Rose
Title: President
N.F. MCCALL CREWS, INC.
By:/s/Norman McCall
-----------------------
Name: Norman McCall
Title: President
<PAGE>
STATE OF LOUISIANA
PARISH OF CALCASIEU
On this 30th day of May, 1996, before me, a Notary Public in
and for the State and County aforesaid, personally appeared
Milton Rose, known by me to be the person of the above name
and an officer of SEACOR Holdings, Inc. duly authorized to execute
this Agreement and Plan of Merger on behalf of such corporation, who
signed and executed the foregoing instrument on behalf of such
corporation.
/s/ Stewart Peck
-----------------------------------
Notary Public
My Commission Expires: at death
-------------
STATE OF LOUISIANA
PARISH OF CALCASIEU
On this 30th day of May, 1996, before me, a Notary Public in
and for the State and County aforesaid, personally appeared
Milton Rose, known by me to be the person of the above name
and an officer of SEACOR N.F., Inc. duly authorized to execute this
Agreement and Plan of Merger on behalf of such corporation, who signed
and executed the foregoing instrument on behalf of such corporation.
/s/ Stewart Peck
-----------------------------------
Notary Public
My Commission Expires: at death
-------------
STATE OF LOUISIANA
PARISH OF CALCASIEU
On this 30th day of May, 1996, before me, a Notary Public in
and for the State and Parish aforesaid, personally appeared
Norman McCall, known by me to be the person of the above name
and an officer of N.F. McCall Crews, Inc. duly authorized to execute
this Agreement and Plan of Merger on behalf of such corporation, who
signed and executed the foregoing instrument on behalf of such
corporation.
/s/ Stewart Peck
-----------------------------------
Notary Public
My Commission Is For Life.
<PAGE>
CERTIFICATION
I, Mary Liles, Assistant Secretary of SEACOR N.F., Inc., a
Louisiana corporation, (the "Corporation"), hereby certify that the
above and foregoing Agreement and Plan of Merger dated as of May 31,
1996, and the execution thereof by the officer designated on behalf of
the corporation, was approved by Unanimous Written Consent of the
Board of Directors of the Corporation dated May 31, 1996, and by all
of the owners and holders of record of the issued and outstanding
shares of stock of the Corporation by Unanimous Written Consent of
Shareholders dated May 31, 1996, copies of which Unanimous Written
Consents have been filed in the records of proceedings and minutes of
the Board of Directors and shareholders of the Corporation.
May 31, 1996
/s/ Mary Liles
-------------------------
Assistant Secretary
I, Joyce C. McCall, Secretary of N.F. McCall Crews, Inc.,
a Louisiana corporation, (the "Corporation"), hereby certify that the
above and foregoing Agreement and Plan of Merger dated as of May 31,
1996, and the execution thereof by the officer designated on behalf of
the corporation, was approved by Unanimous Written Consent of the
Board of Directors of the Corporation dated May 31, 1996, and by all
of the owners and holders of record of the issued and outstanding
shares of stock of the Corporation by Unanimous Written Consent of
Shareholders dated May 31, 1996, copies of which Unanimous Written
Consents have been filed in the records of proceedings and minutes of
the Board of Directors and shareholders of the Corporation.
May 31, 1996
/s/ Joyce C. McCall
-------------------------
Secretary
NYFS11...:\93\73293\0011\1196\AGR6046M.540
EXHIBIT 2.4
EXCHANGE AGREEMENT
RELATING TO McCALL CREWBOATS, L.L.C.
by and among
SEACOR HOLDINGS, INC.
and
THE PERSONS LISTED ON THE
SIGNATURE PAGES HEREOF
Dated as of May 31, 1996
<PAGE>
TABLE OF CONTENTS
Page
ARTICLE 1.
DEFINITIONS . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Section 1.1. Definitions . . . . . . . . . . . . . . . . . 2
ARTICLE 2.
THE CLOSING . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
Section 2.1. Closing . . . . . . . . . . . . . . . . . . . 9
ARTICLE 3.
EXCHANGE OF SHARES . . . . . . . . . . . . . . . . . . . . . . . 9
Section 3.1. Exchange of Company Interests . . . . . . . . 9
Section 3.2. Exchange of SEACOR Shares . . . . . . . . . . 9
Section 3.3. Assignment of Company Interests; Transfer of
Exchanged Shares . . . . . . . . . . . . . 10
Section 3.4. Determination of Final Adjusted Net Assets . 10
Section 3.5. Registration Rights Agreement; Restrictive
Endorsement . . . . . . . . . . . . . . . 11
ARTICLE 4.
REPRESENTATIONS AND WARRANTIES OF MEMBERS . . . . . . . . . . . . 12
Section 4.1. Organization and Citizenship . . . . . . . . 12
Section 4.2. Affiliated Entities . . . . . . . . . . . . . 12
Section 4.3. Capitalization . . . . . . . . . . . . . . . 12
Section 4.4. Authority; Enforceable Agreement . . . . . . 13
Section 4.5. No Conflicts or Consents . . . . . . . . . . 13
Section 4.6. LLC Documents . . . . . . . . . . . . . . . . 14
Section 4.7. Financial Statements; Liabilities . . . . . . 14
Section 4.8. Accounts Receivable . . . . . . . . . . . . . 14
Section 4.9. Absence of Certain Changes or Events . . . . 15
Section 4.10. Contracts . . . . . . . . . . . . . . . . . . 17
Section 4.11. Properties and Leases other than Vessels . . 17
Section 4.12. Condition of the Company's Assets Other than
Vessels . . . . . . . . . . . . . . . . . 19
Section 4.13. Vessels . . . . . . . . . . . . . . . . . . . 19
Section 4.14. Acounting Matters . . . . . . . . . . . . . . 20
Section 4.15. Suppliers and Customers . . . . . . . . . . . 20
Section 4.16. Employee . . . . . . . . . . . . . . . . . . 21
<PAGE>
Page
Section 4.17. Employee Benefit Plans. . . . . . . . . . . . 22
Section 4.18. Tax Matters . . . . . . . . . . . . . . . . . 24
Section 4.19. Litigation . . . . . . . . . . . . . . . . . 26
Section 4.20. Insurance . . . . . . . . . . . . . . . . . . 26
Section 4.21. Environmental Compliance . . . . . . . . . . 27
Section 4.22. Compliance With Law; Permits . . . . . . . . 28
Section 4.23. Interests in Clients, Suppliers, Etc. . . . . 29
Section 4.24. Transactions With Related Parties . . . . . . 29
Section 4.25. Broker's and Finder's Fee . . . . . . . . . . 29
Section 4.26. Disclosure . . . . . . . . . . . . . . . . . 29
Section 4.27. Intellectual Property . . . . . . . . . . . . 29
ARTICLE 5.
REPRESENTATIONS AND WARRANTIES OF SEACOR . . . . . . . . . . . . 30
Section 5.1. Organization and Citizenship . . . . . . . . 30
Section 5.2. Capitalization . . . . . . . . . . . . . . . 31
Section 5.3. Authority; Enforceable Agreements . . . . . . 31
Section 5.4. No Conflicts or Consents . . . . . . . . . . 31
Section 5.5. Corporate Documents . . . . . . . . . . . . . 32
Section 5.6. SEC Documents; Financial Statements;
Liabilities. . . . . . . . . . . . . . . . 32
Section 5.7. Absence of Certain Changes or Events . . . . 33
Section 5.8. Contracts . . . . . . . . . . . . . . . . . . 33
Section 5.9. Litigation . . . . . . . . . . . . . . . . . 34
Section 5.10. Legality of SEACOR Common Stock . . . . . . . 34
Section 5.11. Broker's and Finder's Fee . . . . . . . . . . 34
ARTICLE 6.
CERTAIN DELIVERIES AT CLOSING . . . . . . . . . . . . . . . . . . 34
Section 6.1. Certain Deliveries to SEACOR . . . . . . . . 34
Section 6.2. Certain Deliveries to the Members . . . . . . 35
ARTICLE 7.
[INTENTIONALLY OMITTED] . . . . . . . . . . . . . . . . . . . . . 35
ARTICLE 8.
MISCELLANEOUS . . . . . . . . . . . . . . . . . . . . . . . . . . 35
Section 8.1. Notices . . . . . . . . . . . . . . . . . . . 35
Section 8.2. Governing Law . . . . . . . . . . . . . . . . 37
Section 8.3. Counterparts . . . . . . . . . . . . . . . . 37
Section 8.4. Interpretation . . . . . . . . . . . . . . . 37
<PAGE>
Page
Section 8.5. Entire Agreement; Severability. . . . . . . . 37
Section 8.6. Amendment and Modification . . . . . . . . . 37
Section 8.7. Extension; Waiver . . . . . . . . . . . . . . 37
Section 8.8. Binding Effect; Benefits . . . . . . . . . . 38
Section 8.9. Assignability . . . . . . . . . . . . . . . . 38
Section 8.10. Expenses . . . . . . . . . . . . . . . . . . 38
Section 8.11. Gender and Certain Definitions . . . . . . . 38
<PAGE>
EXHIBITS AND SCHEDULES
EXHIBITS
Exhibit A . . . . . . . . Vessels
Exhibit B . . . . . . . . Members
Exhibit C . . . . . . . . Investment and Registration Rights
Agreement
Exhibit D . . . . . . . . Opinion of Members' Counsel
Exhibit E . . . . . . . . Indemnification Agreement
Exhibit F . . . . . . . . Opinion of SEACOR's Counsel
SCHEDULES(1)
Schedule 4.2(a) . . . . . Company
Schedule 4.2(b) . . . . . Rights to Acquire Securities
Schedule 4.5(a) . . . . . Certain Conflicts
Schedule 4.5(b) . . . . . Consents/Approval Required
Schedule 4.7 . . . . . . Disclosed Liabilities
Schedule 4.8 . . . . . . Accounts Receivable
Schedule 4.9 . . . . . . Certain Changes
Schedule 4.10(a) . . . . Certain Contracts
Schedule 4.10(b) . . . . Material Contracts
Schedule 4.11(a) . . . . Encumbrances on Property
Schedule 4.11(c) . . . . Above Market Rate Leases
Schedule 4.11(d) . . . . Real Property and Leases
Schedule 4.13(a) . . . . Vessels and Liens on Vessels
Schedule 4.13(b) . . . . Leased Vessels
Schedule 4.13(c) . . . . Leases/Charters of Vessels between
Members of the Company
Schedule 4.13(d) . . . . Certain Defects with Vessels
Schedule 4.15 . . . . . . Suppliers and Customers
Schedule 4.16(a) . . . . Certain Employees
Schedule 4.17(a) . . . . Employee Plans
Schedule 4.17(b) . . . . Employee Benefit Arrangements
Schedule 4.17(c) . . . . Modifications to Employee Benefit Plans
and Arrangements
Schedule 4.17(e) . . . . Compliance with Employee Plans
________________
(1) All the above Schedules relate to the Company unless
otherwise indicated.
<PAGE>
Schedule 4.17(j) . . . . Litigation Re Employee Plan or Benefit
Arrangements
Schedule 4.17(k) . . . . Certain Employees with Rights to Certain
Entitlements
Schedule 4.17(l) . . . . Benefits to Non-employee Members and
Directors
Schedule 4.18(d) . . . . Material Tax Elections
Schedule 4.18(f) . . . . Returns Filed in State and Foreign
Jurisdictions
Schedule 4.19 . . . . . . Litigation
Schedule 4.20(a) . . . . Insurance Policies
Schedule 4.20(b) . . . . Protection or Indemnity Clubs
Schedule 4.21(a) . . . . Noncompliance with Environmental Laws
Schedule 4.21(b) . . . . Environmental Administrative or Judicial
Proceedings
Schedule 4.21(c) . . . . Above Ground and Underground Tanks
Schedule 4.21(d) . . . . Hazardous Materials
Schedule 4.23 . . . . . . Officers'/Directors' Relationships with
Competitors of the Company
Schedule 4.24(a) . . . . Interested Officers'/Directors'
Transactions
Schedule 4.24(b) . . . . Claims of Certain Officers and Directors
Schedule 4.27 . . . . . . Intellectual Property
Schedule 5.8 . . . . . . Material Contracts of SEACOR
Schedule 5.9 . . . . . . Litigation Involving SEACOR
Schedule 6.3(d) . . . . . Disposed of/Sold Vessels
Schedule 6.3(e) . . . . . Indebtedness
Schedule 6.3(f) . . . . . New Capital Expenditures
NYFS11...:\93\73293\0011\1196\EDG6066W.440
<PAGE>
EXCHANGE AGREEMENT
-------------------
RELATING TO McCALL CREWBOATS, L.L.C.
-------------------------------------
EXCHANGE AGREEMENT, dated as of May 31, 1996, among SEACOR
Holdings, Inc., a Delaware corporation ("SEACOR"), and the persons
listed on the signature pages hereto (collectively, "Members", and
each a "Member").
W I T N E S S E T H:
-------------------
WHEREAS, Members are the sole members of McCall Crewboats,
L.L.C., a Louisiana limited liability company (the "Company"), and own
100% of the membership interests in the Company (the "Company
Interests"); and
WHEREAS, SEACOR, SEACOR Enterprises, Inc., a Louisiana
corporation and a direct wholly owned subsidiary of SEACOR ("SEACOR
Enterprises"), and McCall Enterprises Inc. are parties to an Agreement
and Plan of Merger of even date herewith (the "Merger Agreement")
pursuant to which SEACOR Enterprises has on this date been merged with
and into McCall Enterprises Inc. (the "Merger") and, as a result
thereof, McCall Enterprises Inc. has become a direct wholly owned
subsidiary of SEACOR; and
WHEREAS, upon the terms and subject to the conditions set forth
herein, Members desire to transfer and assign to SEACOR, and SEACOR
desires to acquire from Members, the Company Interests owned by
Members in exchange for SEACOR Shares (as defined in Section 3.2(a))
(the "Acquisition");
NOW, THEREFORE, in consideration of the representations,
warranties and covenants contained herein, the parties agree as
follows:
<PAGE>
ARTICLE 1.
DEFINITIONS
Section 1.1. Definitions. As used in this Agreement, the
-----------
following terms when capitalized have the meanings indicated:
"Acquisition" shall have the meaning ascribed to such term in the
premises to this Agreement.
"Adjusted Net Assets" shall mean an amount equal to the
consolidated assets, other than Vessel Assets, of the Company and its
subsidiaries (including, but not limited to, cash and cash
equivalents, marketable securities, deposits, accounts receivable and
prepaid expenses) determined in accordance with GAAP (except as
provided in the provisos to this definition) reduced by the following:
(i) the book value of all personal property (including, without
limitation, vehicles, office equipment and furniture) and
improvements; (ii) appropriate reserves under GAAP; (iii) investments
in any of the Companies or SEAMAC LLC; and (iv) all liabilities
(including notes payable to current stockholders) as determined in
accordance with GAAP other than deferred taxes related to Vessel
Assets; provided, however, that (a) Adjusted Net Assets shall be
-------- -------
increased by the expenses of any drydockings of Company Vessels
incurred by the Company or its subsidiaries between the date hereof
and the Closing (but not the expenses of moving the vessels to the
dock) and (b) Adjusted Net Assets shall be calculated on the
assumption that, if the Company currently accounts on a cash basis, it
converted to accounting on an accrual basis (and any Tax liability
currently payable as a result of such conversion shall be taken into
account) and, provided further, in the event that, prior to the
-------- -------
Closing, any of the Company Vessels is sold or is subject to a total
loss or constructive total loss, the amount of Adjusted Net Assets
shall be (1) increased by the amount, if any, by which the proceeds
from such sale or the proceeds (including any amount recoverable from
insurance or other sources) from such loss (the "Disposition
Proceeds") exceed the value for such vessel set forth on Exhibit A
hereto, and (2) decreased by the amount, if any, by which the value
for such vessel set forth on Exhibit A hereto exceeds the Disposition
Proceeds.
"Affiliate" shall have the meaning ascribed to such term by Rule
12b-2 promulgated under the Exchange Act.
"Agreement" shall mean this Exchange Agreement and Plan of
Reorganization, including the Schedules and Exhibits hereto, all as
amended or otherwise modified from time to time.
"Arbitrator" shall have the meaning ascribed to such term in
Section 3.4(b).
<PAGE>
"Average Market Price" shall mean $35.142, which represents the
average of the daily closing sale price per share of SEACOR Common
Stock on the NASDAQ Stock Market for the 60 consecutive calendar days
that ended on April 16, 1996, the second trading day prior to the date
of signing of a letter of intent with respect to the transactions
contemplated hereby.
"Benefit Arrangement" means any employment, severance or similar
contract, or any other contract, plan, policy or arrangement (whether
or not written) providing for compensation, bonus, profit-sharing,
stock option or other stock related rights or other forms of incentive
or deferred compensation, vacation benefits, insurance coverage
(including any self-insured arrangement), health or medical benefits,
disability benefits, severance benefits and post-employment or
retirement benefits (including compensation, pension, health, medical
or life insurance benefits), other than the Employee Plans, that (A)
is maintained, administered or contributed to by the employer or the
employer has any obligation or liability (contingent or otherwise) and
(B) covers any employee or former employee or director of the
employer.
"Business Day" shall mean a day other than a Saturday, a Sunday
or a day on which national banks or the NASDAQ Stock Market is closed.
"Closing" shall have the meaning ascribed to such term in Section
2.1.
"Closing Balance Sheet" shall have the meaning ascribed to such
term in Section 3.4(a).
"Closing Date" shall have the meaning ascribed to such term in
Section 2.1.
"Code" shall mean the Internal Revenue Code of 1986, as amended.
"Companies" shall mean McCall Enterprises, Inc., McCall's Boat
Rentals, Inc., Gulf Marine Transportation, Inc., Carroll McCall, Inc.,
McCall Marine Services, Inc., Cameron Boat Rentals, Inc., Gladys
McCall, Inc., Cameron Crews, Inc., Philip Alan McCall, Inc., N.F.
McCall Crews, Inc., McCall Crewboats, L.L.C. and McCall Support
Vessels, Inc.
"Company Interests" shall have the meaning ascribed to such term
in the premises to this Agreement.
"Company Vessels" shall have the meaning ascribed to such term in
Section 4.13(a).
<PAGE>
"Contract" means any contract, charter, agreement, lease,
indenture, note, bond, instrument, lien, conditional sales contract,
mortgage, license, franchise, insurance policy, commitment or other
binding understanding or arrangement, whether written or oral.
"Employee Plan" means an employee benefit plan or arrangement as
defined in Section 3(3) of ERISA, that is maintained, administered or
contributed to by the employer or the employer has any obligation or
liability (contingent or otherwise) and covers any employee or former
employee of the employer.
"Environmental Laws" means all federal, state, local and foreign
laws, common law duties, ordinances, codes, regulations and other
legally binding obligations relating to pollution, the protection of
the environment, human health and safety or natural resources,
including, without limitation, all such laws governing the operation
of business, each Company Vessel, the generation, use, collection,
treatment, storage, transportation, recovery, removal, discharge or
disposal of Hazardous Substances or wastes and all such laws imposing
record-keeping, maintenance, testing, inspection, notification and
reporting requirements with respect to Hazardous Substances.
"Environmental Permits" shall have the meaning ascribed to such
term in Section 4.21(a).
"ERISA" means the Employee Retirement Income Security Act of
1974, as amended, and the applicable regulations promulgated
thereunder.
"Estimated Adjusted Net Assets" shall mean ($1,458,602).
"Exchange Act" shall mean the Securities Exchange Act of 1934, as
amended.
"Final Adjusted Net Assets" shall have the meaning ascribed to
such term in Section 3.4(b).
"Fractional Payment" shall have the meaning ascribed to such term
in Section 3.2(b).
"GAAP" shall mean generally accepted accounting principles in the
United States of America as in effect from time to time set forth in
the opinions and pronouncements of the Accounting Principles Board and
the American Institute of Certified Public Accountants and the
statements and pronouncements of the Financial Accounting Standards
Board, or in such other statements by such other entity as may be in
general use by significant segments of the accounting profession,
which are applicable to the circumstances as of the date of
determination.
<PAGE>
"Hazardous Substances" means any and all wastes, materials or
substances defined, regulated or classified as "hazardous substances,"
"hazardous wastes," "hazardous constituents" or words of similar
meaning in (i) the Comprehensive Environmental Response, Compensation
and Liability Act of 1980, 42 U.S.C. Sections 9601 et seq., as amended by
-- ---
the Superfund Amendments and Reauthorization Act of 1986, and any
amendments thereto and regulations thereunder; (ii) the Resource
Conservation and Recovery Act of 1976, 42 U.S.C. Sections 6901 et seq., as
-- ---
amended by the Hazardous and Solid Waste Amendments of 1984, and any
amendments thereto and regulations thereunder; (iii) the Oil Pollution
Act of 1990, 33 U.S.C. Sections 2701 et seq., and any amendments thereto
-- ---
and regulations thereunder; or (iv) any other Environmental Law.
"HSR Act" shall mean the Hart-Scott-Rodino Antitrust Improvements
Act of 1976, as amended.
"Indemnification Agreement" shall have the meaning ascribed to
such term in Section 6.2(g).
"Intellectual Property Right" means any trademark, service mark,
trade name, patent, trade secret, copyright, know-how or other type of
intellectual property right (including any registrations or
applications for registration of any of the foregoing).
"Investment and Registration Rights Agreement" shall have the
meaning ascribed to such term in Section 3.5(a).
"IRS" shall have the meaning ascribed to such term in Section
4.17(a).
"Knowledge of SEACOR" shall mean the actual knowledge of Charles
Fabrikant, Randall Blank or Milton R. Rose (all being executive
officers of SEACOR) without any obligation to conduct any inquiry
outside the ordinary course of business.
"Knowledge of Members" shall mean the actual knowledge of Norman
F. McCall, H. Alan McCall, Joseph K. McCall and Phyllis McCall
Johnston without any obligation to conduct any inquiry outside the
ordinary course of business.
"LLCL" shall mean the Limited Liabilities Companies Law of the
State of Louisiana, as amended.
"Liens" shall mean pledges, liens, encumbrances, rights in rem,
defects, leases, licenses, equities, conditional sales contracts,
charges, claims, encumbrances, security
<PAGE>
interests, easements, restrictions, chattel mortgages, mortgages or
deeds of trust, of any kind or nature whatsoever.
"Material Adverse Effect" shall mean, with respect to any party,
a material adverse effect on the financial condition, results of
operations, business or prospects of such party.
"Material Contract" shall have the meaning ascribed to such term
in Section 5.8.
"McCall Audited Financial Statements" shall mean the audited
combined balance sheet and related combined statements of income,
stockholders' equity and cash flows, and the related notes thereto, of
the Companies as of and for the years ended December 31, 1994 and
1995.
"McCall Financial Statements" shall mean the McCall Audited
Financial Statements and the McCall Interim Financial Statements,
collectively.
"McCall Interim Financial Statements" shall mean the unaudited
combined balance sheet, and the related unaudited combined statements
of income and cash flows, of the Companies as of and for the three-
month period ended March 31, 1996.
"McCall Latest Balance Sheet" shall mean the combined balance
sheet of the Companies included in the McCall Interim Financial
Statements.
"Merger" shall have the meaning ascribed to such term in the
premises to this Agreement.
"Merger Agreement" shall have the meaning ascribed to such term
in the premises to this Agreement.
"Multiemployer Plan" means a plan or arrangement as defined in
Section 4001(a)(3) and 3(37) of ERISA.
"Permitted Liens" shall mean any mechanic's, worker's,
materialmen's, maritime or other liens arising as a matter of law in
the ordinary course of business consistent with past practice.
"Person" shall mean an individual, firm, corporation, general or
limited partnership, limited liability company, limited liability
partnership, joint venture, trust, governmental authority or body,
association, unincorporated organization or other entity.
<PAGE>
"Pre-Closing Periods" shall mean all tax periods ending at or
before the Closing Date and, with respect to any tax period that
includes but does not end at the Closing Date, the portion of such
period that ends at and includes the Closing Date.
"Registration Statement" shall mean the registration statement on
Form S-3 to be filed by SEACOR with the SEC for the purpose, among
other things, of registering the SEACOR Shares which will be issued to
the Members following consummation of the transactions contemplated
thereby.
"Returns" shall mean all returns, reports, estimates,
declarations, information return, statement or other similar documents
relating to Taxes, including any schedule or attachment thereto, and
including any amendment thereof.
"SEACOR Affiliated Group" shall mean SEACOR and its subsidiaries
other than the Companies.
"SEACOR Audited Financial Statements" shall mean the audited
consolidated balance sheets, and the related consolidated statements
of earnings, stockholders' equity and cash flows, and the related
notes thereto, of SEACOR and its subsidiaries as of and for the years
ended December 31, 1994 and 1995.
"SEACOR Common Stock" shall mean shares of common stock, $.01 par
value per share, of SEACOR.
"SEACOR Financial Statements" shall mean the SEACOR Audited
Financial Statements and the SEACOR Interim Financial Statements.
"SEACOR Interim Financial Statements" shall mean the unaudited
consolidated balance sheet, and the related consolidated unaudited
statements of earnings and cash flows, of SEACOR and its subsidiaries
as of and for the three month period ended March 31, 1996.
"SEACOR Latest Balance Sheet" shall mean the consolidated balance
sheet included in the SEACOR Interim Financial Statements.
"SEACOR SEC Documents" shall have the meaning ascribed to such
term in Section 5.6(a).
"SEACOR Shares" shall have the meaning ascribed to such term in
Section 3.2(a).
"SEC" shall mean the Securities and Exchange Commission of the
United States.
<PAGE>
"Securities Act" shall mean the Securities Act of 1933, as
amended.
"Member Representative" shall mean Norman F. McCall, who has been
appointed by the unanimous written consent of the Members as their
representative for purposes of Section 3.4 hereof or any successor as
Member Representative appointed in accordance with the terms of the
Indemnification Agreement.
"Taxes" means all taxes, charges, fees, imposts, levies or other
assessments, including, without limitation, all net income, gross
receipts, sales, use, ad valorem, value added, transfer, franchise,
profits, inventory, capital stock, license, withholding, payroll,
employment, social security, unemployment, excise, severance, stamp,
occupation, property taxes, customs duties, fees, assessments and
charges of any kind whatsoever, together with any interest and any
penalties, additions to tax or additional amounts imposed by any
taxing authority (domestic or foreign) and any interest or penalties
imposed with respect to the filing, obligation to file or failure to
file any Return, and shall include any transferee liability in respect
of Taxes.
"Termination Date" shall have the meaning ascribed to such term
in Section 7.1(c).
"Undisclosed Liabilities" shall have the meaning ascribed to such
term in Section 4.7.
"Vessel Assets" shall mean (i) the vessels listed on Exhibit A
hereto, all spare parts, stores and supplies, fuel and lubes (whether
onboard or ashore), and all investments by the Company in the
Companies, (ii) the proceeds of the sale of any such vessel sold by
the Company between the date hereof and the Closing Date and (iii) the
proceeds (including any amount recoverable from insurance or other
sources) from total loss, nontotal loss or constructive loss of any
such vessel between the date hereof and the Closing Date.
ARTICLE 2.
THE CLOSING
Section 2.1. Closing. The closing of the transactions
-------
contemplated herein (the "Closing") has taken place, contemporaneously
with the execution and delivery hereof, at the offices of Stockwell,
Sievert, Viccellio, Clements & Shaddock at 1 Lakeside Plaza, 4th
Floor, Lake Charles, Louisiana, on May 31, 1996 (the "Closing Date").
At the Closing, the parties have delivered the documents, certificates
and opinions required to be delivered by Article 6 hereof.
<PAGE>
ARTICLE 3.
EXCHANGE OF SHARES
Section 3.1. Exchange of Company Interests. Upon the terms and
-----------------------------
subject to the conditions set forth in this Agreement, each of the
Members hereby sells, assigns and transfers to SEACOR, and SEACOR
hereby purchases and acquires from each of the Members, on the Closing
Date, the Company Interests owned by such Member.
Section 3.2. Exchange of SEACOR Shares. (a) Upon the terms and
-------------------------
subject to the conditions set forth in this Agreement, SEACOR agrees
to deliver to each of the Members in exchange for the Company Interest
owned by such Member, as set forth on Exhibit B hereto, such number of
fully paid and nonassessable shares of SEACOR Common Stock ("SEACOR
Shares") as shall be equal to one-third (1/3) of the Total Exchanged
Shares (as hereinafter defined). For purposes hereof, the "Total
Exchanged Shares" shall mean a number of shares of SEACOR Common Stock
equal to the quotient obtained by dividing (1) the sum of $116,398
plus the amount, if any, by which the Final Adjusted Net Assets
exceeds the Estimated Adjusted Net Assets or less the amount, if any,
by which the Estimated Adjusted Net Assets exceeds the Final Adjusted
Net Assets, by (2) the Average Market Price.
--
(b) In lieu of the issuance of fractional shares of SEACOR
Common Stock, each of the Members shall be entitled to receive a cash
payment (without interest) (each a "Fractional Payment" and,
collectively, the "Fractional Payments") equal to the fair market
value of a fraction of a share of SEACOR Common Stock to which such
Member would be entitled to but for this provision. For purposes of
calculating such cash payment, the fair market value of a fraction of
a share of SEACOR Common Stock shall be such fraction multiplied by
the Average Market Price.
Section 3.3. Assignment of Company Interests; Transfer of
--------------------------------------------
Exchanged Shares. The Members shall execute and deliver to SEACOR
----------------
such an assignment of all Company Interests (the "Assignment") and
such an Amendment to the Operating Agreement of the Company as SEACOR
may reasonably request, in forms reasonably satisfactory to SEACOR.
Each of the Members hereby waives on their own behalf and on behalf of
the Company any rights of first refusal in connection with the
transactions contemplated and hereby elects SEACOR a member of the
Company. As soon as practicable after the determination of Final
Adjusted Net Assets, SEACOR shall deliver the SEACOR Shares and the
Fractional Payments required under this Agreement to the Members.
Section 3.4. Determination of Final Adjusted Net Assets. (a)
------------------------------------------
Within 60 days after the Closing Date, SEACOR shall prepare in
accordance with GAAP and deliver to the Member Representative, a
consolidated closing date balance sheet for the Company and its
<PAGE>
subsidiaries as of the Closing Date (the "Closing Balance Sheet"),
which shall be accompanied by a computation of the Adjusted Net Assets
based thereon.
(b) The Member Representative shall have a period of 15
days to review the Closing Balance Sheet and the accompanying calcu-
lation of the Adjusted Net Assets following delivery thereof by
SEACOR. During such period, SEACOR shall afford the Member
Representative access to any of its books, records and work papers
necessary to enable the Member Representative to review the Closing
Balance Sheet and the accompanying calculation of the Adjusted Net
Assets. The Member Representative may dispute any amounts reflected
in the Adjusted Net Assets by giving notice in writing to SEACOR
specifying each of the disputed items and setting forth in reasonable
detail the basis for such dispute. Failure by the Member
Representative to dispute the amounts reflected in the Adjusted Net
Assets within 15 days of delivery of the Closing Balance Sheet by
SEACOR shall be deemed an acceptance thereof by the Member
Representative. If, within 30 days after delivery by the Member
Representative to SEACOR of any notice of dispute in accordance with
this Section 3.4(b), the Member Representative and SEACOR are unable
to resolve all of such disputed items, then any remaining items in
dispute shall be submitted to an independent nationally recognized
accounting firm selected in writing by SEACOR and the Member
Representative or, if SEACOR and the Member Representative fail or
refuse to select such a firm within ten Business Days after request
therefor by SEACOR or the Member Representative, such an independent
nationally recognized accounting firm shall be selected in accordance
with the rules of the American Arbitration Association (the "Arbi-
trator"). The Arbitrator shall determine the remaining disputed items
and report to SEACOR and the Member Representative with respect to
such items. The Arbitrator's decision shall be final, conclusive and
binding on all parties. The fees and disbursements of the Arbitrator
shall be borne equally by the Members and SEACOR. The Adjusted Net
Assets if undisputed or deemed undisputed or as determined by the
mutual agreement of SEACOR and the Member Representative or by the
Arbitrator in accordance with the procedure outlined above shall be
the "Final Adjusted Net Assets."
Section 3.5. Registration Rights Agreement; Restrictive
------------------------------------------
Endorsement. (a) The issuance of the SEACOR Shares to Members
-----------
pursuant to this Agreement will not be registered under the Securities
Act, or any state securities laws, in reliance upon certain exemptions
from registration contained therein and, therefore, will be subject to
restrictions on transfer. Pursuant to the terms and conditions of the
Investment and Registration Rights Agreement, in substantially the
form attached hereto as Exhibit C (the "Investment and Registration
Rights Agreement"), Members shall have certain rights to require the
registration of the resale by Members of their SEACOR Shares. Members
are the record and beneficial owners of such Company Interests as are
set forth opposite their respective names on Exhibit B hereto.
<PAGE>
(b) Each certificate representing of SEACOR Shares to be
issued to the Members pursuant to this Agreement shall be stamped with
a legend in substantially the following form:
"The Shares represented by this certificate have not been
registered under the Securities Act of 1933, as amended, or any
state securities law, and may not be transferred, sold or
otherwise disposed of in the absence of such registration or an
exemption therefrom. Such Shares may be transferred only in
compliance with the conditions specified in the Investment and
Registration Rights Agreement, dated as of May 31, 1996, between
the Issuer and the other entities and individuals party thereto,
a complete and correct copy of which is available for inspection
at the principal office of the Issuer and will be furnished to
the Holder hereof upon written request and without charge."
ARTICLE 4.
REPRESENTATIONS AND WARRANTIES OF MEMBERS
Members represent and warrant to SEACOR as follows:
Section 4.1. Organization and Citizenship. (a) The Company is
----------------------------
a limited liability company duly organized, validly existing and in
good standing under the laws of the state of its organization and has
all power and authority to carry on its business as now being
conducted and to own, lease and operate its properties. The Company
is duly qualified to do business and is in good standing in each state
and foreign jurisdiction in which the character or location of the
properties owned or leased by it or the nature of the business
conducted by it makes such qualification necessary, except where the
failure to be so qualified or in good standing would not have a
Material Adverse Effect on the Company.
(b) The Company and its Members are and at all times have
been citizens of the United States within the meaning of Section 2 of
the Shipping Act, 1916, as amended, for the purposes of owning and
operating vessels in the U.S. coastwise trade. None of the Members is
a "foreign person" within the meaning of Section 1445 of the Code.
Section 4.2. Affiliated Entities. (a) Schedule 4.2(a) lists
-------------------
each member of the Company. All Company Interests have been duly
authorized and validly issued and are fully paid and nonassessable and
are not subject to preemptive rights and, except as set forth in
Schedule 4.2(a), are owned by the Members free and clear of all Liens.
<PAGE>
(b) Except as listed on Schedule 4.2(b), the Company does
not, directly or indirectly, own of record or beneficially, or have
the right or obligation to acquire, any outstanding securities or
other interest in any Person.
Section 4.3. Capitalization. (a) The initial contribution to
--------------
the capital of the Company was $3,000.00 fully paid by Members who are
the sole owners of the Company Interests. There is no existing
subscription, option, warrant, call, right, commitment or other
agreement to which the Company is a party requiring, and there are no
derivative securities of the Company outstanding which upon
conversion, exercise or exchange would require, directly or
indirectly, the issuance of any additional membership interest in the
Company or other securities convertible, exchangeable or exercisable
into or for membership interests in the shares of the Company or any
other equity security of the Company, and there are no outstanding
contractual obligations of the Company to repurchase, redeem or
otherwise acquire any outstanding membership interest in the Company.
Section 4.4. Authority; Enforceable Agreement. (a) Each of
--------------------------------
the Members has the requisite power and authority to enter into this
Agreement and to consummate the transactions contemplated hereby.
This Agreement has been duly executed and delivered by each of the
Members and (assuming due execution and delivery by the other parties
hereto) constitutes a valid and binding obligation of such Member,
enforceable against such Member in accordance with its terms, except
as such enforceability may be limited by bankruptcy, insolvency,
reorganization or similar laws affecting creditors' rights generally.
The other agreements entered, or to be entered, into by each of the
Members in connection with this Agreement have been, or will be, duly
executed and delivered by each of the Members and (assuming due
execution and delivery by the other parties thereto) constitute, or
will constitute, valid and binding obligations of such Member,
enforceable against such Member in accordance with their terms, except
as such enforceability may be limited by bankruptcy, insolvency,
reorganization or similar laws affecting creditors' rights generally.
Section 4.5. No Conflicts or Consents. (a) Except as set
------------------------
forth on Schedule 4.5(a), neither the execution, delivery nor
performance of this Agreement by any of the Members nor the
consummation of the transactions contemplated hereby will (i) violate,
conflict with, or result in a breach of any provision of, constitute a
default (or an event that, with notice or lapse of time or both, would
constitute a default) under, result in the termination of, or
accelerate the performance required by, or result in the creation of
any adverse claim against any of the properties or assets of the
Company under (A) the Articles of Organization and Operating Agreement
or any other organizational documents of the Company, or (B) any note,
bond, mortgage, indenture, deed of trust, lease, license, agreement or
other instrument or obligation to which the Company is a party, or by
which the Company or any of their assets are bound, or (ii) violate
any order, writ, injunction, decree, judgment, statute, rule or
<PAGE>
regulation of any governmental body to which the Company is subject or
by which the Company or any of its assets are bound.
(b) Except as set forth on Schedule 4.5(b), no consent,
approval, order, permit or authorization of, or registration,
declaration or filing with, any Person or of any government or any
agency or political subdivision thereof is required for the execution,
delivery and performance by any of the Members of this Agreement and
the covenants and transactions contemplated hereby or for the
execution, delivery and performance by any of the Members of any other
agreements entered, or to be entered, into by any of the Members in
connection with this Agreement.
Section 4.6. LLC Documents. Members have delivered to SEACOR
-------------
true and complete copies of the Company's Articles of Organization and
Operating Agreement, as amended or restated through the date of this
Agreement, and the organizational documents governing each of the
Company's subsidiaries listed on Schedule 4.2(a). The minute books of
the Company contain complete and accurate records of all Company
actions of the Members and Company or other governing bodies,
including committees of such boards or governing bodies.
Section 4.7. Financial Statements; Liabilities. The McCall
---------------------------------
Financial Statements, to the extent that they include information with
respect to the Company, have been prepared in accordance with GAAP
applied on a basis consistent with prior periods and present fairly
the financial position of the Company as at the dates of the balance
sheet included therein and the results of operations and cash flows
for the periods then ended, except, in the case of the McCall Interim
Financial Statements, as permitted by Rule 10-01 of Regulation S-X of
the SEC. The McCall Interim Financial Statements reflect all
adjustments (consisting only of normal, recurring adjustments) that
are necessary for a fair statement of the results of operations of the
Company for the interim periods presented therein. Except as set
forth on Schedule 4.7, the Company has not, nor are any of its assets
subject to, any liability, commitment, debt or obligation (of any kind
whatsoever whether absolute or contingent, accrued, fixed, known,
unknown, matured or unmatured) ("Undisclosed Liabilities"), except
(i) as and to the extent reflected on the McCall Latest Balance Sheet,
(ii) as may have been incurred or may have arisen since the date of
the McCall Latest Balance Sheet in the ordinary course of business and
that are not material individually or in the aggregate or (iii) as
permitted by this Agreement.
Section 4.8. Accounts Receivable. All of the accounts
-------------------
receivable reflected on the McCall Latest Balance Sheet or created
thereafter which relate to the Company have arisen only from bona fide
transactions in the ordinary course of business, represent valid
obligations owing to the Company and have been accrued and recorded in
accordance with
<PAGE>
GAAP. Except as set forth on Schedule 4.8, such accounts receivable
either have been collected in full or will be collectible in full when
due, without any counterclaims, set-offs or other defenses and without
provision for any allowance for uncollectible accounts other than such
allowance as appears on the McCall Latest Balance Sheet.
Section 4.9. Absence of Certain Changes or Events. Except as
------------------------------------
set forth on Schedule 4.9 or as contemplated by this Agreement, since
the date of the McCall Latest Balance Sheet, the Company has conducted
its business only in the ordinary course, and has not:
(a) amended its Articles of Organization, Operating
Agreement or similar organizational documents;
(b) incurred any liability or obligation of any nature
(whether absolute or contingent, accrued, fixed, known, unknown,
matured or unmatured), except in the ordinary course of business;
(c) suffered or permitted any of its assets to be or remain
subject to any lien other than those disclosed on Schedule 4.11(a) or
4.13(a) and that collateralize indebtedness reflected on the McCall
Latest Balance Sheet and Liens for Taxes accrued but not yet payable
and Permitted Liens;
(d) merged or consolidated with another Person or acquired
or agreed to acquire any Person or sold, leased, transferred or
otherwise disposed of any assets except for fair value in the ordinary
course of business; provided that no Company Vessels shall have been
disposed of without the consent of SEACOR (which consent shall not be
unreasonably withheld);
(e) made any capital expenditure or commitment therefor,
except in the ordinary course of business, provided that any
acquisitions of vessels (except those under construction and referred
to in the definition of Adjusted Net Assets), or acquisitions of, or
improvements to, real property, shall not be considered to be in the
ordinary course of business;
(f) declared or paid any dividend or made any distribution
with respect to any of its equity interests, or redeemed, purchased or
otherwise acquired any of its equity interests, or issued, sold or
granted any equity interests or any option, warrant or other right to
purchase or acquire any such interest;
<PAGE>
(g) adopted any employee benefit plan or made any change in
any existing employee benefit plans or made any bonus or profit
sharing distribution or payment of any kind;
(h) increased indebtedness for borrowed money, or made any
loan to any Person, other than through the issuance of standby or
performance letters of credit issued in the ordinary course of
business;
(i) made any change affecting any banking, safe deposit or
power of attorney arrangements;
(j) written off as uncollectible any notes or accounts
receivable, except for notes or accounts receivable in the ordinary
course of business charged to applicable allowances reflected in the
McCall Latest Balance Sheet, and none of which individually or in the
aggregate is material to the Company;
(k) entered into or amended any employment, severance or
similar agreement or arrangement with any director or employee, or
granted any increase in the rate of wages, salaries, bonuses, employee
advances or other compensation or benefits of any executive officer or
other employee, other than any such increase that is both in the
ordinary course of business consistent with past practice and in an
amount such that, after giving effect thereto, aggregate employee
compensation expense (considered on an annualized basis) does not
exceed 105% of the aggregate employee compensation expense for the
Company's fiscal year ended December 31, 1995;
(l) cancelled, waived, released or otherwise compromised
any debt, claim or right, except as permitted under clause (j);
(m) made any change in any method of accounting principle
or practice;
(n) suffered the termination, suspension or revocation of
any license or permit necessary for the operation of its business or
any of the Company Vessels;
(o) entered into any transaction other than on an arm's-
length basis;
(p) suffered any damage, destruction or loss (whether or
not covered by insurance) which has had or could reasonably be
expected to have a Material Adverse Effect on the Company; or
(q) agreed, whether or not in writing, to do any of the
foregoing.
<PAGE>
Section 4.10. Contracts. (a) Except as set forth on Schedule
---------
4.10(a), the Company is not a party to: (i) any collective bargaining
agreement; (ii) any Contract with any employee; (iii) any Contract,
containing any covenant limiting its freedom to engage in any line of
business or to compete with any Person; (iv) any Contract containing
an obligation to guarantee or indemnify any other Person; (v) any
joint venture, partnership or similar Contract involving a sharing of
profits or expenses; (vi) any Contract under which the Company is the
licensee or licensor of patents, copyrights, trademarks, applications
for any of the foregoing or any other intellectual property rights of
any nature; (vii) any Contract between the Company and any of its
respective Affiliates; (viii) any Contract under which the Company has
borrowed any money or issued any note, bond or other evidence of
indebtedness for borrowed money or guaranteed indebtedness for money
borrowed by others; (ix) any hedge, swap, exchange, futures or similar
Contracts; or (x) any Contract that has had or may have a Material
Adverse Effect on the Company.
(b) Schedule 4.10(b) contains a list and brief description
(including the names of the parties and the date and nature of the
agreement) of each material Contract to which the Company is a party.
There is no existing breach by any member of the Company of any of its
material Contracts and there has not occurred any event that with the
lapse of time or the giving of notice or both would constitute such a
breach. There is not pending nor, to the Knowledge of Members,
threatened, any claim that any member of the Company, has breached any
of the terms or conditions of any of its material Contracts and, to
the Knowledge of Members, no other parties to such Contracts have
breached any of their terms or conditions. SEACOR has been provided
with a complete and accurate copy of each Contract listed on Schedule
4.10(b).
Section 4.11. Properties and Leases other than Vessels. (a)
----------------------------------------
With respect to assets other than vessels and except for assets
disposed of for adequate consideration in the ordinary course of
business and which are not material to the operation of its business,
the Company has good and valid title to all real property and all
other properties and assets accounted for as belonging to a member of
the Company in the McCall Latest Balance Sheet free and clear of all
Liens, except for (i) Liens that secure indebtedness that is properly
reflected in the McCall Latest Balance Sheet; (ii) Liens for Taxes
accrued but not yet payable; (iii) Permitted Liens, provided that the
obligations collateralized by such Permitted Liens are not delinquent
or are being contested in good faith; (iv) such imperfections of title
and encumbrances, if any, as do not in the aggregate materially
detract from the value or materially interfere with the present use of
any such properties or assets or the potential sale of any such
properties and assets; and (v) capital leases and leases of such
properties, if any, to third parties for fair and adequate
consideration. Schedule 4.11(a) contains a list of (i) all Liens
(other than Permitted Liens and Liens for Taxes accrued but not yet
payable) on property of the Company other than vessels collateralizing
indebtedness on the McCall Latest Balance Sheet,
<PAGE>
(ii) any guaranty or other credit support arrangement pursuant to
which the Company has guaranteed an obligation of any other member of
the Companies where assets other than vessels are the collateral and
(iii) certain items of personal property not owned by the Company.
The Company owns, or has valid leasehold interests in, all properties
and assets, other than vessels, used in the conduct of its business.
(b) With respect to each lease of real property and
material amount of personal property (other than vessels) to which the
Company is a party, (i) the Company has a valid leasehold interest in
such real property or personal property; (ii) such lease is in full
force and effect in accordance with its terms; (iii) all rents and
other monetary amounts that have become due and payable thereunder
have been paid in full; (iv) no waiver, indulgence or postponement of
the obligations thereunder has been granted by the other party
thereto; (v) there exists no material default (or an event that, with
notice or lapse of time or both would constitute a material default)
under such lease; (vi) the Company has not violated any of the terms
or conditions under any such lease; (vii) to the Knowledge of Members,
there has been no (A) condition or covenant to be observed or
performed by any other party under any such lease that has not been
fully observed and performed and (B) in the case of each prime lease
concerning demised premises subleased to the Company, condition or
covenant to be observed or performed by each party thereto that has
not been fully observed and performed and there does not exist any
event of default or event, occurrence, condition or act that, with the
giving of notice, the lapse of time or the happening of any further
event or condition, would become a default under any such prime lease;
and (viii) the transactions described in this Agreement will not
constitute a default under or cause for termination or modification of
such lease.
(c) Except as disclosed on Schedule 4.11(c), the rent
charged to the Company under any lease (other than with respect to
vessels) between the Company and any of its Affiliates is at or below
the market rate and any such lease contains such other terms and
conditions that are no less favorable to the Company than would be
obtainable in an arms-length transaction with an independent third
party lessor.
(d) Schedule 4.11(d) contains a list of all real property
owned by the Company and a list of all leases, other than with respect
to vessels, to which the Company are parties, which list includes a
reasonable description of the location and approximate square footage
of each property, whether owned or leased, and the term of each such
lease, including all renewal options. Complete and correct copies of
each lease has been delivered to SEACOR.
Section 4.12. Condition of the Company's Assets Other than
--------------------------------------------
Vessels. All of the tangible assets of the Company (other than
-------
vessels) are currently in good and usable
<PAGE>
condition, ordinary wear and tear excepted, and are being used in the
business of the Company. There are no defects in such assets or other
conditions that in the aggregate have or would be reasonably likely to
have, a Material Adverse Effect on the Company. Such assets and the
other properties being leased by the Company pursuant to the leases
described on Schedule 4.11(d), together with the vessels listed on
Schedule 4.13(a), constitute all of the operating assets being
utilized by the Company in the conduct of its business and such assets
are sufficient in quantity and otherwise adequate for the operations
of the Company as currently conducted.
Section 4.13. Vessels. (a) Schedule 4.13(a) hereto sets forth
-------
a list of all vessels owned, leased, chartered or managed by the
Company on the date hereof and the name of the nation under which each
such vessel is documented and flagged, and indicates any such vessels
that are laid up or being held for sale on the date hereof (such
vessel, including related spare parts, stores and supplies (other than
any such vessels that are managed on the date hereof), being referred
to herein as "Company Vessels"). With respect to the owned Company
Vessels, the Company is the sole owner of each Company Vessel owned by
it and has good title to each such vessel free and clear of all Liens,
except for (i) Liens that collateralize indebtedness that is properly
reflected in the McCall Latest Balance Sheet ; (ii) Liens for Taxes
accrued but not yet payable; (iii) Permitted Liens, provided that the
obligations collateralized by such Permitted Liens are not delinquent
or are being contested in good faith and, except with respect to the
matters disclosed on Schedule 4.19, in no event shall such contested
obligations, individually or in the aggregate, exceed $50,000 in the
aggregate. Schedule 4.13(a) contains a list of all Liens (other than
Permitted Liens which collateralize obligations that are not
delinquent or that are being contested in good faith and, except with
respect to the matters disclosed on Schedule 4.19, do not exceed
$50,000 in the aggregate) on vessels collateralizing indebtedness on
the McCall Latest Balance Sheet and any guaranty or other credit
support arrangement pursuant to which the Company has guaranteed an
obligation of any other of the Companies where vessels are the
collateral.
(b) With respect to each Company Vessel that is operated by
the Company under lease or charter and except as disclosed on Schedule
4.13(b), (i) the Company has a valid right to charter or a valid
leasehold interest in such vessel; (ii) such charter agreement or
lease is in full force and effect in accordance with its terms;
(iii) all rents, charter payments and other monetary amounts that have
become due and payable thereunder have been paid in full; (iv) no
waiver, indulgence or postponement of the obligations thereunder has
been granted by the other party thereto; (v) there exists no material
default (or an event that, with notice or lapse of time or both would
constitute a material default) under such charter agreement or lease;
(vi) the Company has not violated any of the terms or conditions under
any such charter agreement or lease and, to the Knowledge of Members,
there is no condition or covenant to be observed or performed by any
other party under such charter
<PAGE>
agreement or lease that has not been fully observed or performed;
(vii) the transactions described in this Agreement will not constitute
a default under or cause for termination or modification of such
charter agreement or lease; and (viii) to the Knowledge of Members,
there is no unrepaired damage to any equipment that could affect
certification or class or be budgeted for repair in the next twelve
months.
(c) Schedule 4.13(c) contains a list of all leases or
charters providing for the use by the Company of a Company Vessel,
which list contains a description of the terms of such lease or
charter. Complete and correct copies of each lease or charter have
been delivered to SEACOR.
(d) With respect to each Company Vessel and except as
indicated on Schedule 4.13(d), (i) such Company Vessel is lawfully and
duly documented under the flag of the nation listed on Schedule
4.13(a) for such Company Vessel, (ii) such Company Vessel is afloat
and in satisfactory operating condition for charter, (iii) such
Company Vessel holds in full force and effect all certificates,
licenses, permits and rights required for operation in the manner
vessels of its kind are being operated in the geographical area in
which such Company Vessel is presently being operated, (iv) to the
Knowledge of Members, no event has occurred and no condition exists
that would materially or adversely effect the condition of such
Company Vessel and (v) with respect to any Company Vessel which is
classed, such vessel is in class, free of any recommendations of which
the Company has been informed.
Section 4.14. Accounting Matters. To the Knowledge of Members,
------------------
the Company nor any of its Affiliates has taken or agreed to take any
action that (without giving effect to any action taken or agreed to be
taken by SEACOR or any of its Affiliates) would prevent SEACOR from
accounting for the business combination to be effected by the
Acquisition as a pooling-of-interests.
Section 4.15. Suppliers and Customers. To the Knowledge of
-----------------------
Members and except as disclosed on Schedule 4.15, (a) no supplier
providing products, materials or services to any member of the Company
intends to cease selling such products, materials or services to any
member of the Company or to limit or reduce such sales to the Company
or materially alter the terms or conditions of any such sales and
(b) no customer of the Company intends to terminate, limit or reduce
its or their business relations with any member of the Company.
Section 4.16. Employee Matters. (a) Schedule 4.16(a) sets
----------------
forth the name, title, current annual compensation rate (including
bonus and commissions, but separately identifying salary or hourly
rate), accrued bonus, accrued sick leave, accrued severance pay and
accrued vacation benefits of each officer of the Company, and a list
of all employment, consulting, employee confidentiality or similar
Contracts to which the Company is a party.
<PAGE>
Copies of organizational charts, any employee handbook(s), and any
reports and/or plans prepared or adopted pursuant to the Equal
Employment Opportunity Act of 1972, as amended, have been provided to
SEACOR.
(b) Each of the following is true with respect to the
Company:
(i) the Company is in compliance with all applicable laws
respecting employment and employment practices, terms and
conditions of employment, wages and hours and occupational safety
and health, and is not engaged in any unfair labor practice
within the meaning of Section 7 of the National Labor Relations
Act, and there is no proceeding pending or, to the Knowledge of
Members, threatened, or, to the Knowledge of Members, any pending
or threatened investigation against it relating to any thereof,
and, to the Knowledge of Members, there is no basis for any such
proceeding or investigation;
(ii) to the Knowledge of Members, none of the employees of
the Company is a member of, or represented by, any labor union
and there are no efforts being made to unionize any of such
employees; and
(iii) to the Knowledge of Members, there are no charges or
complaints of, or proceedings involving, discrimination or
harassment (including but not limited to discrimination or
harassment based upon sex, age, marital status, race, religion,
color, creed, national origin, sexual preference, handicap or
veteran status) pending or, to the Knowledge of Members,
threatened, nor, to the Knowledge of Members, is there any
pending or threatened investigation, including, but not limited
to, investigations before the Equal Employment Opportunity
Commission or any federal, state or local agency or court, with
respect to the Company.
Section 4.17. Employee Benefit Plans. With respect to the
----------------------
Company:
(a) Schedule 4.17(a) lists each Employee Plan that the
Company maintains, administers, contributes to, or has any contingent
liability with respect to. Members have provided a true and complete
copy of each such Employee Plan, current summary plan description,
(and, if applicable, related trust documents) and all amendments
thereto and written interpretations thereof together with (i) the
three most recent annual reports prepared in connection with each such
Employee Plan (Form 5500 including, if applicable, Schedule B
thereto); (ii) the most recent actuarial report, if any, and trust
reports prepared in connection with each Employee Plan; (iii) all
material communications received from or sent to the Internal Revenue
Service ("IRS") or the Department of Labor within the last two years
(including a written description of any material oral communications);
(iv) the most recent
<PAGE>
IRS determination letter with respect to each Employee Plan and the
most recent application for a determination letter; (v) all insurance
contracts or other funding arrangements; and (vi) the most recent
actuarial study of any post-employment life or medical benefits
provided, if any.
(b) Schedule 4.17(b) identifies each Benefit Arrangement
that each member of the Company maintains, administers, contributes
to, or has any contingent liability with respect to. Members have
furnished to SEACOR copies or descriptions of each Benefit Arrangement
and any of the information set forth in Section 4.17(a) applicable to
any such Benefit Arrangement. Each Benefit Arrangement has been
maintained and administered in substantial compliance with its terms
and with the requirements (including reporting requirements)
prescribed by any and all statutes, orders, rules and regulations
which are applicable to such Benefit Arrangement.
(c) Benefits under any Employee Plan or Benefit Arrangement
are as represented in such documents and have not been increased or
modified (whether written or not written) subsequent to the dates of
such documents. Except as disclosed on Schedule 4.17(c), the Company
has not communicated to any employee or former employee any intention
or commitment to modify any Employee Plan or Benefit Arrangement or to
establish or implement any other employee or retiree benefit or
compensation arrangement.
(d) No Employee Plan is (i) a Multiemployer Plan, (ii) a
Title IV Plan or (iii) maintained in connection with any trust
described in Section 501(c)(9) of the Code. The Company has not ever
maintained or become obligated to contribute to any employee benefit
plan (i) that is subject to Title IV of ERISA, (ii) to which Section
412 of the Code applies, or (iii) that is a Multiemployer Plan. The
Company has not has within the last five years engaged in, or is a
successor corporation to an entity that has engaged in, a transaction
described in Section 4069 of ERISA.
(e) Each Employee Plan which is intended to be qualified
under Section 401(a) of the Code is so qualified and has been so
qualified during the period from its adoption to date, and no event
has occurred since such adoption that would adversely affect such
qualification and each trust created in connection with each such
Employee Plan forming a part thereof is exempt from tax pursuant to
Section 501(a) of the Code. A favorable determination letter has been
issued by the IRS as to the qualification of each such Employee Plan
under the Code and to the effect that each such trust is exempt from
taxation under Section 501(a) of the Code. Except as disclosed on
Schedule 4.17(e), each Employee Plan has been maintained and
administered in compliance with its terms and with the requirements
(including reporting requirements) prescribed by any and all
applicable statutes, orders, rules and regulations, including but not
limited to ERISA and the Code.
<PAGE>
(f) Full payment has been made of all amounts which the
Company is or has been required to have paid as contributions to or
benefits due under any Employee Plan or Benefit Arrangement under
applicable law or under the terms of any such plan or any arrangement.
(g) Neither the Company nor any of its Members, directors,
officers or employees has engaged in any transaction with respect to
an Employee Plan that could subject the Company to a tax, penalty or
liability for a prohibited transaction, as defined in Section 406 of
ERISA or Section 4975 of the Code. None of the assets of any Employee
Plan are invested in employer securities or employer real property.
(h) To the Knowledge of Members, there are no facts or
circumstances that give rise to any liability under Title I of ERISA.
(i) The Company has no current or projected liability in
respect of post-retirement or post-employment medical, death or life
insurance, welfare benefits for retired, current or former employees,
except as required to avoid excise tax under Section 4980B of the
Code.
(j) Except as disclosed on Schedule 4.17(j), there is no
litigation, administrative or arbitration proceeding or other dispute
pending or threatened that involves any Employee Plan or Benefit
Arrangement which could reasonably be expected to result in a
liability to the Company.
(k) Except as disclosed on Schedule 4.17(k), no employee or
former employee of the Company will become entitled to any bonus,
employee advance, retirement, severance, job security or similar
benefit or enhanced benefit (including acceleration of an award,
vesting or exercise of an incentive award) or any fee or payment of
any kind solely as a result of any of the transactions contemplated
hereby and no such disclosed payment constitutes a parachute payment
described in Section 280G of the Code.
(l) Except as disclosed in Schedule 4.17(l), no Employee
Plan provides health, medical, death or survivor benefits to any
stockholders or directors who are not employees.
Section 4.18. Tax Matters. Each of the following is true with
-----------
respect to the Company:
(a) All Returns have been, or will be, timely filed by (or
on behalf of) the Company in accordance with all applicable laws; all
Taxes that are due, or claimed by any
<PAGE>
taxing authority to be due from or with respect to the Company have
been or will be timely paid by (or on behalf of) the Company; all
Returns of (or including) the Company have been properly completed in
compliance with all applicable laws and regulations and are true,
complete and correct in all material respects and such Returns are not
subject to penalties under Section 6662 of the Code (or any
corresponding provision of state, local or foreign tax law). With
respect to any period for which Returns have not yet been filed, or
for which Taxes are not yet due or owing, the Company, has made due
and sufficient current accruals for such Taxes as reflected on its
books (including, without limitation, the McCall Latest Balance
Sheet);
(b) There are no outstanding agreements, consents, waivers
or arrangements extending the statutory period of limitation
applicable (A) to file any Return or (B) for assessment or collection
of any Taxes due from or with respect to the Company for any period
prior to the date hereof, and the Company has not been requested to
enter into any such agreement, consent, waiver or arrangement;
(c) There are no Liens with respect to Taxes (other than
for current Taxes not yet due and payable) upon any of the assets of
any member of the Company;
(d) All material elections with respect to Taxes affecting
the Company are set forth in Schedule 4.18(d);
(e) All Taxes that the Company is required by law to
withhold or collect (including Taxes required to be withheld and
collected from employee wages, salaries and other compensation) have
been duly withheld or collected, and have been timely paid over to the
appropriate governmental authorities;
(f) The United States federal income tax Returns of (or
including) the Company, if any, have been examined by the IRS or the
periods covered by such Returns have been closed by applicable statute
of limitations, for all periods. The state, local and foreign
Returns, if any, of (or including) the Company have been examined by
the relevant taxing authorities, or the periods covered by such
Returns have been closed by applicable statute of limitations, for all
periods. All deficiencies claimed, proposed or asserted or
assessments made as a result of such examinations or any other
examinations of the Company have been fully paid or fully settled, and
no issue has been raised by any federal, state, local or foreign
taxing authority in any such examination which, by application of the
same or similar principles, could reasonably be expected to result in
a proposed deficiency for any subsequent taxable period. Schedule
4.18(f) sets forth each state and foreign jurisdiction in which the
Company has, in the last three years, filed a Return;
<PAGE>
(g) No Tax audits or other administrative proceedings are
pending with regard to any Taxes for which the Company may be liable
and the Company has not received any notice from any taxing authority
that it intends to conduct such an audit or commence such an
administrative proceeding;
(h) No claim has been made by a taxing authority in a
jurisdiction where the Company does not file Returns that the Company
is or may be subject to taxation by that jurisdiction;
(i) The Company is not a party to any agreement, contract,
arrangement or plan that would result, separately or in the aggregate,
in the payment of any "parachute payments" within the meaning of Code
Section 280G (or any comparable provision of state or local law);
(j) The Company has not agreed, nor is it required, to make
any adjustment under Code Section 481(a) (or any comparable provision
of state or local law) by reason of a change in any accounting method
or otherwise, and there is no application pending with any taxing
authority requesting permission for any changes in any accounting
method of the Company. Neither the IRS nor any comparable taxing
authority has proposed to the Company in writing or, to the Knowledge
of Members, otherwise proposed any such adjustment or change in
accounting method;
(k) None of the assets of the Company is property that such
company is required to treat as being owned by any other 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 Tax Reform Act of 1986;
(l) None of the assets of the Company directly or
indirectly secures any debt, the interest on which is tax exempt under
Section 103(a) of the Code;
(m) None of the assets of the Company (i) is subject to
Section 168(g)(i)(A) of the Code or (ii) constitutes "tax-exempt use
property" within the meaning of Section 168(h) of the Code;
(n) The Company has never been a member of an affiliated
group of corporations filing a consolidated combined or unitary Return
other than a group of which the Company is the parent corporation; and
<PAGE>
(o) The Company is not (or has ever been) a party to any
tax sharing agreement nor has any such member assumed the tax
liability of any other person under contract; and
(p) For all periods since its formation through and
including the Closing Date, the Company has been properly classified
and taxable as a partnership for federal, state, local and foreign
income tax purposes.
Section 4.19. Litigation. Except as disclosed on Schedule 4.19,
----------
there are no actions, suits, proceedings, arbitrations or
investigations pending or, to the Knowledge of Members, threatened
before any court, any governmental agency or instrumentality or any
arbitration panel, against or affecting the Company or, to the
Knowledge of Members, any of the directors or officers of the Company.
To the Knowledge of Members, no facts or circumstances exist that
would be likely to result in the filing of any such action that would
have a Material Adverse Effect on the Company. Except as disclosed on
Schedule 4.19, the Company is not subject to any currently pending
judgment, order or decree entered in any lawsuit or proceeding. All
matters listed on Schedule 4.19 are either adequately covered by
insurance or accounted for through the establishment of reasonable
reserves on the McCall Latest Balance Sheet.
Section 4.20. Insurance. (a) Schedule 4.20(a) contains a list
---------
of the insurance policies that the Company currently maintains with
respect to its business, vessels, properties and employees as of the
date hereof, each of which is in full force and effect and a complete
and correct copy of each has been delivered to SEACOR. All insurance
premiums currently due with respect to such policies have been paid
and the Company is not otherwise in default with respect to any such
policy, nor has the Company failed to give any notice or, to the
Knowledge of Members, present any claim under any such policy in a due
and timely manner. There are no outstanding unpaid claims under any
such policy other than any pending claims under any of the Company's
marine insurance policies, the amount of which claims have been
recorded as a receivable and all of which are fully collectible. The
Company has not received notice of cancellation or non-renewal of any
such policy. Such policies are sufficient for compliance with all
requirements of law and all agreements to which the Company is a
party.
(b) Except as disclosed on Schedule 4.20(b), the Company is
not nor has ever been a member of any protection or indemnity club.
Section 4.21. Environmental Compliance. (a) Except as set
------------------------
forth on Schedule 4.21(a), the Company is and, to the Knowledge of
Members, at all times in the past has been in compliance with all
Environmental Laws and the Company possesses all necessary
<PAGE>
licenses, permits, authorizations, and other approvals and
authorizations that are required under the Environmental Laws
("Environmental Permits").
(b) Except as set forth on Schedule 4.21(b), the Company is
not, nor has been, subject to any pending or, to the Knowledge of
Members, threatened investigations, administrative or judicial
proceedings pursuant to, or has received any notice of any violation
of, or claim alleging liability under, any Environmental Laws, and, to
the Knowledge of Members, no facts or circumstances exist that would
be likely to result in a claim, citation or allegation against the
Company for a violation of, or alleging liability under, any
Environmental Laws.
(c) Except as set forth on Schedule 4.21(c), there are no
above ground or underground tanks of any type (including tanks storing
gasoline, diesel fuel, oil or other petroleum products) or disposal
sites for hazardous substances, hazardous wastes or any other waste,
located on or under the real estate currently owned, leased or used by
the Company and, to the Knowledge of Members, there were no such
disposal sites located on or under the real estate previously owned,
leased or used by the Company on the date of the sale thereof by any
member of the Company or during the period of lease for use by the
Company.
(d) Except in the ordinary course of business or as listed
on Schedule 4.21(d), and in all cases in compliance with Environmental
Laws, the Company has not engaged any third party to handle, transport
or dispose of Hazardous Substances (including for this purpose but not
limited to, gasoline, diesel fuel, oil or other petroleum products, or
bilge waste) on its behalf. The disposal by the Company of its
hazardous substances and wastes has been in compliance with all
Environmental Laws.
(e) To the Knowledge of Members, no asbestos or asbestos
containing materials have been used in the construction, repair,
fitting out or retrofitting of any of the Company Vessels.
Section 4.22. Compliance With Law; Permits. Except with respect
----------------------------
to Environmental Laws, which is the subject of Section 4.21, the
following statements are true and correct:
(a) The operations and activities of the Company complies
with all applicable laws, regulations, ordinances, rules or orders of
any federal, state or local court or any governmental authority except
for any violation or failure to comply that could not reasonably be
expected to result in a Material Adverse Effect on the Company.
(b) The Company possesses all governmental licenses,
permits and other governmental authorizations that are (i) required
under all federal, state and local laws and
<PAGE>
regulations for the ownership, use and operation of its assets or
(ii) otherwise necessary to permit the conduct of its business without
interruption, and such licenses, permits and authorizations are in
full force and effect and have been and are being fully complied with
by it except for any violation or failure to comply that could not
reasonably be expected to result in a Material Adverse Effect on the
Company. The Company has not received any notice of any violation of
any of the terms or conditions of any such license, permit or
authorization and, to the Knowledge of Members, no facts or
circumstances exist that could form the basis of a revocation, claim,
citation or allegation against it for a violation of any such license,
permit or authorization. No such license, permit or authorization or
any renewal thereof will be terminated, revoked, suspended, modified
or limited in any respect as a result of the transactions contemplated
by this Agreement except for any violation or failure to comply that
could not reasonably be expected to result in a Material Adverse
Effect on the Company.
Section 4.23. Interests in Clients, Suppliers, Etc. Except as
------------------------------------
set forth on Schedule 4.23, no Member 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 that has entered into any contract with
the Company. Ownership of less than 1% of any class of securities of
a company whose securities are registered under the Exchange Act will
not be deemed to be a financial interest for purposes of this Section
4.23.
Section 4.24. Transactions With Related Parties. (a) Schedule
---------------------------------
4.24(a) lists all transactions between January 1, 1993 and the date of
this Agreement involving, or for the benefit of, the Company, on the
one hand, and any Member or Affiliate of any Member, on the other
hand, including (i) any debtor or creditor relationship, (ii) any
transfer or lease of real or personal property or charter or
management of any Company Vessel, and (iii) purchases or sales of
products or services.
(b) Schedule 4.24(b) lists (i) all agreements and claims of
any nature that any Member or any Affiliate of such Member has with or
against the Company as of the date of this Agreement that are not
identified on the McCall Latest Balance Sheet or the notes thereto and
(ii) all agreements and claims of any nature that the Company has with
or against any Member or any Affiliate of such Member as of the date
of this Agreement that are not identified on the McCall Latest Balance
Sheet or the notes thereto.
Section 4.25. Broker's and Finder's Fee. No agent, broker,
-------------------------
person or firm acting on behalf of any of the Members or the Company
is or will be entitled to any commission or broker's or finder's fee
from any of the parties hereto, or from any Affiliate of the parties
hereto, in connection with any of the transactions contemplated
herein.
<PAGE>
Section 4.26. Disclosure. No representations or warranties by
----------
any of the Members in this Agreement and no statement contained in the
schedules or exhibits or in any certificate to be delivered pursuant
to this Agreement, contains or will contain any untrue statement of
material fact or omits or will omit to state any material fact
necessary, in light of the circumstances under which it was made, in
order to make the statements herein or therein not misleading.
Section 4.27. Intellectual Property. (a) Schedule 4.27
---------------------
contains a list of any trademarks, service marks, trade names,
copyrights and patents (and any application for the registration
thereof), owned or licensed by the Company, specifying as to each, as
applicable: (i) the nature of such Intellectual Property Right;
(ii) the owner of each Intellectual Property Right licensed by a
member of the Company; (iii) the expiration or termination date of
each third party license; and (iv) any third Person to whom any
Intellectual Property Right owned by the Company is licensed. All of
the Intellectual Property Rights owned by the Company are owned by
such member free and clear of Liens. All third party licenses are
valid, enforceable and in full force and effect, and the interests of
the Company under such third party licenses are held free and clear of
any Liens. The Company has no obligation to make any royalty or other
payment to any Person in connection with the use of or right to use
any Intellectual Property Right. The making, using or selling of
products or services incorporating the subject matter of any
Intellectual Property Rights of the Company does not infringe, violate
or conflict with any Intellectual Property Rights of any other Person.
(b) To the Knowledge of Members, the use by the Company of
the name "McCall" or any variant or derivative thereof used by the
Companies on the date hereof does not violate or infringe any
Intellectual Property Right of any Person.
ARTICLE 5.
REPRESENTATIONS AND WARRANTIES OF SEACOR
SEACOR represents and warrants to each of the Members as follows:
Section 5.1. Organization and Citizenship. (a) SEACOR is a
----------------------------
corporation duly organized, validly existing and in good standing
under the laws of the State of Delaware and has all corporate power
and authority to carry on its business as now being conducted and to
own, lease and operate its properties. Each other member of the
SEACOR Affiliated Group is duly organized under the laws of the state
or foreign nation of its organization and has all the requisite power
and authority under the laws of such jurisdiction to carry on its
business as now being conducted and to own its properties. Each
member of the SEACOR Affiliated Group is duly qualified to do business
and is in good standing in each state and foreign
<PAGE>
jurisdiction in which the character or location of the properties
owned or leased by it or the nature of the business conducted by it
makes such qualification necessary, except where the failure to be so
qualified or in good standing would not have a Material Adverse Effect
on SEACOR.
(b) SEACOR is a citizen of the United States within the
meaning of Section 2 of the Shipping Act, 1916, as amended for the
purposes of owning and operating vessels in the U.S. coastwise trade.
Section 5.2. Capitalization. The authorized capital stock of
--------------
SEACOR consists exclusively of 20,000,000 shares of common stock, $.01
par value per share, of which 8,513,825 shares were issued and
outstanding and 55,768 shares were held in its treasury as of May 28,
1996. All of such issued and outstanding shares have been validly
issued, are fully paid and nonassessable and were issued free of
preemptive rights, in compliance with any rights of first refusal, and
in compliance with all legal requirements.
Section 5.3. Authority; Enforceable Agreements. (a) SEACOR
---------------------------------
has the requisite corporate power and authority to enter into this
Agreement and to consummate the transactions contemplated hereby. The
execution and delivery of this Agreement by SEACOR and the
consummation by SEACOR of the transactions contemplated hereby have
been duly authorized by all necessary corporate action on the part of
SEACOR. This Agreement has been duly executed and delivered by SEACOR
and (assuming due execution and delivery by the other parties hereto)
constitutes a valid and binding obligation of SEACOR, enforceable
against SEACOR in accordance with its terms, except as such
enforceability may be limited by bankruptcy, insolvency,
reorganization or similar laws affecting creditors' rights generally.
The other agreements entered, or to be entered, into by SEACOR in
connection with this Agreement have been, or will be, duly executed
and delivered by SEACOR and (assuming due execution and delivery by
the other parties thereto) constitute, or will constitute, valid and
binding obligations of SEACOR, enforceable against SEACOR in
accordance with their terms, except as such enforceability may be
limited by bankruptcy, insolvency, reorganization or similar laws
affecting creditors' rights generally.
Section 5.4. No Conflicts or Consents. (a) Neither the
------------------------
execution, delivery nor performance of this Agreement by SEACOR nor
the consummation of the transactions contemplated hereby will (i)
violate, conflict with, or result in a breach of any provision of,
constitute a default (or an event that, with notice or lapse of time
or both, would constitute a default) under, result in the termination
of, or accelerate the performance required by, or result in the
creation of any adverse claim against any of the properties or assets
of any member of the SEACOR Affiliated Group under (A) the
certificates of incorporation, by-laws or other organizational
documents of any member of the SEACOR Affiliated Group or
<PAGE>
(B) any note, bond, mortgage, indenture, deed of trust, lease,
license, agreement or other instrument or obligation to which any
member of the SEACOR Affiliated Group is a party, or by which any of
its assets are bound, or (ii) subject to obtaining clearance under the
HSR Act, violate any order, writ, injunction, decree, judgment,
statute, rule or regulation of any governmental body to which any
member of the SEACOR Affiliated Group is subject or by which any of
its assets are bound.
(b) No consent, approval, order, permit or authorization
of, or registration, declaration or filing with, any Person or of any
government or any agency or political subdivision thereof is required
for the execution, delivery and performance by SEACOR of this
Agreement and the covenants and transactions contemplated hereby or
for the execution, delivery and performance by SEACOR of any other
agreements entered, or to be entered, into by SEACOR in connection
with this Agreement, except for the filing of the Registration
Statement on Form S-3 with the SEC, any filings, consents or approvals
in connection therewith and the declaration of effectiveness thereof
by the SEC as contemplated by the Investment and Registration Rights
Agreement.
Section 5.5. Corporate Documents. SEACOR has delivered to
-------------------
Members true and complete copies of its certificate of incorporation
and by-laws, as amended or restated through the date of this
Agreement.
Section 5.6. SEC Documents; Financial Statements; Liabilities.
------------------------------------------------
(a) SEACOR has filed all required reports, schedules,
forms, statements and other documents with the SEC since December 31,
1993 (the "SEACOR SEC Documents"). As of their respective dates, the
SEACOR SEC Documents complied as to form in all material respects with
the requirements of the Securities Act or the Exchange Act, as the
case may be, and the rules and regulations of the SEC promulgated
thereunder applicable to such SEACOR SEC Documents, and none of the
SEACOR SEC Documents contained any untrue statement of a material fact
or omitted to state a material fact required to be stated therein or
necessary in order to make the statements therein, in light of the
circumstances under which they were made, not misleading.
(b) The SEACOR Financial Statements included in the SEACOR
SEC Documents have been prepared in accordance with GAAP applied on a
basis consistent with prior periods, and present fairly the financial
position of SEACOR and its subsidiaries at the dates of the balance
sheets included therein and the results of operations and cash flows
for the periods then ended, except, in the case of the SEACOR Interim
Financial Statements, as permitted by Rule 10-01 of Regulation S-X of
the SEC. The SEACOR Interim Financial Statements reflect all
adjustments (consisting only of normal recurring adjustments) that are
necessary for a fair statement of the results for the interim periods
presented therein. No
<PAGE>
member of the SEACOR Affiliated Group has, nor are any of their
respective assets subject to, any liability, commitment, debt or
obligation (of any kind whatsoever whether absolute or contingent,
accrued, fixed, known, unknown, matured or unmatured), except (i) as
and to the extent reflected on the SEACOR Latest Balance Sheet, (ii)
as may have been incurred or may have arisen since the date of the
SEACOR Latest Balance Sheet in the ordinary course of business and
that are not material individually or in the aggregate or (iii) as
permitted by this Agreement.
Section 5.7. Absence of Certain Changes or Events. Since the
------------------------------------
date of the SEACOR Latest Balance Sheet, each member of the SEACOR
Affiliated Group has conducted its business only in the ordinary
course, and has not:
(a) amended its certificate of incorporation, by-laws or
similar organizational documents;
(b) merged or consolidated with another Person (other than
a subsidiary) or acquired or agreed to acquire any Person, or sold,
leased, transferred or otherwise disposed of any material portion of
its assets except for fair value in the ordinary course of business;
(c) suffered any damage, destruction or loss (whether or
not covered by insurance) which has had or could reasonably be
expected to have a Material Adverse Effect on the SEACOR Affiliated
Group; or
(d) declared or paid any dividend or made any distribution
with respect to any of its equity interests, or redeemed, purchased or
otherwise acquired any of its equity interests, or issued, sold or
granted any equity interests or any option, warrant or other right to
purchase or acquire any such interest or effected any split or
reclassification thereof other than (i) grants of stock options or
restricted stock and issuances of shares of SEACOR Common Stock upon
the exercise of stock options or conversion of any outstanding
convertible securities, (ii) the acceptance by SEACOR of any shares in
consideration of the exercise of any stock options or in satisfaction
of any tax or tax withholding obligations of the holders of such
options, and (iii) payments within the SEACOR Affiliated Group by
entities other than SEACOR as part of its cash management program; or
(e) agreed, whether or not in writing, to do any of the
foregoing.
Section 5.8. Contracts. Each Contract which any member of the
---------
SEACOR Affiliated Group is a party that would be required to be filed
as an exhibit to a report, schedule, form, statement or other document
filed by SEACOR with the SEC (each a "Material Contract") has been so
filed and, except as set forth on Schedule 5.8, between the
<PAGE>
date of the filing of its most recent Quarterly Report on Form 10-Q
and the date of this Agreement, SEACOR has not entered into any
Material Contract other than this Agreement. No member of the SEACOR
Affiliated Group has breached, nor is there any pending or, to the
Knowledge of SEACOR, threatened, claim that it has breached, any of
the terms or conditions of any of its Material Contracts, and to the
Knowledge of SEACOR, no other parties to any such Material Contract
have breached any of its terms or conditions.
Section 5.9. Litigation. Except as disclosed in a SEACOR SEC
----------
Document or listed on Schedule 5.9, there are no actions, suits,
proceedings, arbitrations or investigations pending or, to the
Knowledge of SEACOR, threatened, before any court, any governmental
agency or instrumentality or any arbitration panel, against or
affecting any member of the SEACOR Affiliated Group or, to the
Knowledge of SEACOR, any of the directors or officers of the
foregoing, that would have a Material Adverse Effect on SEACOR. To
the Knowledge of SEACOR, no facts or circumstances exist that would be
likely to result in the filing of any such action. No member of the
SEACOR Affiliated Group is subject to any currently pending judgment,
order or decree entered in any lawsuit or proceeding.
Section 5.10. Legality of SEACOR Common Stock. The SEACOR
-------------------------------
Common Stock to be issued in connection with the Acquisition, when
issued and delivered in accordance with the terms hereof, will be duly
authorized, validly issued, fully paid and non-assessable, and free of
pre-emptive rights.
Section 5.11. Broker's and Finder's Fee. No agent, broker,
-------------------------
Person or firm acting on behalf of SEACOR is or will be entitled to
any commission or broker's or finder's fee from any of the parties
hereto, or from any Affiliate of the parties hereto, in connection
with any of the transactions contemplated herein.
ARTICLE 6.
CERTAIN DELIVERIES AT CLOSING
Section 6.1.Certain Deliveries to SEACOR. The Members have delivered
----------------------------
the following to SEACOR at the Closing:
(a) Copies of the Articles of Organization or comparable
documents of the Company, including all amendments thereto.
(b) to the extent issued by the jurisdiction of
organization, certificates from the appropriate governmental official
to the effect that the Company is subsisting in such jurisdiction.
<PAGE>
(c) An opinion from counsel to the Members which covers the
matters set forth in Exhibit D.
(d) A copy of the Investment and Registration Rights
Agreement and an Indemnification Agreement substantially in the form
attached hereto as Exhibit E (the "Indemnification Agreement")
executed and delivered by each of the Members.
Section 6.2. Certain Deliveries to the Members. SEACOR has
---------------------------------
delivered the following to the Members of the Closing:
(a) A certificate from the appropriate governmental
official to the effect that SEACOR is in good standing in the State of
Delaware and listing all charter documents of SEACOR on file.
(b) An opinion from Weil, Gotshal & Manges LLP, counsel to
SEACOR, which covers the matters set forth in Exhibit F.
(c) A copy of the Investment and Registration Rights
Agreement and the Indemnification Agreement executed and delivered by
SEACOR.
ARTICLE 7.
[INTENTIONALLY OMITTED]
ARTICLE 8.
MISCELLANEOUS
Section 8.1. Notices. All notices hereunder must be in writing
-------
and will be deemed to have been duly given upon receipt of hand
delivery; certified or registered mail; return receipt requested; or
telecopy transmission with confirmation of receipt:
(a) If to SEACOR:
SEACOR Holdings, Inc.
1370 Avenue of the Americas
New York, New York 10019
Attention: Charles Fabrikant
with a copy to: Randall Blank
<PAGE>
and to:
Weil Gotshal & Manges LLP
767 Fifth Avenue
New York, New York 10153
Attention: David E. Zeltner, Esq.
(b) If to Members:
At their respective addresses appearing
in the books and records of the Company
with a copy to:
Stockwell, Sievert, Viccellio, Clements & Shaddock, L.L.P.
First National Bank Building
One Lakeside Plaza
P.O. Box 2900
Lake Charles, Louisiana 70602-2900
Attention: William E. Shaddock, Esq.
and to:
Jones, Walker, Waechter, Poitevent, Carrere
& Denegre L.L.P.
Place St. Charles
201 St. Charles Avenue
51st Floor
New Orleans, Louisiana 70170-5100
Attention: Carl C. Hanemann, Esq.
Telecopy No.: (504) 582-8398
Such names and addresses may be changed by written notice to each
person listed above.
Section 8.2. Governing Law. This Agreement shall be governed
-------------
by, construed and interpreted in accordance with the laws of the State
of Louisiana, regardless of the laws that might otherwise govern under
applicable principles of conflicts of laws thereof.
<PAGE>
Section 8.3. Counterparts. This Agreement may be executed in
------------
counterparts, each of which will be deemed an original but all of
which together will constitute one and the same instrument.
Section 8.4. Interpretation. (a) When a reference is made in
--------------
this Agreement to a Section, Exhibit or Schedule, such reference shall
be to a Section of, or an Exhibit or Schedule to, this Agreement
unless otherwise indicated. The table of contents and headings
contained in this Agreement are for reference purposes only and shall
not affect in any way the meaning or interpretation of this Agreement.
Whenever the words "include," "includes" or "including" are used in
this Agreement, they shall be deemed to be followed by the words
"without limitation."
Section 8.5. Entire Agreement; Severability. (a) This
------------------------------
Agreement, including the Exhibits and Schedules hereto, embodies the
entire agreement and understanding of the parties hereto in respect of
the subject matter contained herein. This Agreement supersedes all
prior agreements and understandings (whether written or oral) between
the parties with respect to such subject matter.
(b) If any provision of this Agreement is determined to be
invalid or unenforceable, in whole or in part, it is the parties'
intention that such determination will not be held to affect the
validity or enforceability of any other provision of this Agreement,
which provisions will otherwise remain in full force and effect.
Section 8.6. Amendment and Modification. This Agreement may be
--------------------------
amended or modified only by written agreement of the parties hereto;
provided, however, that there shall be made no amendment that by law
-------- -------
requires approval by the stockholders of a party hereto without the
approval of such stockholders.
Section 8.7. Extension; Waiver. At any time prior to the
-----------------
Closing Date, the parties may (a) extend the time for the performance
of any of the obligations or other acts of the other parties, (b)
waive any inaccuracies in the representations and warranties contained
in this Agreement or in any document delivered pursuant to this
Agreement or (c) waive compliance with any of the agreements or
conditions contained in this Agreement. The failure of a party to
insist upon strict adherence to any term of this Agreement on any
occasion shall not be considered a waiver or deprive that party of the
right thereafter to insist upon strict adherence to that term or any
other term of this Agreement. No waiver of any breach of this
Agreement shall be held to constitute a waiver of any other or
subsequent breach. Any waiver must be in writing.
<PAGE>
Section 8.8. Binding Effect; Benefits. This Agreement will
------------------------
inure to the benefit of and be binding upon the parties hereto and
their respective successors and assigns. Nothing in this Agreement,
express or implied, is intended to confer on any Person other than the
parties hereto and their respective successors and assigns any rights,
remedies, obligations or liabilities under or by reason of this
Agreement.
Section 8.9. Assignability. This Agreement is not assignable
-------------
by any party hereto without the prior written consent of the other
parties.
Section 8.10. Expenses. Each of the parties hereto shall pay
--------
all of its own expenses relating to the transactions contemplated by
this Agreement, including without limitation the fees and expenses of
its own financial, legal and tax advisors.
Section 8.11. Gender and Certain Definitions. All words used
------------------------------
herein, regardless of the number and gender specifically used, shall
be deemed and construed to include any other number, singular or
plural, and any other gender, masculine, feminine or neuter, as the
context requires.
IN WITNESS WHEREOF, the parties hereto have duly executed this
Agreement as of the date first written above.
SEACOR HOLDINGS, INC.
By:/s/ Milton Rose
-----------------------------------------
Name: Milton Rose
Title: Vice-President
MEMBER REPRESENTATIVE
By:/s/ Norman F. McCall
---------------------------------------
Norman F. McCall
<PAGE>
Members:
/s/ H. Alan McCall
----------------------------------
H. Alan McCall
/s/ Joseph K. McCall
----------------------------------
Joseph K. McCall
/s/ Phyllis McCall Johnston
----------------------------------
Phyllis McCall Johnston
EXHIBIT 2.5
SHARE EXCHANGE AGREEMENT AND
PLAN OF REORGANIZATION
RELATING TO CAMERON BOAT RENTALS, INC.
by and among
SEACOR HOLDINGS, INC.,
McCALL ENTERPRISES, INC.
and
THE PERSONS LISTED ON THE
SIGNATURE PAGES HEREOF
Dated as of May 31, 1996
<PAGE>
TABLE OF CONTENTS
Page
ARTICLE 1.
DEFINITIONS . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Section 1.1. Definitions . . . . . . . . . . . . . . . . . 2
ARTICLE 2.
THE CLOSING . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
Section 2.1. Closing . . . . . . . . . . . . . . . . . . . 9
ARTICLE 3.
EXCHANGE OF SHARES . . . . . . . . . . . . . . . . . . . . . . . 9
Section 3.1. Exchange of Company Shares . . . . . . . . . 9
Section 3.2. Exchange of SEACOR Shares . . . . . . . . . . 9
Section 3.3. Delivery of Company Shares; Transfer of
Exchanged Shares . . . . . . . . . . . . . 10
Section 3.4. Determination of Final Adjusted Net Assets . 10
Section 3.5. Registration Rights Agreement; Restrictive
Endorsement. . . . . . . . . . . . . . . . 11
ARTICLE 4.
REPRESENTATIONS AND WARRANTIES OF STOCKHOLDERS . . . . . . . . . 12
Section 4.1. Organization and Citizenship . . . . . . . . 12
Section 4.2. Affiliated Entities . . . . . . . . . . . . . 12
Section 4.3. Capitalization . . . . . . . . . . . . . . . 13
Section 4.4. Authority; Enforceable Agreement . . . . . . 13
Section 4.5. No Conflicts or Consents . . . . . . . . . . 14
Section 4.6. Corporate Documents . . . . . . . . . . . . . 14
Section 4.7. Financial Statements; Liabilities . . . . . . 14
Section 4.8. Accounts Receivable . . . . . . . . . . . . . 15
Section 4.9. Absence of Certain Changes or Events . . . . 15
Section 4.10. Contracts . . . . . . . . . . . . . . . . . . 17
Section 4.11. Properties and Leases other than Vessels . . 18
Section 4.12. Condition of the Company's Assets Other than
Vessels . . . . . . . . . . . . . . . . . 19
Section 4.13. Vessels . . . . . . . . . . . . . . . . . . . 20
Section 4.14. Accounting Matters. . . . . . . . . . . . . . 21
Section 4.15. Suppliers and Customers . . . . . . . . . . . 21
Section 4.16. Employee . . . . . . . . . . . . . . . . . . 22
Section 4.17. Employee Benefit Plans . . . . . . . . . . . 23
Section 4.18. Tax Matters . . . . . . . . . . . . . . . . . 25
Section 4.19. Litigation . . . . . . . . . . . . . . . . . 28
Section 4.20. Insurance . . . . . . . . . . . . . . . . . . 28
<PAGE>
Page
Section 4.21. Environmental Compliance . . . . . . . . . . 29
Section 4.22. Compliance With Law; Permits . . . . . . . . 30
Section 4.23. Interests in Clients, Suppliers, Etc. . . . . 30
Section 4.24. Transactions With Related Parties . . . . . . 30
Section 4.25. Broker's and Finder's Fee . . . . . . . . . . 31
Section 4.26. Disclosure . . . . . . . . . . . . . . . . . 31
Section 4.27. Intellectual Property . . . . . . . . . . . . 31
ARTICLE 5.
REPRESENTATIONS AND WARRANTIES OF MCCALL AND SEACOR . . . . . . . 32
Section 5.1. Organization and Citizenship . . . . . . . . 32
Section 5.2. Capitalization . . . . . . . . . . . . . . . 32
Section 5.3. Authority; Enforceable Agreements . . . . . . 33
Section 5.4. No Conflicts or Consents . . . . . . . . . . 34
Section 5.5. Corporate Documents . . . . . . . . . . . . . 34
Section 5.6. SEC Documents; Financial Statements;
Liabilities. . . . . . . . . . . . . . . . 34
Section 5.7. Absence of Certain Changes or Events . . . . 35
Section 5.8. Contracts . . . . . . . . . . . . . . . . . . 36
Section 5.9. Litigation . . . . . . . . . . . . . . . . . 36
Section 5.10. Legality of SEACOR Common Stock . . . . . . . 36
Section 5.11. Broker's and Finder's Fee . . . . . . . . . . 36
ARTICLE 6.
CLOSING CONDITION . . . . . . . . . . . . . . . . . . . . . . . . 37
Section 6.1. Conditions Applicable to All Parties . . . . 37
Section 6.2. Conditions to McCall's Obligations . . . . . 37
Section 6.3. Conditions to Stockholder's Obligations . . . 39
ARTICLE 7.
TERMINATION . . . . . . . . . . . . . . . . . . . . . . . . . . . 40
Section 7.1. Termination . . . . . . . . . . . . . . . . . 40
Section 7.2. Effect of Termination . . . . . . . . . . . . 41
ARTICLE 8.
MISCELLANEOUS . . . . . . . . . . . . . . . . . . . . . . . . . . 41
Section 8.1. Notices . . . . . . . . . . . . . . . . . . . 41
Section 8.2. Governing Law . . . . . . . . . . . . . . . . 42
Section 8.3. Counterparts . . . . . . . . . . . . . . . . 42
Section 8.4. Interpretation . . . . . . . . . . . . . . . 42
Section 8.5. Entire Agreement; Severability . . . . . . . 43
Section 8.6. Amendment and Modification . . . . . . . . . 43
Section 8.7. Extension; Waiver . . . . . . . . . . . . . . 43
Section 8.8. Binding Effect; Benefits . . . . . . . . . . 43
Section 8.9. Assignability . . . . . . . . . . . . . . . . 44
Section 8.10. Expenses . . . . . . . . . . . . . . . . . . 44
Section 8.11. Gender and Certain Definitions . . . . . . . 44
<PAGE>
EXHIBITS AND SCHEDULES
EXHIBITS
Exhibit A . . . . . . . . Vessels
Exhibit B . . . . . . . . Stockholders
Exhibit C . . . . . . . . Investment and Registration Rights
Agreement
Exhibit D . . . . . . . . Opinion of Stockholders' Counsel
Exhibit E . . . . . . . . Indemnification Agreement
Exhibit F . . . . . . . . Escrow Agreement
Exhibit G . . . . . . . . Opinion of SEACOR's Counsel
Exhibit H . . . . . . . . Opinion of McCall's Counsel
SCHEDULES(1)
Schedule 4.2(a) . . . . . Cameron Group
Schedule 4.2(b) . . . . . Rights to Acquire Securities
Schedule 4.5(a) . . . . . Certain Conflicts
Schedule 4.5(b) . . . . . Consents/Approval Required
Schedule 4.7 . . . . . . Disclosed Liabilities
Schedule 4.8 . . . . . . Accounts Receivable
Schedule 4.9 . . . . . . Certain Changes
Schedule 4.10(a) . . . . Certain Contracts
Schedule 4.10(b) . . . . Material Contracts
Schedule 4.11(a) . . . . Encumbrances on Property
Schedule 4.11(c) . . . . Above Market Rate Leases
Schedule 4.11(d) . . . . Real Property and Leases
Schedule 4.13(a) . . . . Vessels and Liens on Vessels
Schedule 4.13(b) . . . . Leased Vessels
Schedule 4.13(c) . . . . Leases/Charters of Vessels between
Members of the Cameron Group
Schedule 4.13(d) . . . . Certain Defects with Vessels
Schedule 4.15 . . . . . . Suppliers and Customers
Schedule 4.16(a) . . . . Certain Employees
Schedule 4.17(a) . . . . Employee Plans
Schedule 4.17(b) . . . . Employee Benefit Arrangements
Schedule 4.17(c) . . . . Modifications to Employee Benefit Plans
and Arrangements
Schedule 4.17(e) . . . . Compliance with Employee Plans
Schedule 4.17(j) . . . . Litigation Re Employee Plan or Benefit
Arrangements
__________________
(1) All the above Schedules relate to the Cameron Group
unless otherwise indicated.
<PAGE>
Schedule 4.17(k) . . . . Certain Employees with Rights to Certain
Entitlements
Schedule 4.17(l) . . . . Benefits to Non-employee Stockholders
and Directors
Schedule 4.18(d) . . . . Material Tax Elections
Schedule 4.18(f) . . . . Returns Filed in State and Foreign
Jurisdictions
Schedule 4.19 . . . . . . Litigation
Schedule 4.20(a) . . . . Insurance Policies
Schedule 4.20(b) . . . . Protection or Indemnity Clubs
Schedule 4.21(a) . . . . Noncompliance with Environmental Laws
Schedule 4.21(b) . . . . Environmental Administrative or Judicial
Proceedings
Schedule 4.21(c) . . . . Above Ground and Underground Tanks
Schedule 4.21(d) . . . . Hazardous Materials
Schedule 4.23 . . . . . . Officers'/Directors' Relationships with
Competitors of the Cameron Group
Schedule 4.24(a) . . . . Interested Officers'/Directors'
Transactions
Schedule 4.24(b) . . . . Claims of Certain Officers and Directors
Schedule 4.27 . . . . . . Intellectual Property
Schedule 5.8 . . . . . . Material Contracts of SEACOR
Schedule 5.9 . . . . . . Litigation Involving SEACOR
Schedule 6.3(d) . . . . . Disposed of/Sold Vessels
Schedule 6.3(e) . . . . . Indebtedness
Schedule 6.3(f) . . . . . New Capital Expenditures
NYFS11...:\93\73293\0011\1196\EDG6056N.360
<PAGE>
SHARE EXCHANGE AGREEMENT
-------------------------
AND
----
PLAN OF REORGANIZATION
-----------------------
RELATING TO CAMERON BOAT RENTALS, INC.
---------------------------------------
SHARE EXCHANGE AGREEMENT AND PLAN OF REORGANIZATION, dated as of
May 31, 1996, among SEACOR Holdings, Inc., a Delaware corporation
("SEACOR"), McCall Enterprises, Inc., a Louisiana corporation
("McCall"), and the persons listed on the signature pages hereto
(collectively, "Stockholders", and each a "Stockholder").
W I T N E S S E T H:
-------------------
WHEREAS, McCall is the owner of 40.54 shares of common stock, par
value $1.00 per share, of Cameron Boat Rentals, Inc. (the "Company";
shares of such common stock of the Company being referred to herein as
"Company Shares"); and
WHEREAS, Stockholders are the owners, in the aggregate, of 55.7
Company Shares which, together with the Company Shares owned by
McCall, constitute all of the issued and outstanding shares of capital
stock of the Company; and
WHEREAS, SEACOR, SEACOR Enterprises, Inc., a Louisiana
corporation and a direct wholly owned subsidiary of SEACOR ("SEACOR
Enterprises"), and McCall are parties to an Agreement and Plan of
Merger of even date herewith (the "Merger Agreement") pursuant to
which SEACOR Enterprises has on this date been merged with and into
McCall (the "Merger") and, as a result thereof, McCall has become a
direct wholly owned subsidiary of SEACOR; and
WHEREAS, upon the terms and subject to the conditions set forth
herein, Stockholders desire to transfer and assign to McCall, and
McCall desires to acquire from Stockholders, the Company Shares owned
by Stockholders in exchange for SEACOR Shares (as defined in Section
3.2(a)) (the "Acquisition"), which SEACOR Shares constitute the
consideration transferred by McCall to Stockholders as consideration
in respect of the Acquisition; and
WHEREAS, Stockholders, McCall and SEACOR intend that McCall
acquire the Company Shares owned by Stockholders in exchange for
SEACOR Shares in a transaction qualifying as reorganization under
Section 368(a)(1)(B) of the Internal Revenue Code of 1986, as amended
(the "Code");
<PAGE>
NOW, THEREFORE, in consideration of the representations,
warranties and covenants contained herein, the parties agree as
follows:
ARTICLE 1.
DEFINITIONS
Section 1.1. Definitions. As used in this Agreement, the
-----------
following terms when capitalized have the meanings indicated:
"Acquisition" shall have the meaning ascribed to such term in the
premises to this Agreement.
"Adjusted Net Assets" shall mean an amount equal to the
consolidated assets, other than Vessel Assets, of the Company and its
subsidiaries (including, but not limited to, cash and cash
equivalents, marketable securities, deposits, accounts receivable and
prepaid expenses) determined in accordance with GAAP (except as
provided in the provisos to this definition) reduced by the following:
(i) the book value of all personal property (including, without
limitation, vehicles, office equipment and furniture) and
improvements; (ii) appropriate reserves under GAAP; (iii) investments
in any of the Companies or SEAMAC LLC; and (iv) all liabilities
(including notes payable to current stockholders) as determined in
accordance with GAAP other than deferred taxes related to Vessel
Assets; provided, however, that (a) Adjusted Net Assets shall be
-------- -------
increased by the expenses of any drydockings of Company Vessels
incurred by the Company or its subsidiaries between the date hereof
and the Closing (but not the expenses of moving the vessels to the
dock) and (b) Adjusted Net Assets shall be calculated on the
assumption that any member of the Cameron Group that currently
accounts on a cash basis converted to accounting on an accrual basis
(and any Tax liability currently payable as a result of such
conversion shall be taken into account) and, provided further, in the
-------- -------
event that, prior to the Closing, any of the Company Vessels is sold
or is subject to a total loss or constructive total loss, the amount
of Adjusted Net Assets shall be (1) increased by the amount, if any,
by which the proceeds from such sale or the proceeds (including any
amount recoverable from insurance or other sources) from such loss
(the "Disposition Proceeds") exceed the value for such vessel set
forth on Exhibit A hereto, and (2) decreased by the amount, if any, by
which the value for such vessel set forth on Exhibit A hereto exceeds
the Disposition Proceeds.
"Affiliate" shall have the meaning ascribed to such term by Rule
12b-2 promulgated under the Exchange Act.
<PAGE>
"Agreement" shall mean this Share Exchange Agreement and Plan of
Reorganization, including the Schedules and Exhibits hereto, all as
amended or otherwise modified from time to time.
"Arbitrator" shall have the meaning ascribed to such term in
Section 3.4(b).
"Average Market Price" shall mean $35.142, which represents the
average of the daily closing sale price per share of SEACOR Common
Stock on the NASDAQ Stock Market for the 60 consecutive calendar days
that ended on April 16, 1996, the second trading day prior to the date
of signing of a letter of intent with respect to the transactions
contemplated hereby.
"Benefit Arrangement" means any employment, severance or similar
contract, or any other contract, plan, policy or arrangement (whether
or not written) providing for compensation, bonus, profit-sharing,
stock option or other stock related rights or other forms of incentive
or deferred compensation, vacation benefits, insurance coverage
(including any self-insured arrangement), health or medical benefits,
disability benefits, severance benefits and post-employment or
retirement benefits (including compensation, pension, health, medical
or life insurance benefits), other than the Employee Plans, that (A)
is maintained, administered or contributed to by the employer or the
employer has any obligation or liability (contingent or otherwise) and
(B) covers any employee or former employee or director of the
employer.
"Business Day" shall mean a day other than a Saturday, a Sunday
or a day on which national banks or the NASDAQ Stock Market is closed.
"Cameron Group" shall mean the Company and Gladys McCall, Inc.
"Closing" shall have the meaning ascribed to such term in Section
2.1.
"Closing Balance Sheet" shall have the meaning ascribed to such
term in Section 3.4(a).
"Closing Date" shall have the meaning ascribed to such term in
Section 2.1.
"Code" shall have the meaning ascribed to such term in the
premises to this Agreement.
<PAGE>
"Companies" shall mean McCall Enterprises, Inc., McCall's Boat
Rentals, Inc., Gulf Marine Transportation, Inc., Carroll McCall, Inc.,
McCall Marine Services, Inc., Cameron Boat Rentals, Inc., Gladys
McCall, Inc., Cameron Crews, Inc., Philip Alan McCall, Inc., N.F.
McCall Crews, Inc., McCall Crewboats, L.L.C. and McCall Support
Vessels, Inc.
"Company Shares" shall have the meaning ascribed to such term in
the premises to this Agreement.
"Company Vessels" shall have the meaning ascribed to such term in
Section 4.13(a).
"Contract" means any contract, charter, agreement, lease,
indenture, note, bond, instrument, lien, conditional sales contract,
mortgage, license, franchise, insurance policy, commitment or other
binding understanding or arrangement, whether written or oral.
"Employee Plan" means an employee benefit plan or arrangement as
defined in Section 3(3) of ERISA, that is maintained, administered or
contributed to by the employer or the employer has any obligation or
liability (contingent or otherwise) and covers any employee or former
employee of the employer.
"Environmental Laws" means all federal, state, local and foreign
laws, common law duties, ordinances, codes, regulations and other
legally binding obligations relating to pollution, the protection of
the environment, human health and safety or natural resources,
including, without limitation, all such laws governing the operation
of business, each Company Vessel, the generation, use, collection,
treatment, storage, transportation, recovery, removal, discharge or
disposal of Hazardous Substances or wastes and all such laws imposing
record-keeping, maintenance, testing, inspection, notification and
reporting requirements with respect to Hazardous Substances.
"Environmental Permits" shall have the meaning ascribed to such
term in Section 4.21(a).
"ERISA" means the Employee Retirement Income Security Act of
1974, as amended, and the applicable regulations promulgated
thereunder.
"Escrow Agreement" shall have the meaning ascribed to such term
in Section 6.2(g).
"Estimated Adjusted Net Assets" shall mean $1,764,365.
<PAGE>
"Exchange Act" shall mean the Securities Exchange Act of 1934, as
amended.
"Final Adjusted Net Assets" shall have the meaning ascribed to
such term in Section 3.4(b).
"Fractional Payment" shall have the meaning ascribed to such term
in Section 3.2(b).
"GAAP" shall mean generally accepted accounting principles in the
United States of America as in effect from time to time set forth in
the opinions and pronouncements of the Accounting Principles Board and
the American Institute of Certified Public Accountants and the
statements and pronouncements of the Financial Accounting Standards
Board, or in such other statements by such other entity as may be in
general use by significant segments of the accounting profession,
which are applicable to the circumstances as of the date of
determination.
"Hazardous Substances" means any and all wastes, materials or
substances defined, regulated or classified as "hazardous substances,"
"hazardous wastes," "hazardous constituents" or words of similar
meaning in (i) the Comprehensive Environmental Response, Compensation
and Liability Act of 1980, 42 U.S.C. Sections 9601 et seq., as amended by
-- ---
the Superfund Amendments and Reauthorization Act of 1986, and any
amendments thereto and regulations thereunder; (ii) the Resource
Conservation and Recovery Act of 1976, 42 U.S.C. Sections 6901 et seq., as
-- ---
amended by the Hazardous and Solid Waste Amendments of 1984, and any
amendments thereto and regulations thereunder; (iii) the Oil Pollution
Act of 1990, 33 U.S.C. Sections 2701 et seq., and any amendments thereto
-- ---
and regulations thereunder; or (iv) any other Environmental Law.
"HSR Act" shall mean the Hart-Scott-Rodino Antitrust Improvements
Act of 1976, as amended.
"Indemnification Agreement" shall have the meaning ascribed to
such term in Section 6.2(g).
"Intellectual Property Right" means any trademark, service mark,
trade name, patent, trade secret, copyright, know-how or other type of
intellectual property right (including any registrations or
applications for registration of any of the foregoing).
"Investment and Registration Rights Agreement" shall have the
meaning ascribed to such term in Section 3.5(a).
<PAGE>
"IRS" shall have the meaning ascribed to such term in Section
4.17(a).
"Knowledge of SEACOR" shall mean the actual knowledge of Charles
Fabrikant, Randall Blank or Milton R. Rose (all being executive
officers of SEACOR) without any obligation to conduct any inquiry
outside the ordinary course of business.
"Knowledge of Stockholders" shall mean the actual knowledge of
Norman F. McCall, Joyce C. McCall, William Johnston or Stephanie
Richard without any obligation to conduct any inquiry outside the
ordinary course of business.
"LBCL" shall mean the Business Corporation Law of the State of
Louisiana, as amended.
"Liens" shall mean pledges, liens, encumbrances, rights in rem,
defects, leases, licenses, equities, conditional sales contracts,
charges, claims, encumbrances, security interests, easements,
restrictions, chattel mortgages, mortgages or deeds of trust, of any
kind or nature whatsoever.
"Material Adverse Effect" shall mean, with respect to any party,
a material adverse effect on the financial condition, results of
operations, business or prospects of such party.
"Material Contract" shall have the meaning ascribed to such term
in Section 5.8.
"McCall Audited Financial Statements" shall mean the audited
combined balance sheet and related combined statements of income,
stockholders' equity and cash flows, and the related notes thereto, of
the Companies as of and for the years ended December 31, 1994 and
1995.
"McCall Financial Statements" shall mean the McCall Audited
Financial Statements and the McCall Interim Financial Statements,
collectively.
"McCall Interim Financial Statements" shall mean the unaudited
combined balance sheet, and the related unaudited combined statements
of income and cash flows, of the Companies as of and for the three-
month period ended March 31, 1996.
"McCall Latest Balance Sheet" shall mean the combined balance
sheet of the Companies included in the McCall Interim Financial
Statements.
<PAGE>
"Merger" shall have the meaning ascribed to such term in the
premises to this Agreement.
"Merger Agreement" shall have the meaning ascribed to such term
in the premises to this Agreement.
"Multiemployer Plan" means a plan or arrangement as defined in
Section 4001(a)(3) and 3(37) of ERISA.
"Permitted Liens" shall mean any mechanic's, worker's,
materialmen's, maritime or other liens arising as a matter of law in
the ordinary course of business consistent with past practice.
"Person" shall mean an individual, firm, corporation, general or
limited partnership, limited liability company, limited liability
partnership, joint venture, trust, governmental authority or body,
association, unincorporated organization or other entity.
"Pre-Closing Periods" shall mean all tax periods ending at or
before the Closing Date and, with respect to any tax period that
includes but does not end at the Closing Date, the portion of such
period that ends at and includes the Closing Date.
"Registration Statement" shall mean the registration statement on
Form S-3 to be filed by SEACOR with the SEC for the purpose, among
other things, of registering the SEACOR Shares which will be issued to
the Stockholders following consummation of the transactions
contemplated thereby.
"Returns" shall mean all returns, reports, estimates,
declarations, information return, statement or other similar documents
relating to Taxes, including any schedule or attachment thereto, and
including any amendment thereof.
"SEACOR Affiliated Group" shall mean SEACOR and its subsidiaries
other than the Companies.
"SEACOR Audited Financial Statements" shall mean the audited
consolidated balance sheets, and the related consolidated statements
of earnings, stockholders' equity and cash flows, and the related
notes thereto, of SEACOR and its subsidiaries as of and for the years
ended December 31, 1994 and 1995.
"SEACOR Common Stock" shall mean shares of common stock, $.01 par
value per share, of SEACOR.
"SEACOR Financial Statements" shall mean the SEACOR Audited
Financial Statements and the SEACOR Interim Financial Statements.
<PAGE>
"SEACOR Interim Financial Statements" shall mean the unaudited
consolidated balance sheet, and the related consolidated unaudited
statements of earnings and cash flows, of SEACOR and its subsidiaries
as of and for the three month period ended March 31, 1996.
"SEACOR Latest Balance Sheet" shall mean the consolidated balance
sheet included in the SEACOR Interim Financial Statements.
"SEACOR SEC Documents" shall have the meaning ascribed to such
term in Section 5.6(a).
"SEACOR Shares" shall have the meaning ascribed to such term in
Section 3.2(a).
"SEC" shall mean the Securities and Exchange Commission of the
United States.
"Securities Act" shall mean the Securities Act of 1933, as
amended.
"Stockholder Representative" shall mean Norman F. McCall, who has
been appointed by the unanimous written consent of the Stockholders as
their representative for purposes of Section 3.4 hereof or any
successor as Stockholder Representative appointed in accordance with
the terms of the Indemnification Agreement.
"Taxes" means all taxes, charges, fees, imposts, levies or other
assessments, including, without limitation, all net income, gross
receipts, sales, use, ad valorem, value added, transfer, franchise,
profits, inventory, capital stock, license, withholding, payroll,
employment, social security, unemployment, excise, severance, stamp,
occupation, property taxes, customs duties, fees, assessments and
charges of any kind whatsoever, together with any interest and any
penalties, additions to tax or additional amounts imposed by any
taxing authority (domestic or foreign) and any interest or penalties
imposed with respect to the filing, obligation to file or failure to
file any Return, and shall include any transferee liability in respect
of Taxes.
"Termination Date" shall have the meaning ascribed to such term
in Section 7.1(c).
"Undisclosed Liabilities" shall have the meaning ascribed to such
term in Section 4.7.
"Vessel Assets" shall mean (i) the 8 vessels listed on Exhibit A
hereto, all spare parts, stores and supplies, fuel and
<PAGE>
lubes (whether onboard or ashore), and all investments by the Company
in the Companies, (ii) the proceeds of the sale of any such vessel
sold by the Company between the date hereof and the Closing Date and
(iii) the proceeds (including any amount recoverable from insurance or
other sources) from total loss, nontotal loss or constructive loss of
any such vessel between the date hereof and the Closing Date.
ARTICLE 2.
THE CLOSING
Section 2.1. Closing. The closing of the transactions
-------
contemplated herein (the "Closing") will take place, assuming
satisfaction or waiver of each of the conditions set forth in
Article 6 hereof, at the offices of Stockwell, Sievert, Viccellio,
Clements & Shaddock at 1 Lakeside Plaza, 4th Floor, Lake Charles,
Louisiana, at 10:00 A.M. (Louisiana Time) on a date to be mutually
agreed upon between the parties, which shall be no later than the
third Business Day after satisfaction of the latest to occur of the
conditions set forth in Article 6 (or waiver thereof by the party
entitled to waive the same), or if no date has been agreed to, on any
date specified by one party to the others upon five days' notice
following satisfaction (or waiver) of such conditions (the date of the
Closing being referred to herein as the "Closing Date"). At the
Closing, the parties shall deliver the documents, certificates and
opinions required to be delivered by Article 6 hereof and provide
proof or indication of the satisfaction or waiver of each of the
conditions set forth in Article 6 hereof.
ARTICLE 3.
EXCHANGE OF SHARES
Section 3.1. Exchange of Company Shares. Upon the terms and
--------------------------
subject to the conditions set forth in this Agreement, each of the
Stockholders hereby agrees to assign and transfer to McCall, and
McCall hereby agrees to acquire from each of the Stockholders, on the
Closing Date, the Company Shares owned by such Stockholder.
Section 3.2. Exchange of SEACOR Shares. (a) Upon the terms and
-------------------------
subject to the conditions set forth in this Agreement, McCall agrees
to deliver, and SEACOR agrees to cause McCall to deliver, to each of
the Stockholders in exchange for each Company Share owned by such
Stockholder, as set forth on Exhibit B hereto, such number of fully
paid and nonassessable shares of SEACOR Common Stock ("SEACOR Shares")
as shall be equal to the quotient obtained by dividing (A) the Total
Exchanged Shares (as hereinafter defined) by (B) 55.7, which is
--
represented by
<PAGE>
Stockholders to be the number of Company Shares owned by the
Stockholders on the date hereof (the "Exchanged Shares"). For
purposes hereof, the "Total Exchanged Shares" shall mean a number of
shares of SEACOR Common Stock equal to the quotient obtained by
dividing (1) the sum of $5,966,314 plus 57.876% of the amount, if any,
by which the Final Adjusted Net Assets exceeds the Estimated Adjusted
Net Assets or less 57.876% of the amount, if any, by which the
Estimated Adjusted Net Assets exceeds the Final Adjusted Net Assets,
by (2) the Average Market Price.
--
(b) In lieu of the issuance of fractional shares of SEACOR
Common Stock, each of the Stockholders shall be entitled to receive a
cash payment (without interest) (each a "Fractional Payment" and,
collectively, the "Fractional Payments") equal to the fair market
value of a fraction of a share of SEACOR Common Stock to which such
Stockholder would be entitled to but for this provision. For purposes
of calculating such cash payment, the fair market value of a fraction
of a share of SEACOR Common Stock shall be such fraction multiplied by
the Average Market Price.
Section 3.3. Delivery of Company Shares; Transfer of Exchanged
-------------------------------------------------
Shares. On the Closing Date, each Stockholder shall deliver to McCall
------
certificates representing the number of Company Shares set forth
opposite such Stockholder's name on Exhibit B hereto, duly endorsed in
blank or accompanied by stock transfer powers duly executed in blank
and with all requisite stock transfer tax stamps attached. As soon as
practicable after the determination of Final Adjusted Net Assets,
McCall shall deliver the SEACOR Shares and the Fractional Payments
required under this Agreement to the Stockholders.
Section 3.4. Determination of Final Adjusted Net Assets. (a)
------------------------------------------
Within 60 days after the Closing Date, McCall shall prepare in
accordance with GAAP and deliver to the Stockholder Representative, a
consolidated closing date balance sheet for the Company and its
subsidiaries as of the Closing Date (the "Closing Balance Sheet"),
which shall be accompanied by a computation of the Adjusted Net Assets
based thereon.
(b) The Stockholder Representative shall have a period of
15 days to review the Closing Balance Sheet and the accompanying
calculation of the Adjusted Net Assets following delivery thereof by
McCall. During such period, McCall shall afford the Stockholder
Representative access to any of its books, records and work papers
necessary to enable the Stockholder Representative to review the
Closing Balance Sheet and the accompanying calculation of the Adjusted
Net Assets. The Stockholder Representative may dispute any amounts
reflected in the Adjusted Net Assets by giving notice in writing to
McCall
<PAGE>
specifying each of the disputed items and setting forth in reasonable
detail the basis for such dispute. Failure by the Stockholder
Representative to dispute the amounts reflected in the Adjusted Net
Assets within 15 days of delivery of the Closing Balance Sheet by
McCall shall be deemed an acceptance thereof by the Stockholder
Representative. If, within 30 days after delivery by the Stockholder
Representative to McCall of any notice of dispute in accordance with
this Section 3.4(b), the Stockholder Representative and McCall are
unable to resolve all of such disputed items, then any remaining items
in dispute shall be submitted to an independent nationally recognized
accounting firm selected in writing by McCall and the Stockholder
Representative or, if McCall and the Stockholder Representative fail
or refuse to select such a firm within ten Business Days after request
therefor by McCall or the Stockholder Representative, such an
independent nationally recognized accounting firm shall be selected in
accordance with the rules of the American Arbitration Association (the
"Arbitrator"). The Arbitrator shall determine the remaining disputed
items and report to McCall and the Stockholder Representative with
respect to such items. The Arbitrator's decision shall be final,
conclusive and binding on all parties. The fees and disbursements of
the Arbitrator shall be borne equally by the Stockholders and McCall.
The Adjusted Net Assets if undisputed or deemed undisputed or as
determined by the mutual agreement of McCall and the Stockholder
Representative or by the Arbitrator in accordance with the procedure
outlined above shall be the "Final Adjusted Net Assets."
Section 3.5. Registration Rights Agreement; Restrictive
------------------------------------------
Endorsement. (a) The issuance of the SEACOR Shares to Stockholders
-----------
pursuant to this Agreement will not be registered under the Securities
Act, or any state securities laws, in reliance upon certain exemptions
from registration contained therein and, therefore, will be subject to
restrictions on transfer. Pursuant to the terms and conditions of the
Investment and Registration Rights Agreement, in substantially the
form attached hereto as Exhibit C (the "Investment and Registration
Rights Agreement"), Stockholders shall have certain rights to require
the registration of the resale by Stockholders of their SEACOR Shares.
Stockholders are the record and beneficial owners of such numbers of
Company Shares as are set forth opposite their respective names on
Exhibit B hereto.
(b) Each certificate representing of SEACOR Shares to be
issued to the Stockholders pursuant to this Agreement shall be stamped
with a legend in substantially the following form:
<PAGE>
"The Shares represented by this certificate have not been
registered under the Securities Act of 1933, as amended, or any
state securities law, and may not be transferred, sold or
otherwise disposed of in the absence of such registration or an
exemption therefrom. Such Shares may be transferred only in
compliance with the conditions specified in the Investment and
Registration Rights Agreement, dated as of May 31, 1996, between
the Issuer and the other entities and individuals party thereto,
a complete and correct copy of which is available for inspection
at the principal office of the Issuer and will be furnished to
the Holder hereof upon written request and without charge."
ARTICLE 4.
REPRESENTATIONS AND WARRANTIES OF STOCKHOLDERS
Stockholders represents and warrants to SEACOR and McCall as
follows:
Section 4.1. Organization and Citizenship. (a) Each member of
----------------------------
the Cameron Group is a corporation duly organized, validly existing
and in good standing under the laws of the state of its incorporation
and has all corporate power and authority to carry on its business as
now being conducted and to own, lease and operate its properties.
Each member of the Cameron Group is duly qualified to do business and
is in good standing in each state and foreign jurisdiction in which
the character or location of the properties owned or leased by it or
the nature of the business conducted by it makes such qualification
necessary, except where the failure to be so qualified or in good
standing would not have a Material Adverse Effect on the Cameron
Group.
(b) Each member of the Cameron Group and its respective
stockholders are and at all times have been citizens of the United
States within the meaning of Section 2 of the Shipping Act, 1916, as
amended, for the purposes of owning and operating vessels in the U.S.
coastwise trade. None of the Stockholders is a "foreign person"
within the meaning of Section 1445 of the Code.
Section 4.2. Affiliated Entities. (a) Schedule 4.2(a) lists
-------------------
each member of the Cameron Group. All shares of the outstanding
capital stock or equity interests in each member of the Cameron Group
have been duly authorized and validly issued and are fully paid and
nonassessable and were not used in violation of preemptive rights and,
except as set forth in Schedule 4.2(a), are owned by the Company free
and clear of all Liens.
<PAGE>
(b) Except as listed on Schedule 4.2(b), the Company does
not, directly or indirectly, own of record or beneficially, or have
the right or obligation to acquire, any outstanding securities or
other interest in any Person.
Section 4.3. Capitalization. The authorized capital stock of
--------------
the Company consists exclusively of 1,000 shares of common stock,
$1.00 par value per share, of which 96.24 shares were issued and
outstanding and 3.76 shares were held in its treasury as of the date
hereof. All issued and outstanding shares of capital stock of the
Company are validly issued, fully paid, non-assessable and were not
issued in violation of any free of preemptive or similar rights. The
Stockholders are the record and beneficial owners of such numbers of
Company Shares as are set forth opposite their respective names on
Exhibit B hereto, which Company Shares, together with the Company
Shares owned by McCall, represent all of the issued and outstanding
shares of capital stock of the Company. There is no existing
subscription, option, warrant, call, right, commitment or other
agreement to which the Company is a party requiring, and there are no
derivative securities of the Company outstanding which upon
conversion, exercise or exchange would require, directly or
indirectly, the issuance of any additional shares of the Company's
capital stock or other securities convertible, exchangeable or
exercisable into or for shares of the Company's capital stock or any
other equity security of the Company, and there are no outstanding
contractual obligations of the Company to repurchase, redeem or
otherwise acquire any outstanding share of the Company's capital
stock.
Section 4.4. Authority; Enforceable Agreement. Each of the
--------------------------------
Stockholders has the requisite power and authority to enter into this
Agreement and to consummate the transactions contemplated hereby.
This Agreement has been duly executed and delivered by each of the
Stockholders and (assuming due execution and delivery by the other
parties hereto) constitutes a valid and binding obligation of such
Stockholder, enforceable against such Stockholder in accordance with
its terms, except as such enforceability may be limited by bankruptcy,
insolvency, reorganization or similar laws affecting creditors' rights
generally. The other agreements entered, or to be entered, into by
each of the Stockholders in connection with this Agreement have been,
or will be, duly executed and delivered by each of the Stockholders
and (assuming due execution and delivery by the other parties thereto)
constitute, or will constitute, valid and binding obligations of such
Stockholder, enforceable against such Stockholder in accordance with
their terms, except as such enforceability may be limited by
bankruptcy, insolvency,
<PAGE>
reorganization or similar laws affecting creditors' rights generally.
Section 4.5. No Conflicts or Consents. (a) Except as set
------------------------
forth on Schedule 4.5(a), neither the execution, delivery nor
performance of this Agreement by any of the Stockholders nor the
consummation of the transactions contemplated hereby will (i) violate,
conflict with, or result in a breach of any provision of, constitute a
default (or an event that, with notice or lapse of time or both, would
constitute a default) under, result in the termination of, or
accelerate the performance required by, or result in the creation of
any adverse claim against any of the properties or assets of any
member of the Cameron Group under (A) the certificate of
incorporation, by-laws or any other organizational documents of any
member of the Cameron Group, or (B) any note, bond, mortgage,
indenture, deed of trust, lease, license, agreement or other
instrument or obligation to which any member of the Cameron Group is a
party, or by which any member of the Cameron Group or any of their
assets are bound, or (ii) violate any order, writ, injunction, decree,
judgment, statute, rule or regulation of any governmental body to
which any member of the Cameron Group is subject or by which any
member of the Cameron Group or any of their assets are bound.
(b) Except as set forth on Schedule 4.5(b), no consent,
approval, order, permit or authorization of, or registration,
declaration or filing with, any Person or of any government or any
agency or political subdivision thereof is required for the execution,
delivery and performance by any of the Stockholders of this Agreement
and the covenants and transactions contemplated hereby or for the
execution, delivery and performance by any of the Stockholders of any
other agreements entered, or to be entered, into by any of the
Stockholders in connection with this Agreement.
Section 4.6. Corporate Documents. Stockholders have delivered
-------------------
to McCall true and complete copies of the Company's certificate of
incorporation and by-laws, as amended or restated through the date of
this Agreement, and the organizational documents governing each of the
Company's subsidiaries listed on Schedule 4.2(a). The minute books of
each member of the Cameron Group contain complete and accurate records
of all corporate actions of the equity owners of the various entities
and of the boards of directors or other governing bodies, including
committees of such boards or governing bodies. The stock transfer
records of the Company contain complete and accurate records of all
issuances and redemptions of capital stock by the Company.
<PAGE>
Section 4.7. Financial Statements; Liabilities. The McCall
---------------------------------
Financial Statements, to the extent that they include information with
respect to the Cameron Group, have been prepared in accordance with
GAAP applied on a basis consistent with prior periods and present
fairly the financial position of the Cameron Group as at the dates of
the balance sheet included therein and the results of operations and
cash flows for the periods then ended, except, in the case of the
McCall Interim Financial Statements, as permitted by Rule 10-01 of
Regulation S-X of the SEC. The McCall Interim Financial Statements
reflect all adjustments (consisting only of normal, recurring
adjustments) that are necessary for a fair statement of the results of
operations of the members of the Cameron Group for the interim periods
presented therein. Except as set forth on Schedule 4.7, no member of
the Cameron Group has, nor are any of their respective assets subject
to, any liability, commitment, debt or obligation (of any kind
whatsoever whether absolute or contingent, accrued, fixed, known,
unknown, matured or unmatured) ("Undisclosed Liabilities"), except
(i) as and to the extent reflected on the McCall Latest Balance Sheet,
(ii) as may have been incurred or may have arisen since the date of
the McCall Latest Balance Sheet in the ordinary course of business and
that are not material individually or in the aggregate or (iii) as
permitted by this Agreement.
Section 4.8. Accounts Receivable. All of the accounts
-------------------
receivable reflected on the McCall Latest Balance Sheet or created
thereafter, which relate to the Cameron Group, have arisen only from
bona fide transactions in the ordinary course of business, represent
valid obligations owing to the Company or another member of the
Cameron Group and have been accrued and recorded in accordance with
GAAP. Except as set forth on Schedule 4.8, such accounts receivable
either have been collected in full or will be collectible in full when
due, without any counterclaims, set-offs or other defenses and without
provision for any allowance for uncollectible accounts other than such
allowance as appears on the McCall Latest Balance Sheet.
Section 4.9. Absence of Certain Changes or Events. Except as
------------------------------------
set forth on Schedule 4.9 or as contemplated by this Agreement, since
the date of the McCall Latest Balance Sheet, each member of the
Cameron Group has conducted its business only in the ordinary course,
and has not:
(a) amended its certificate of incorporation, by-laws or
similar organizational documents;
<PAGE>
(b) incurred any liability or obligation of any nature
(whether absolute or contingent, accrued, fixed, known, unknown,
matured or unmatured), except in the ordinary course of business;
(c) suffered or permitted any of its assets to be or remain
subject to any lien other than those disclosed on Schedule 4.11(a) or
4.13(a) and that collateralize indebtedness reflected on the McCall
Latest Balance Sheet and Liens for Taxes accrued but not yet payable
and Permitted Liens;
(d) merged or consolidated with another Person or acquired
or agreed to acquire any Person or sold, leased, transferred or
otherwise disposed of any assets except for fair value in the ordinary
course of business; provided that no Company Vessels shall have been
disposed of without the consent of SEACOR (which consent shall not be
unreasonably withheld);
(e) made any capital expenditure or commitment therefor,
except in the ordinary course of business, provided that any
acquisitions of vessels (except those under construction and referred
to in the definition of Adjusted Net Assets), or acquisitions of, or
improvements to, real property, shall not be considered to be in the
ordinary course of business;
(f) declared or paid any dividend or made any distribution
with respect to any of its equity interests, or redeemed, purchased or
otherwise acquired any of its equity interests, or issued, sold or
granted any equity interests or any option, warrant or other right to
purchase or acquire any such interest other than payments within the
Cameron Group as part of McCall's cash management program that may be
characterized as dividends or distributions;
(g) adopted any employee benefit plan or made any change in
any existing employee benefit plans or made any bonus or profit
sharing distribution or payment of any kind;
(h) increased indebtedness for borrowed money, or made any
loan to any Person, other than through the issuance of standby or
performance letters of credit issued in the ordinary course of
business;
(i) made any change affecting any banking, safe deposit or
power of attorney arrangements;
(j) written off as uncollectible any notes or accounts
receivable, except for notes or accounts receivable in the ordinary
course of business charged to applicable allowances reflected in the
McCall Latest Balance Sheet, and none of which
<PAGE>
individually or in the aggregate is material to the Cameron Group;
(k) entered into or amended any employment, severance or
similar agreement or arrangement with any director or employee, or
granted any increase in the rate of wages, salaries, bonuses, employee
advances or other compensation or benefits of any executive officer or
other employee, other than any such increase that is both in the
ordinary course of business consistent with past practice and in an
amount such that, after giving effect thereto, aggregate employee
compensation expense (considered on an annualized basis) does not
exceed 105% of the aggregate employee compensation expense for the
Company's fiscal year ended December 31, 1995;
(l) cancelled, waived, released or otherwise compromised
any debt, claim or right, except as permitted under clause (j);
(m) made any change in any method of accounting principle
or practice;
(n) suffered the termination, suspension or revocation of
any license or permit necessary for the operation of its business or
any of the Company Vessels;
(o) entered into any transaction other than on an arm's-
length basis;
(p) suffered any damage, destruction or loss (whether or
not covered by insurance) which has had or could reasonably be
expected to have a Material Adverse Effect on the Cameron Group; or
(q) agreed, whether or not in writing, to do any of the
foregoing.
Section 4.10. Contracts. (a) Except as set forth on Schedule
---------
4.10(a), no member of the Cameron Group is a party to: (i) any
collective bargaining agreement; (ii) any Contract with any employee;
(iii) any Contract, containing any covenant limiting its freedom to
engage in any line of business or to compete with any Person; (iv) any
Contract containing an obligation to guarantee or indemnify any other
Person; (v) any joint venture, partnership or similar Contract
involving a sharing of profits or expenses; (vi) any Contract under
which any member of the Cameron Group is the licensee or licensor of
patents, copyrights, trademarks, applications for any of the foregoing
or any other intellectual property rights of any
<PAGE>
nature; (vii) any Contract between any member of the Cameron Group and
any of their respective Affiliates (other than other members of the
Cameron Group); (viii) any Contract under which any member of the
Cameron Group has borrowed any money or issued any note, bond or other
evidence of indebtedness for borrowed money or guaranteed indebtedness
for money borrowed by others; (ix) any hedge, swap, exchange, futures
or similar Contracts; or (x) any Contract that has had or may have a
Material Adverse Effect on the Cameron Group.
(b) Schedule 4.10(b) contains a list and brief description
(including the names of the parties and the date and nature of the
agreement) of each material Contract to which any member of the
Cameron Group is a party. There is no existing breach by any member
of the Cameron Group of any of its material Contracts and there has
not occurred any event that with the lapse of time or the giving of
notice or both would constitute such a breach. There is not pending
nor, to the Knowledge of Stockholders, threatened, any claim that any
member of the Cameron Group, has breached any of the terms or
conditions of any of its material Contracts and, to the Knowledge of
Stockholders, no other parties to such Contracts have breached any of
their terms or conditions. SEACOR has been provided with a complete
and accurate copy of each Contract listed on Schedule 4.10(b).
Section 4.11. Properties and Leases other than Vessels. (a)
----------------------------------------
With respect to assets other than vessels and except for assets
disposed of for adequate consideration in the ordinary course of
business and which are not material to the operation of its business,
a member of the Cameron Group has good and valid title to all real
property and all other properties and assets accounted for as
belonging to a member of the Cameron Group in the McCall Latest
Balance Sheet free and clear of all Liens, except for (i) Liens that
secure indebtedness that is properly reflected in the McCall Latest
Balance Sheet; (ii) Liens for Taxes accrued but not yet payable;
(iii) Permitted Liens, provided that the obligations collateralized by
such Permitted Liens are not delinquent or are being contested in good
faith; (iv) such imperfections of title and encumbrances, if any, as
do not in the aggregate materially detract from the value or
materially interfere with the present use of any such properties or
assets or the potential sale of any such properties and assets; and
(v) capital leases and leases of such properties, if any, to third
parties for fair and adequate consideration. Schedule 4.11(a)
contains a list of (i) all Liens (other than Permitted Liens and Liens
for Taxes accrued but not yet payable) on property of the Cameron
Group other than vessels collateralizing indebtedness on the McCall
Latest Balance Sheet, (ii) any guaranty or other credit support
arrangement pursuant to
<PAGE>
which any member of the Cameron Group has guaranteed an obligation of
any other member of the Cameron Group where assets other than vessels
are the collateral and (iii) certain items of personal property not
owned by any member of the Cameron Group. A member of the Cameron
Group owns, or has valid leasehold interests in, all properties and
assets, other than vessels, used in the conduct of its business.
(b) With respect to each lease of real property and
material amount of personal property (other than vessels) to which a
member of the Cameron Group is a party, (i) such member of the Cameron
Group has a valid leasehold interest in such real property or personal
property; (ii) such lease is in full force and effect in accordance
with its terms; (iii) all rents and other monetary amounts that have
become due and payable thereunder have been paid in full; (iv) no
waiver, indulgence or postponement of the obligations thereunder has
been granted by the other party thereto; (v) there exists no material
default (or an event that, with notice or lapse of time or both would
constitute a material default) under such lease; (vi) such member of
the Cameron Group has not violated any of the terms or conditions
under any such lease; (vii) to the Knowledge of Stockholders, there
has been no (A) condition or covenant to be observed or performed by
any other party under any such lease that has not been fully observed
and performed and (B) in the case of each prime lease concerning
demised premises subleased to any member of the Cameron Group,
condition or covenant to be observed or performed by each party
thereto that has not been fully observed and performed and there does
not exist any event of default or event, occurrence, condition or act
that, with the giving of notice, the lapse of time or the happening of
any further event or condition, would become a default under any such
prime lease; and (viii) the transactions described in this Agreement
will not constitute a default under or cause for termination or
modification of such lease.
(c) Except as disclosed on Schedule 4.11(c), the rent
charged to any member of the Cameron Group under any lease (other than
with respect to vessels) between any member of the Cameron Group and
any of its Affiliates (other than another member of the Cameron Group)
is at or below the market rate and any such lease contains such other
terms and conditions that are no less favorable to the Company than
would be obtainable in an arms-length transaction with an independent
third party lessor.
(d) Schedule 4.11(d) contains a list of all real property
owned by members of the Cameron Group and a list of all leases, other
than with respect to vessels, to which members of the Cameron Group
are parties, which list includes a reasonable
<PAGE>
description of the location and approximate square footage of each
property, whether owned or leased, and the term of each such lease,
including all renewal options. Complete and correct copies of each
lease has been delivered to McCall.
Section 4.12. Condition of the Company's Assets Other than
--------------------------------------------
Vessels. All of the tangible assets of the Cameron Group (other than
-------
vessels) are currently in good and usable condition, ordinary wear and
tear excepted, and are being used in the business of the Cameron
Group. There are no defects in such assets or other conditions that
in the aggregate have or would be reasonably likely to have, a
Material Adverse Effect on the Cameron Group. Such assets and the
other properties being leased by a member of the Cameron Group
pursuant to the leases described on Schedule 4.11(d), together with
the vessels listed on Schedule 4.13(a), constitute all of the
operating assets being utilized by the Cameron Group in the conduct of
its business and such assets are sufficient in quantity and otherwise
adequate for the operations of the Cameron Group as currently
conducted.
Section 4.13. Vessels. (a) Schedule 4.13(a) hereto sets forth
-------
a list of all vessels owned, leased, chartered or managed by any
member of the Cameron Group on the date hereof and the name of the
nation under which each such vessel is documented and flagged, and
indicates any such vessels that are laid up or being held for sale on
the date hereof (such vessel, including related spare parts, stores
and supplies (other than any such vessels that are managed on the date
hereof), being referred to herein as "Company Vessels"). Except as
noted on Schedule 4.13(a), with respect to the owned Company Vessels,
each member of the Cameron Group is the sole owner of each Company
Vessel owned by it and has good title to each such vessel free and
clear of all Liens, except for (i) Liens that collateralize
indebtedness that is properly reflected in the McCall Latest Balance
Sheet ; (ii) Liens for Taxes accrued but not yet payable;
(iii) Permitted Liens, provided that the obligations collateralized by
such Permitted Liens are not delinquent or are being contested in good
faith and, except with respect to the matters disclosed on Schedule
4.19, in no event shall such contested obligations, individually or in
the aggregate, exceed $50,000 in the aggregate. Schedule 4.13(a)
contains a list of all Liens (other than Permitted Liens which
collateralize obligations that are not delinquent or that are being
contested in good faith and, except with respect to the matters
disclosed on Schedule 4.19, do not exceed $50,000 in the aggregate) on
vessels collateralizing indebtedness on the McCall Latest Balance
Sheet and any guaranty or other credit support arrangement pursuant to
which any member of the Cameron Group has guaranteed an obligation of
any other member of the Cameron Group where vessels are the
collateral.
<PAGE>
(b) With respect to each Company Vessel that is operated by
a member of the Cameron Group under lease or charter and except as
disclosed on Schedule 4.13(b), (i) such member of the Cameron Group
has a valid right to charter or a valid leasehold interest in such
vessel; (ii) such charter agreement or lease is in full force and
effect in accordance with its terms; (iii) all rents, charter payments
and other monetary amounts that have become due and payable thereunder
have been paid in full; (iv) no waiver, indulgence or postponement of
the obligations thereunder has been granted by the other party
thereto; (v) there exists no material default (or an event that, with
notice or lapse of time or both would constitute a material default)
under such charter agreement or lease; (vi) such member of the Cameron
Group has not violated any of the terms or conditions under any such
charter agreement or lease and, to the Knowledge of Stockholders,
there is no condition or covenant to be observed or performed by any
other party under such charter agreement or lease that has not been
fully observed or performed; (vii) the transactions described in this
Agreement will not constitute a default under or cause for termination
or modification of such charter agreement or lease; and (viii) to the
Knowledge of Stockholders, there is no unrepaired damage to any
equipment that could affect certification or class or be budgeted for
repair in the next twelve months.
(c) Schedule 4.13(c) contains a list of all leases or
charters providing for the use by a member of the Cameron Group of a
Company Vessel, which list contains a description of the terms of such
lease or charter. Complete and correct copies of each lease or
charter have been delivered to McCall.
(d) With respect to each Company Vessel and except as
indicated on Schedule 4.13(d), (i) such Company Vessel is lawfully and
duly documented under the flag of the nation listed on Schedule
4.13(a) for such Company Vessel, (ii) such Company Vessel is afloat
and in satisfactory operating condition for charter, (iii) such
Company Vessel holds in full force and effect all certificates,
licenses, permits and rights required for operation in the manner
vessels of its kind are being operated in the geographical area in
which such Company Vessel is presently being operated, (iv) to the
Knowledge of Stockholders, no event has occurred and no condition
exists that would materially or adversely effect the condition of such
Company Vessel and (v) with respect to any Company Vessel which is
classed, such vessel is in class, free of any recommendations of which
any member of the Cameron Group has been informed.
Section 4.14. Accounting Matters. To the Knowledge of
------------------
Stockholders, no member of the Cameron Group nor any of its
<PAGE>
Affiliates has taken or agreed to take any action that (without giving
effect to any action taken or agreed to be taken by SEACOR or any of
its Affiliates) would prevent SEACOR from accounting for the business
combination to be effected by the Acquisition as a pooling-of-
interests.
Section 4.15. Suppliers and Customers. To the Knowledge of
-----------------------
Stockholders and except as disclosed on Schedule 4.15, (a) no supplier
providing products, materials or services to any member of the Cameron
Group intends to cease selling such products, materials or services to
any member of the Cameron Group or to limit or reduce such sales to
any member of the Cameron Group or materially alter the terms or
conditions of any such sales and (b) no customer of any member of the
Cameron Group intends to terminate, limit or reduce its or their
business relations with any member of the Cameron Group.
Section 4.16. Employee Matters. (a) Schedule 4.16(a) sets
----------------
forth the name, title, current annual compensation rate (including
bonus and commissions, but separately identifying salary or hourly
rate), accrued bonus, accrued sick leave, accrued severance pay and
accrued vacation benefits of each officer of each member of the
Cameron Group, and a list of all employment, consulting, employee
confidentiality or similar Contracts to which any member of the
Cameron Group is a party. Copies of organizational charts, any
employee handbook(s), and any reports and/or plans prepared or adopted
pursuant to the Equal Employment Opportunity Act of 1972, as amended,
have been provided to SEACOR.
(b) Each of the following is true with respect to each
member of the Cameron Group:
(i) each such member is in compliance with all applicable
laws respecting employment and employment practices, terms and
conditions of employment, wages and hours and occupational safety
and health, and is not engaged in any unfair labor practice
within the meaning of Section 7 of the National Labor Relations
Act, and there is no proceeding pending or, to the Knowledge of
Stockholders, threatened, or, to the Knowledge of Stockholders,
any pending or threatened investigation against it relating to
any thereof, and, to the Knowledge of Stockholders, there is no
basis for any such proceeding or investigation;
(ii) to the Knowledge of Stockholders, none of the employees
of any such member is a member of, or represented by, any labor
union and there are no efforts being made to unionize any of such
employees; and
<PAGE>
(iii) to the Knowledge of Stockholders, there are no charges
or complaints of, or proceedings involving, discrimination or
harassment (including but not limited to discrimination or
harassment based upon sex, age, marital status, race, religion,
color, creed, national origin, sexual preference, handicap or
veteran status) pending or, to the Knowledge of Stockholders,
threatened, nor, to the Knowledge of Stockholders, is there any
pending or threatened investigation, including, but not limited
to, investigations before the Equal Employment Opportunity
Commission or any federal, state or local agency or court, with
respect to any such member.
Section 4.17. Employee Benefit Plans. With respect to each
----------------------
member of the Cameron Group:
(a) Schedule 4.17(a) lists each Employee Plan that each
member of the Cameron Group maintains, administers, contributes to, or
has any contingent liability with respect to. Stockholders have
provided a true and complete copy of each such Employee Plan, current
summary plan description, (and, if applicable, related trust
documents) and all amendments thereto and written interpretations
thereof together with (i) the three most recent annual reports
prepared in connection with each such Employee Plan (Form 5500
including, if applicable, Schedule B thereto); (ii) the most recent
actuarial report, if any, and trust reports prepared in connection
with each Employee Plan; (iii) all material communications received
from or sent to the Internal Revenue Service ("IRS") or the Department
of Labor within the last two years (including a written description of
any material oral communications); (iv) the most recent IRS
determination letter with respect to each Employee Plan and the most
recent application for a determination letter; (v) all insurance
contracts or other funding arrangements; and (vi) the most recent
actuarial study of any post-employment life or medical benefits
provided, if any.
(b) Schedule 4.17(b) identifies each Benefit Arrangement
that each member of the Cameron Group maintains, administers,
contributes to, or has any contingent liability with respect to.
Stockholders have furnished to SEACOR copies or descriptions of each
Benefit Arrangement and any of the information set forth in Section
4.17(a) applicable to any such Benefit Arrangement. Each Benefit
Arrangement has been maintained and administered in substantial
compliance with its terms and with the requirements (including
reporting requirements) prescribed by any and all statutes, orders,
rules and regulations which are applicable to such Benefit
Arrangement.
<PAGE>
(c) Benefits under any Employee Plan or Benefit Arrangement
are as represented in such documents and have not been increased or
modified (whether written or not written) subsequent to the dates of
such documents. Except as disclosed on Schedule 4.17(c), no member of
the Cameron Group has communicated to any employee or former employee
any intention or commitment to modify any Employee Plan or Benefit
Arrangement or to establish or implement any other employee or retiree
benefit or compensation arrangement.
(d) No Employee Plan is (i) a Multiemployer Plan, (ii) a
Title IV Plan or (iii) maintained in connection with any trust
described in Section 501(c)(9) of the Code. No member of the Cameron
Group has ever maintained or become obligated to contribute to any
employee benefit plan (i) that is subject to Title IV of ERISA,
(ii) to which Section 412 of the Code applies, or (iii) that is a
Multiemployer Plan. No member of the Cameron Group has within the
last five years engaged in, or is a successor corporation to an entity
that has engaged in, a transaction described in Section 4069 of ERISA.
(e) Each Employee Plan which is intended to be qualified
under Section 401(a) of the Code is so qualified and has been so
qualified during the period from its adoption to date, and no event
has occurred since such adoption that would adversely affect such
qualification and each trust created in connection with each such
Employee Plan forming a part thereof is exempt from tax pursuant to
Section 501(a) of the Code. A favorable determination letter has been
issued by the IRS as to the qualification of each such Employee Plan
under the Code and to the effect that each such trust is exempt from
taxation under Section 501(a) of the Code. Except as disclosed on
Schedule 4.17(e), each Employee Plan has been maintained and
administered in compliance with its terms and with the requirements
(including reporting requirements) prescribed by any and all
applicable statutes, orders, rules and regulations, including but not
limited to ERISA and the Code.
(f) Full payment has been made of all amounts which any
member of the Cameron Group is or has been required to have paid as
contributions to or benefits due under any Employee Plan or Benefit
Arrangement under applicable law or under the terms of any such plan
or any arrangement.
(g) No member of the Cameron Group, or any of their
respective directors, officers or employees has engaged in any
transaction with respect to an Employee Plan that could subject the
Company to a tax, penalty or liability for a prohibited transaction,
as defined in Section 406 of ERISA or Section 4975
<PAGE>
of the Code. None of the assets of any Employee Plan are invested in
employer securities or employer real property.
(h) To the Knowledge of Stockholders, there are no facts or
circumstances that give rise to any liability under Title I of ERISA.
(i) No member of the Cameron Group has any current or
projected liability in respect of post-retirement or post-employment
medical, death or life insurance, welfare benefits for retired,
current or former employees, except as required to avoid excise tax
under Section 4980B of the Code.
(j) Except as disclosed on Schedule 4.17(j), there is no
litigation, administrative or arbitration proceeding or other dispute
pending or threatened that involves any Employee Plan or Benefit
Arrangement which could reasonably be expected to result in a
liability to the Cameron Group or McCall.
(k) Except as disclosed on Schedule 4.17(k), no employee or
former employee of any member of the Cameron Group will become
entitled to any bonus, employee advance, retirement, severance, job
security or similar benefit or enhanced benefit (including
acceleration of an award, vesting or exercise of an incentive award)
or any fee or payment of any kind solely as a result of any of the
transactions contemplated hereby and no such disclosed payment
constitutes a parachute payment described in Section 280G of the Code.
(l) Except as disclosed in Schedule 4.17(l), no Employee
Plan provides health, medical, death or survivor benefits to any
stockholders or directors who are not employees.
Section 4.18. Tax Matters. Each of the following is true with
-----------
respect to each member of the Cameron Group to the extent applicable
to such member:
(a) All Returns have been, or will be, timely filed by (or
on behalf of) each member of the Cameron Group in accordance with all
applicable laws; all Taxes that are due, or claimed by any taxing
authority to be due from or with respect to each member of the Cameron
Group have been or will be timely paid by (or on behalf of) each
member of the Cameron Group; all Returns of (or including) each member
of the Cameron Group have been properly completed in compliance with
all applicable laws and regulations and are true, complete and correct
in all material respects and such Returns are not subject to penalties
under Section 6662 of the Code (or any corresponding provision of
state, local or foreign tax law). With respect to any period for
<PAGE>
which Returns have not yet been filed, or for which Taxes are not yet
due or owing, each member of the Cameron Group, as the case may be,
has made due and sufficient current accruals for such Taxes as
reflected on its books (including, without limitation, the McCall
Latest Balance Sheet);
(b) There are no outstanding agreements, consents, waivers
or arrangements extending the statutory period of limitation
applicable (A) to file any Return or (B) for assessment or collection
of any Taxes due from or with respect to any member of the Cameron
Group for any period prior to the date hereof, and no member of the
Cameron Group has been requested to enter into any such agreement,
consent, waiver or arrangement;
(c) There are no Liens with respect to Taxes (other than
for current Taxes not yet due and payable) upon any of the assets of
any member of the Cameron Group;
(d) All material elections with respect to Taxes affecting
any member of the Cameron Group are set forth in Schedule 4.18(d);
(e) All Taxes that any member of the Cameron Group is
required by law to withhold or collect (including Taxes required to be
withheld and collected from employee wages, salaries and other
compensation) have been duly withheld or collected, and have been
timely paid over to the appropriate governmental authorities;
(f) The United States federal income tax Returns of (or
including) each member of the Cameron Group have been examined by the
IRS or the periods covered by such Returns have been closed by
applicable statute of limitations, for all periods through December
31, 1992. The state, local and foreign Returns of (or including) each
member of the Cameron Group have been examined by the relevant taxing
authorities, or the periods covered by such Returns have been closed
by applicable statute of limitations, for all periods through December
31, 1992. All deficiencies claimed, proposed or asserted or
assessments made as a result of such examinations or any other
examinations of any member of the Cameron Group have been fully paid
or fully settled, and no issue has been raised by any federal, state,
local or foreign taxing authority in any such examination which, by
application of the same or similar principles, could reasonably be
expected to result in a proposed deficiency for any subsequent taxable
period. Schedule 4.18(f) sets forth each state and foreign
jurisdiction in which any member of the Cameron Group has, in the last
three years, filed a Return;
<PAGE>
(g) No Tax audits or other administrative proceedings are
pending with regard to any Taxes for which any member of the Cameron
Group may be liable and no member of the Cameron Group has received
any notice from any taxing authority that it intends to conduct such
an audit or commence such an administrative proceeding;
(h) No claim has been made by a taxing authority in a
jurisdiction where any member of the Cameron Group does not file
Returns that such member of the Cameron Group is or may be subject to
taxation by that jurisdiction;
(i) No member of the Cameron Group is a party to any
agreement, contract, arrangement or plan that would result, separately
or in the aggregate, in the payment of any "parachute payments" within
the meaning of Code Section 280G (or any comparable provision of state
or local law);
(j) No member of the Cameron Group has agreed, nor is it
required, to make any adjustment under Code Section 481(a) (or any
comparable provision of state or local law) by reason of a change in
any accounting method or otherwise, and there is no application
pending with any taxing authority requesting permission for any
changes in any accounting method of any member of the Cameron Group.
Neither the IRS nor any comparable taxing authority has proposed to
any member of the Cameron Group in writing or, to the Knowledge of
Stockholders, otherwise proposed any such adjustment or change in
accounting method;
(k) No member of the Cameron Group has filed a consent
pursuant to the collapsible corporation provisions of Section 341(f)
of the Code (or any corresponding provision of state, local or foreign
income law) or agreed to have Section 341(f)(2) of the Code (or any
corresponding provision of state, local or foreign income tax law)
apply to any disposition of any asset owned by it;
(l) None of the assets of any member of the Cameron Group
is property that such company is required to treat as being owned by
any other 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 Tax Reform Act of 1986;
(m) None of the assets of any member of the Cameron Group
directly or indirectly secures any debt, the interest on which is tax
exempt under Section 103(a) of the Code;
(n) None of the assets of any member of the Cameron Group
(i) is subject to Section 168(g)(i)(A) of the Code or
<PAGE>
(ii) constitutes "tax-exempt use property" within the meaning of
Section 168(h) of the Code;
(o) No member of the Cameron Group has made a deemed
dividend election under Section 1.1502- 32(f)(2) of the Treasury
Regulations or a consent dividend election under Section 565 of the
Code;
(p) No member of the Cameron Group has ever been a member
of an affiliated group of corporations filing a consolidated combined
or unitary Return other than a group of which the Company is the
parent corporation; and
(q) No member of the Cameron Group is (or has ever been) a
party to any tax sharing agreement nor has any such member assumed the
tax liability of any other person under contract.
Section 4.19. Litigation. Except as disclosed on Schedule 4.19,
----------
there are no actions, suits, proceedings, arbitrations or
investigations pending or, to the Knowledge of Stockholders,
threatened before any court, any governmental agency or
instrumentality or any arbitration panel, against or affecting any
member of the Cameron Group or, to the Knowledge of Stockholders, any
of the directors or officers of the foregoing. To the Knowledge of
Stockholders, no facts or circumstances exist that would be likely to
result in the filing of any such action that would have a Material
Adverse Effect on the Cameron Group. Except as disclosed on Schedule
4.19, no member of the Cameron Group is subject to any currently
pending judgment, order or decree entered in any lawsuit or
proceeding. All matters listed on Schedule 4.19 are either adequately
covered by insurance or accounted for through the establishment of
reasonable reserves on the McCall Latest Balance Sheet.
Section 4.20. Insurance. (a) Schedule 4.20(a) contains a list
---------
of the insurance policies that each member of the Cameron Group
currently maintains with respect to its business, vessels, properties
and employees as of the date hereof, each of which is in full force
and effect and a complete and correct copy of each has been delivered
to SEACOR. All insurance premiums currently due with respect to such
policies have been paid and no member of the Cameron Group is
otherwise in default with respect to any such policy, nor has any
member of the Cameron Group failed to give any notice or, to the
Knowledge of Stockholders, present any claim under any such policy in
a due and timely manner. There are no outstanding unpaid claims under
any such policy other than any pending claims under any of the
Company's marine insurance policies, the amount of which claims have
been recorded as a
<PAGE>
receivable and all of which are fully collectible. No member of the
Cameron Group has received notice of cancellation or non-renewal of
any such policy. Such policies are sufficient for compliance with all
requirements of law and all agreements to which any member of the
Cameron Group is a party.
(b) Except as disclosed on Schedule 4.20(b), no member of
the Cameron Group is or has ever been a member of any protection or
indemnity club.
Section 4.21. Environmental Compliance. (a) Except as set
------------------------
forth on Schedule 4.21(a), each member of the Cameron Group is and, to
the Knowledge of Stockholders, at all times in the past has been in
compliance with all Environmental Laws and each member of the Cameron
Group possesses all necessary licenses, permits, authorizations, and
other approvals and authorizations that are required under the
Environmental Laws ("Environmental Permits").
(b) Except as set forth on Schedule 4.21(b), no member of
the Cameron Group is, nor has been, subject to any pending or, to the
Knowledge of Stockholders, threatened investigations, administrative
or judicial proceedings pursuant to, or has received any notice of any
violation of, or claim alleging liability under, any Environmental
Laws, and, to the Knowledge of Stockholders, no facts or circumstances
exist that would be likely to result in a claim, citation or
allegation against any member of the Cameron Group for a violation of,
or alleging liability under, any Environmental Laws.
(c) Except as set forth on Schedule 4.21(c), there are no
above ground or underground tanks of any type (including tanks storing
gasoline, diesel fuel, oil or other petroleum products) or disposal
sites for hazardous substances, hazardous wastes or any other waste,
located on or under the real estate currently owned, leased or used by
any member of the Cameron Group and, to the Knowledge of Stockholders,
there were no such disposal sites located on or under the real estate
previously owned, leased or used by any member of the Cameron Group on
the date of the sale thereof by any member of the Cameron Group or
during the period of lease for use by any member of the Cameron Group.
(d) Except in the ordinary course of business or as listed
on Schedule 4.21(d), and in all cases in compliance with Environmental
Laws, no member of the Cameron Group has engaged any third party to
handle, transport or dispose of Hazardous Substances (including for
this purpose but not limited to, gasoline, diesel fuel, oil or other
petroleum products, or bilge waste) on its behalf. The disposal by
each member of the Cameron
<PAGE>
Group of its hazardous substances and wastes has been in compliance
with all Environmental Laws.
(e) To the Knowledge of Stockholders, no asbestos or
asbestos containing materials have been used in the construction,
repair, fitting out or retrofitting of any of the Company Vessels.
Section 4.22. Compliance With Law; Permits. Except with respect
----------------------------
to Environmental Laws, which is the subject of Section 4.21, the
following statements are true and correct:
(a) The operations and activities of each member of the
Cameron Group complies with all applicable laws, regulations,
ordinances, rules or orders of any federal, state or local court or
any governmental authority except for any violation or failure to
comply that could not reasonably be expected to result in a Material
Adverse Effect on the Cameron Group.
(b) Each member of the Cameron Group possesses all
governmental licenses, permits and other governmental authorizations
that are (i) required under all federal, state and local laws and
regulations for the ownership, use and operation of its assets or
(ii) otherwise necessary to permit the conduct of its business without
interruption, and such licenses, permits and authorizations are in
full force and effect and have been and are being fully complied with
by it except for any violation or failure to comply that could not
reasonably be expected to result in a Material Adverse Effect on the
Cameron Group. No member of the Cameron Group has received any notice
of any violation of any of the terms or conditions of any such
license, permit or authorization and, to the Knowledge of
Stockholders, no facts or circumstances exist that could form the
basis of a revocation, claim, citation or allegation against it for a
violation of any such license, permit or authorization. No such
license, permit or authorization or any renewal thereof will be
terminated, revoked, suspended, modified or limited in any respect as
a result of the transactions contemplated by this Agreement except for
any violation or failure to comply that could not reasonably be
expected to result in a Material Adverse Effect on the Cameron Group.
Section 4.23. Interests in Clients, Suppliers, Etc. Except as
------------------------------------
set forth on Schedule 4.23, no officer or director of any member of
the Cameron Group 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 Cameron Group or that has
entered into any contract with
<PAGE>
any member of the Cameron Group. Ownership of less than 1% of any
class of securities of a company whose securities are registered under
the Exchange Act will not be deemed to be a financial interest for
purposes of this Section 4.23.
Section 4.24. Transactions With Related Parties. (a) Schedule
---------------------------------
4.24(a) lists all transactions between January 1, 1993 and the date of
this Agreement involving, or for the benefit of, any member of the
Cameron Group, on the one hand, and any director or officer of any
member of the Cameron Group or Affiliate of such director or officer,
on the other hand, including (i) any debtor or creditor relationship,
(ii) any transfer or lease of real or personal property or charter or
management of any Company Vessel, and (iii) purchases or sales of
products or services.
(b) Schedule 4.24(b) lists (i) all agreements and claims of
any nature that any officer or director of any member of the Cameron
Group or any Affiliate (other than another member of the Cameron
Group) of such officer or director has with or against any member of
the Cameron Group as of the date of this Agreement that are not
identified on the McCall Latest Balance Sheet or the notes thereto and
(ii) all agreements and claims of any nature that any member of the
Cameron Group has with or against any officer or director of any
member of the Cameron Group or any Affiliate (other than another
member of the Cameron Group) of such officer or director as of the
date of this Agreement that are not identified on the McCall Latest
Balance Sheet or the notes thereto.
Section 4.25. Broker's and Finder's Fee. No agent, broker,
-------------------------
person or firm acting on behalf of any of the Stockholders or any
member of the Cameron Group is or will be entitled to any commission
or broker's or finder's fee from any of the parties hereto, or from
any Affiliate of the parties hereto, in connection with any of the
transactions contemplated herein.
Section 4.26. Disclosure. No representations or warranties by
----------
any of the Stockholders in this Agreement and no statement contained
in the schedules or exhibits or in any certificate to be delivered
pursuant to this Agreement, contains or will contain any untrue
statement of material fact or omits or will omit to state any material
fact necessary, in light of the circumstances under which it was made,
in order to make the statements herein or therein not misleading.
Section 4.27. Intellectual Property. (a) Schedule 4.27
---------------------
contains a list of any trademarks, service marks, trade names,
copyrights and patents (and any application for the registration
<PAGE>
thereof), owned or licensed by a member of the Cameron Group,
specifying as to each, as applicable: (i) the nature of such
Intellectual Property Right; (ii) the owner of each Intellectual
Property Right licensed by a member of the Cameron Group; (iii) the
expiration or termination date of each third party license; and
(iv) any third Person to whom any Intellectual Property Right owned by
a member of the Cameron Group is licensed. All of the Intellectual
Property Rights owned by any member of the Cameron Group are owned by
such member free and clear of Liens. All third party licenses are
valid, enforceable and in full force and effect, and the interests of
any member of the Cameron Group under such third party licenses are
held free and clear of any Liens. No member of the Cameron Group has
any obligation to make any royalty or other payment to any Person in
connection with the use of or right to use any Intellectual Property
Right. The making, using or selling of products or services
incorporating the subject matter of any Intellectual Property Rights
of any member of the Cameron Group does not infringe, violate or
conflict with any Intellectual Property Rights of any other Person.
(b) To the Knowledge of Stockholders, the use by any member
of the Cameron Group of the name "McCall" or any variant or derivative
thereof used by any member of the Cameron Group on the date hereof
does not violate or infringe any Intellectual Property Right of any
Person.
ARTICLE 5.
REPRESENTATIONS AND WARRANTIES OF MCCALL AND SEACOR
McCall and SEACOR represent and warrant to each of the
Stockholders as follows:
Section 5.1. Organization and Citizenship. (a) SEACOR is a
----------------------------
corporation duly organized, validly existing and in good standing
under the laws of the State of Delaware and has all corporate power
and authority to carry on its business as now being conducted and to
own, lease and operate its properties. Each other member of the
SEACOR Affiliated Group is duly organized under the laws of the state
or foreign nation of its organization and has all the requisite power
and authority under the laws of such jurisdiction to carry on its
business as now being conducted and to own its properties. Each
member of the SEACOR Affiliated Group is duly qualified to do business
and is in good standing in each state and foreign jurisdiction in
which the character or location of the properties owned or leased by
it or the nature of the business conducted by it makes such
qualification necessary, except where the failure to be so
<PAGE>
qualified or in good standing would not have a Material Adverse Effect
on SEACOR.
(b) SEACOR is a citizen of the United States within the
meaning of Section 2 of the Shipping Act, 1916, as amended for the
purposes of owning and operating vessels in the U.S. coastwise trade.
Section 5.2. Capitalization. The authorized capital stock of
--------------
SEACOR consists exclusively of 20,000,000 shares of common stock, $.01
par value per share, of which 8,513,825 shares were issued and
outstanding and 55,768 shares were held in its treasury as of May 28,
1996. All of such issued and outstanding shares have been validly
issued, are fully paid and nonassessable and were issued free of
preemptive rights, in compliance with any rights of first refusal, and
in compliance with all legal requirements.
Section 5.3. Authority; Enforceable Agreements. (a) SEACOR
---------------------------------
has the requisite corporate power and authority to enter into this
Agreement and to consummate the transactions contemplated hereby. The
execution and delivery of this Agreement by SEACOR and the
consummation by SEACOR of the transactions contemplated hereby have
been duly authorized by all necessary corporate action on the part of
SEACOR. This Agreement has been duly executed and delivered by SEACOR
and (assuming due execution and delivery by the other parties hereto)
constitutes a valid and binding obligation of SEACOR, enforceable
against SEACOR in accordance with its terms, except as such
enforceability may be limited by bankruptcy, insolvency,
reorganization or similar laws affecting creditors' rights generally.
The other agreements entered, or to be entered, into by SEACOR in
connection with this Agreement have been, or will be, duly executed
and delivered by SEACOR and (assuming due execution and delivery by
the other parties thereto) constitute, or will constitute, valid and
binding obligations of SEACOR, enforceable against SEACOR in
accordance with their terms, except as such enforceability may be
limited by bankruptcy, insolvency, reorganization or similar laws
affecting creditors' rights generally.
(b) McCall has the requisite power and authority to enter
into this Agreement and to consummate the transactions contemplated
hereby. The execution and delivery of this Agreement by McCall and
the consummation by McCall of the transactions contemplated hereby
have been duly authorized by all necessary corporate action on the
part of McCall. This Agreement has been duly executed and delivered
by McCall and (assuming due execution and delivery by the other
parties hereto) constitutes a
<PAGE>
valid and binding obligation of McCall, enforceable against McCall in
accordance with its terms, except as such enforceability may be
limited by bankruptcy, insolvency, reorganization or similar laws
affecting creditors' rights generally. The other agreements entered,
or to be entered, into by McCall in connection with this Agreement
have been, or will be, duly executed and delivered by McCall and
(assuming due execution and delivery by the other parties thereto)
constitute, or will constitute, valid and binding obligations of
McCall, enforceable against McCall in accordance with their terms,
except as such enforceability may be limited by bankruptcy,
insolvency, reorganization or similar laws affecting creditors' rights
generally.
Section 5.4. No Conflicts or Consents. (a) Neither the
------------------------
execution, delivery nor performance of this Agreement by SEACOR nor
the consummation of the transactions contemplated hereby will (i)
violate, conflict with, or result in a breach of any provision of,
constitute a default (or an event that, with notice or lapse of time
or both, would constitute a default) under, result in the termination
of, or accelerate the performance required by, or result in the
creation of any adverse claim against any of the properties or assets
of any member of the SEACOR Affiliated Group under (A) the
certificates of incorporation, by-laws or other organizational
documents of any member of the SEACOR Affiliated Group or (B) any
note, bond, mortgage, indenture, deed of trust, lease, license,
agreement or other instrument or obligation to which any member of the
SEACOR Affiliated Group is a party, or by which any of its assets are
bound, or (ii) subject to obtaining clearance under the HSR Act,
violate any order, writ, injunction, decree, judgment, statute, rule
or regulation of any governmental body to which any member of the
SEACOR Affiliated Group is subject or by which any of its assets are
bound.
(b) No consent, approval, order, permit or authorization
of, or registration, declaration or filing with, any Person or of any
government or any agency or political subdivision thereof is required
for the execution, delivery and performance by SEACOR of this
Agreement and the covenants and transactions contemplated hereby or
for the execution, delivery and performance by SEACOR of any other
agreements entered, or to be entered, into by SEACOR in connection
with this Agreement, except for the filing of the Registration
Statement on Form S-3 with the SEC, any filings, consents or approvals
in connection therewith and the declaration of effectiveness thereof
by the SEC as contemplated by the Investment and Registration Rights
Agreement.
<PAGE>
Section 5.5. Corporate Documents. SEACOR has delivered to
-------------------
Stockholders true and complete copies of its certificate of
incorporation and by-laws, as amended or restated through the date of
this Agreement.
Section 5.6. SEC Documents; Financial Statements; Liabilities.
------------------------------------------------
(a) SEACOR has filed all required reports, schedules, forms,
statements and other documents with the SEC since December 31, 1993
(the "SEACOR SEC Documents"). As of their respective dates, the
SEACOR SEC Documents complied as to form in all material respects with
the requirements of the Securities Act or the Exchange Act, as the
case may be, and the rules and regulations of the SEC promulgated
thereunder applicable to such SEACOR SEC Documents, and none of the
SEACOR SEC Documents contained any untrue statement of a material fact
or omitted to state a material fact required to be stated therein or
necessary in order to make the statements therein, in light of the
circumstances under which they were made, not misleading.
(b) The SEACOR Financial Statements included in the SEACOR
SEC Documents have been prepared in accordance with GAAP applied on a
basis consistent with prior periods, and present fairly the financial
position of SEACOR and its subsidiaries at the dates of the balance
sheets included therein and the results of operations and cash flows
for the periods then ended, except, in the case of the SEACOR Interim
Financial Statements, as permitted by Rule 10-01 of Regulation S-X of
the SEC. The SEACOR Interim Financial Statements reflect all
adjustments (consisting only of normal recurring adjustments) that are
necessary for a fair statement of the results for the interim periods
presented therein. No member of the SEACOR Affiliated Group has, nor
are any of their respective assets subject to, any liability,
commitment, debt or obligation (of any kind whatsoever whether
absolute or contingent, accrued, fixed, known, unknown, matured or
unmatured), except (i) as and to the extent reflected on the SEACOR
Latest Balance Sheet, (ii) as may have been incurred or may have
arisen since the date of the SEACOR Latest Balance Sheet in the
ordinary course of business and that are not material individually or
in the aggregate or (iii) as permitted by this Agreement.
Section 5.7. Absence of Certain Changes or Events. Since the
------------------------------------
date of the SEACOR Latest Balance Sheet, each member of the SEACOR
Affiliated Group has conducted its business only in the ordinary
course, and has not:
(a) amended its certificate of incorporation, by-laws or
similar organizational documents;
<PAGE>
(b) merged or consolidated with another Person (other than
a subsidiary) or acquired or agreed to acquire any Person, or sold,
leased, transferred or otherwise disposed of any material portion of
its assets except for fair value in the ordinary course of business;
(c) suffered any damage, destruction or loss (whether or
not covered by insurance) which has had or could reasonably be
expected to have a Material Adverse Effect on the SEACOR Affiliated
Group; or
(d) declared or paid any dividend or made any distribution
with respect to any of its equity interests, or redeemed, purchased or
otherwise acquired any of its equity interests, or issued, sold or
granted any equity interests or any option, warrant or other right to
purchase or acquire any such interest or effected any split or
reclassification thereof other than (i) grants of stock options or
restricted stock and issuances of shares of SEACOR Common Stock upon
the exercise of stock options or conversion of any outstanding
convertible securities, (ii) the acceptance by SEACOR of any shares in
consideration of the exercise of any stock options or in satisfaction
of any tax or tax withholding obligations of the holders of such
options, and (iii) payments within the SEACOR Affiliated Group by
entities other than SEACOR as part of its cash management program; or
(e) agreed, whether or not in writing, to do any of the
foregoing.
Section 5.8. Contracts. Each Contract which any member of the
---------
SEACOR Affiliated Group is a party that would be required to be filed
as an exhibit to a report, schedule, form, statement or other document
filed by SEACOR with the SEC (each a "Material Contract") has been so
filed and, except as set forth on Schedule 5.8, between the date of
the filing of its most recent Quarterly Report on Form 10-Q and the
date of this Agreement, SEACOR has not entered into any Material
Contract other than this Agreement. No member of the SEACOR
Affiliated Group has breached, nor is there any pending or, to the
Knowledge of SEACOR, threatened, claim that it has breached, any of
the terms or conditions of any of its Material Contracts, and to the
Knowledge of SEACOR, no other parties to any such Material Contract
have breached any of its terms or conditions.
Section 5.9. Litigation. Except as disclosed in a SEACOR SEC
----------
Document or listed on Schedule 5.9, there are no actions, suits,
proceedings, arbitrations or investigations pending or, to the
Knowledge of SEACOR, threatened, before any court, any
<PAGE>
governmental agency or instrumentality or any arbitration panel,
against or affecting any member of the SEACOR Affiliated Group or, to
the Knowledge of SEACOR, any of the directors or officers of the
foregoing, that would have a Material Adverse Effect on SEACOR. To
the Knowledge of SEACOR, no facts or circumstances exist that would be
likely to result in the filing of any such action. No member of the
SEACOR Affiliated Group is subject to any currently pending judgment,
order or decree entered in any lawsuit or proceeding.
Section 5.10. Legality of SEACOR Common Stock. The SEACOR
-------------------------------
Common Stock to be issued in connection with the Acquisition, when
issued and delivered in accordance with the terms hereof, will be duly
authorized, validly issued, fully paid and non-assessable, and free of
pre-emptive rights.
Section 5.11. Broker's and Finder's Fee. No agent, broker,
-------------------------
Person or firm acting on behalf of SEACOR is or will be entitled to
any commission or broker's or finder's fee from any of the parties
hereto, or from any Affiliate of the parties hereto, in connection
with any of the transactions contemplated herein.
ARTICLE 6.
CLOSING CONDITIONS
Section 6.1. Conditions Applicable to All Parties. The
------------------------------------
obligations of each of the parties hereto to effect the Acquisition
and the other transactions contemplated by this Agreement is subject
to the satisfaction of the following condition:
(a) No action, suit or proceeding before any court or
governmental or regulatory authority will be pending, no investigation
by any governmental or regulatory authority will have been commenced,
and no action, suit or proceeding by any governmental or regulatory
authority will have been threatened, against McCall SEACOR, the
Company or any of the principals, officers or directors of any of
them, seeking to restrain, prevent or change the transactions
contemplated hereby or questioning the legality or validity of any
such transactions or seeking substantial damages in connection with
any such transactions.
Section 6.2. Conditions to McCall's Obligations. The
----------------------------------
obligations of McCall to effect the Acquisition and the other
transactions contemplated by this Agreement are also subject to the
satisfaction or waiver of the following conditions at or prior to the
Closing:
<PAGE>
(a) (i) The representations and warranties of Stockholders
in this Agreement or in any certificate delivered to McCall pursuant
hereto as of the date hereof will be deemed to have been made again at
and as of the Closing Date (without regard to any Schedule updates
furnished by Stockholders after the date hereof unless consented to by
McCall) and will then be true and correct in all material respects,
and (ii) Stockholders will have performed and complied in all material
respects with all agreements and conditions required by this Agreement
to be performed or complied with by Stockholders prior to or on the
Closing Date, except to the extent any such representation or warranty
or performance or compliance, as the case may be, is qualified by
materiality or by reference to the term "Material Adverse Effect", in
which case such representation or warranty or performance or
compliance shall be true and correct in all respects.
(b) There shall not have occurred any event or circumstance
that shall have resulted in or is reasonably likely to result in a
Material Adverse Effect with respect to the Cameron Group from the
date of the McCall Latest Balance Sheet to the Closing Date.
(c) All governmental and other material third-party
consents and approvals, if any, necessary to permit the consummation
of the transactions contemplated by this Agreement, including, but not
limited to, the transfer or obtaining of all material permits, or to
permit the continued operation of the business of the Company in
substantially the same manner after the Closing Date as immediately
prior to the Closing Date and otherwise consistent with the provisions
of this Agreement, shall have been received.
(d) The receipt by McCall of a certificate executed by the
Stockholders dated the Closing Date, certifying that the conditions
specified in Section 6.2(a) and (b) hereof have been fulfilled.
(e) Stockholders will have delivered to McCall, each dated
as of a date not earlier than five days prior to the Closing Date, (i)
copies of the certificates of incorporation or comparable documents of
the Company, including all amendments thereto, certified by the
appropriate government official of the jurisdiction of incorporation,
(ii) to the extent issued by such jurisdiction, certificates from the
appropriate governmental official to the effect that each member of
the Cameron Group is in good standing in such jurisdiction and listing
all organizational documents of the members of the Cameron Group on
file, (iii) to the extent issued by such jurisdiction, a
<PAGE>
certificate from the appropriate governmental official in each
jurisdiction in which each member of the Cameron Group is qualified to
do business to the effect that such member is in good standing in such
jurisdiction and (iv) to the extent issued by such jurisdiction,
certificates as to the tax status of each member of the Cameron Group
in its jurisdiction of organization and each jurisdiction in which
such member is qualified to do business.
(f) McCall shall have received from Jones, Walker,
Waechter, Poitevent, Carrere & Denegre, LLP, counsel to Stockholders
that are not natural persons, an opinion, dated as of the Closing
Date, to the effect set forth in Exhibit D.
(g) Each of the Stockholders shall have executed and
delivered the Investment and Registration Rights Agreement, an
Indemnification Agreement substantially in the form attached hereto as
Exhibit E (the "Indemnification Agreement"), and an Escrow Agreement
substantially in the form attached hereto as Exhibit F (the "Escrow
Agreement").
(h) Each of the Stockholders shall have delivered to McCall
certificates representing the number of Company Shares set forth
opposite such Stockholder's name on Exhibit B hereto, duly endorsed in
blank or accompanied by stock transfer powers duly executed in blank
and with all requisite stock transfer tax stamps attached.
Section 6.3. Conditions to Stockholder's Obligations. The
---------------------------------------
obligations of Stockholders to effect the Acquisition and the other
transactions contemplated by this Agreement are also subject to the
satisfaction or waiver of the following conditions at or prior to the
Closing:
(a) (i) The representations and warranties of SEACOR and
McCall in this Agreement or in any certificate delivered to
Stockholders pursuant hereto as of the date hereof will be deemed to
have been made again at and as of the Closing Date (without regard to
any Schedule updates furnished by McCall after the date hereof unless
consented to by Stockholders) and will then be true and correct in all
material respects, and (ii) McCall will have performed and complied in
all material respects with all agreements and conditions required by
this Agreement to be performed or complied with by McCall prior to or
on the Closing Date, except to the extent any such representation or
warranty or performance or compliance, as the case may be, is
qualified by materiality or by reference to the term "Material Adverse
Effect", in which case such representation or warranty or
<PAGE>
performance or compliance shall be true and correct in all respects.
(b) There shall not have occurred any event or circumstance
that shall have resulted in or is reasonably likely to result in a
Material Adverse Effect with respect to the SEACOR Affiliated Group
from the date of the SEACOR Latest Balance Sheet to the Closing Date;
provided, however, that a decline in the price per share of SEACOR
-------- -------
Common Stock on the NASDAQ Stock Market shall not in and of itself
constitute a Material Adverse Effect.
(c) All governmental and other material consents and
approvals, if any, necessary to permit the consummation of the
transactions contemplated by this Agreement shall have been received.
(d) The receipt by Stockholders of a certificate executed
by the Chief Financial Officer of SEACOR and an Executive Officer of
McCall dated the Closing Date, certifying that the conditions
specified in Section 6.3(a) and (b) hereof have been fulfilled.
(e) SEACOR will have delivered to the Stockholders a
certificate dated as of a date not earlier than five days prior to the
Closing Date from the appropriate governmental official to the effect
that SEACOR is in good standing in the State of Delaware and listing
all charter documents of SEACOR on file.
(f) The receipt by Stockholders of an opinion from Weil,
Gotshal & Manges LLP, counsel to SEACOR, and Lugenbuhl, Burke,
Wheaton, Peck, Rankin & Hubbard, Louisiana counsel to McCall and
SEACOR, which, together, cover the matters set forth in Exhibit H.
(g) SEACOR shall have executed and delivered the Investment
and Registration Rights Agreement, the Indemnification Agreement, and
the Escrow Agreement.
ARTICLE 7.
TERMINATION
Section 7.1. Termination. This Agreement may be terminated and
-----------
the Acquisition contemplated herein abandoned at any time before the
Closing Date.
(a) By the mutual written consent of the Board of Directors
of McCall and the Stockholder Representative.
<PAGE>
(b) By the Board of Directors of McCall or by the
Stockholder Representative if there has been a material breach by the
other of any representation or warranty contained in this Agreement or
of any covenant contained in this Agreement, which in either case
cannot be, or has not been, cured within 15 days after written notice
of such breach is given to the party committing such breach, provided
that the right to effect such cure shall not extend beyond the date
set forth in Section 7.1(c) below.
(c) By the Board of Directors of McCall if (i) all
conditions to Closing required by Article 6 hereof have not been met
by or waived by November 20, 1996 (the "Termination Date"), or (ii)
any such condition cannot be met by such date and has not been waived
by each party in whose favor such condition inures; provided, however,
-------- -------
that neither McCall nor the Stockholder Representative shall be
entitled to terminate this Agreement pursuant to this subparagraph (c)
if such party is in willful and material violation of any of its
representations, warranties or covenants in this Agreement.
(d) If any governmental authority shall have issued an
order, decree or ruling or taken any other action permanently
enjoining, restraining or otherwise prohibiting the Acquisition and
such order, decree, ruling or other action shall have become final and
nonappealable.
Section 7.2. Effect of Termination. Upon termination of this
---------------------
Agreement pursuant to this Article 7, this Agreement shall be void and
of no effect and shall result in no obligation of or liability to any
party or their respective directors, officers, employees, agents or
shareholders, unless such termination was the result of an intentional
breach of any representation, warranty or covenant in this Agreement
in which case the party who breached the representation, warranty or
covenant shall be liable to the other party for damages, and all costs
and expenses incurred in connection with the preparation, negotiation,
execution and performance of this Agreement.
ARTICLE 8.
MISCELLANEOUS
Section 8.1. Notices. All notices hereunder must be in writing
-------
and will be deemed to have been duly given upon receipt of hand
delivery; certified or registered mail; return receipt requested; or
telecopy transmission with confirmation of receipt:
<PAGE>
(a) If to McCall or SEACOR:
SEACOR Holdings, Inc.
1370 Avenue of the Americas
New York, New York 10019
Attention: Charles Fabrikant
with a copy to: Randall Blank
and to:
Weil Gotshal & Manges LLP
767 Fifth Avenue
New York, New York 10153
Attention: David E. Zeltner, Esq.
(b) If to Stockholders:
At their respective addresses appearing
in the books and records of the Company
with a copy to:
Stockwell, Sievert, Viccellio, Clements & Shaddock, L.L.P.
First National Bank Building
One Lakeside Plaza
P.O. Box 2900
Lake Charles, Louisiana 70602-2900
Attention: William E. Shaddock, Esq.
and to:
Jones, Walker, Waechter, Poitevent, Carrere
& Denegre L.L.P.
Place St. Charles
201 St. Charles Avenue
51st Floor
New Orleans, Louisiana 70170-5100
Attention: Carl C. Hanemann, Esq.
Telecopy No.: (504) 582-8398
Such names and addresses may be changed by written notice to each
person listed above.
Section 8.2. Governing Law. This Agreement shall be governed
-------------
by, construed and interpreted in accordance with the laws of the State
of Louisiana, regardless of the laws that might
<PAGE>
otherwise govern under applicable principles of conflicts of laws
thereof.
Section 8.3. Counterparts. This Agreement may be executed in
------------
counterparts, each of which will be deemed an original but all of
which together will constitute one and the same instrument.
Section 8.4. Interpretation. (a) When a reference is made in
--------------
this Agreement to a Section, Exhibit or Schedule, such reference shall
be to a Section of, or an Exhibit or Schedule to, this Agreement
unless otherwise indicated. The table of contents and headings
contained in this Agreement are for reference purposes only and shall
not affect in any way the meaning or interpretation of this Agreement.
Whenever the words "include," "includes" or "including" are used in
this Agreement, they shall be deemed to be followed by the words
"without limitation."
Section 8.5. Entire Agreement; Severability. (a) This
------------------------------
Agreement, including the Exhibits and Schedules hereto, embodies the
entire agreement and understanding of the parties hereto in respect of
the subject matter contained herein. This Agreement supersedes all
prior agreements and understandings (whether written or oral) between
the parties with respect to such subject matter.
(b) If any provision of this Agreement is determined to be
invalid or unenforceable, in whole or in part, it is the parties'
intention that such determination will not be held to affect the
validity or enforceability of any other provision of this Agreement,
which provisions will otherwise remain in full force and effect.
Section 8.6. Amendment and Modification. This Agreement may be
--------------------------
amended or modified only by written agreement of the parties hereto;
provided, however, that there shall be made no amendment that by law
-------- -------
requires approval by the stockholders of a party hereto without the
approval of such stockholders.
Section 8.7. Extension; Waiver. At any time prior to the
-----------------
Closing Date, the parties may (a) extend the time for the performance
of any of the obligations or other acts of the other parties, (b)
waive any inaccuracies in the representations and warranties contained
in this Agreement or in any document delivered pursuant to this
Agreement or (c) waive compliance with any of the agreements or
conditions contained in this Agreement. The failure of a party to
insist upon strict adherence to any term of this Agreement on any
occasion shall not be considered a waiver or deprive that party of the
right thereafter to insist upon strict adherence to that term or any
other term of this
<PAGE>
Agreement. No waiver of any breach of this Agreement shall be held to
constitute a waiver of any other or subsequent breach. Any waiver
must be in writing.
Section 8.8. Binding Effect; Benefits. This Agreement will
------------------------
inure to the benefit of and be binding upon the parties hereto and
their respective successors and assigns. Nothing in this Agreement,
express or implied, is intended to confer on any Person other than the
parties hereto and their respective successors and assigns any rights,
remedies, obligations or liabilities under or by reason of this
Agreement.
Section 8.9. Assignability. This Agreement is not assignable
-------------
by any party hereto without the prior written consent of the other
parties.
Section 8.10. Expenses. Each of the parties hereto shall pay
--------
all of its own expenses relating to the transactions contemplated by
this Agreement, including without limitation the fees and expenses of
its own financial, legal and tax advisors.
Section 8.11. Gender and Certain Definitions. All words used
------------------------------
herein, regardless of the number and gender specifically used, shall
be deemed and construed to include any other number, singular or
plural, and any other gender, masculine, feminine or neuter, as the
context requires.
<PAGE>
IN WITNESS WHEREOF, the parties hereto have duly executed this
Agreement as of the date first written above.
SEACOR HOLDINGS, INC.
By:/s/ Milton Rose
--------------------------------------------
Name: Milton Rose
Title: Vice-President
MCCALL ENTERPRISES, INC.
By:/s/ Milton Rose
--------------------------------------------
Name: Milton Rose
Title: President
/s/ Deanne Colligan and Madeline Colligan
--------------------------------------------
Deanne Colligan and Madeline Colligan,
Trustees of the HAM Trust created by
Norman F. McCall and Jacqueline C. McCall
by Act dated December 9, 1980 before
Gregory James Klumpp, notary.
/s/ Deanne Colligan and Madeline Colligan
------------------------------------
Deanne Colligan and Madeline Colligan,
Trustees of the PDM Trust created by
Norman F. McCall and Jacqueline C. McCall
by Act dated December 9, 1980 before
Gregory James Klumpp, notary.
/s/ Deanne Colligan and Madeline Colligan
------------------------------------
Deanne Colligan and Madeline Colligan,
Trustees of the JKM Trust created by
Norman F. McCall and Jacqueline C. McCall
by Act dated December 9, 1980 before
Gregory James Klumpp, notary.
<PAGE>
/s/ Gertrude Colligan
------------------------------------
Gertrude Colligan, Individually and
as Usufructuary
/s/ James A. Colligan
------------------------------------
James A. Colligan
/s/ Nell Colligan
------------------------------------
Nell Colligan
/s/ Madeline Colligan
------------------------------------
Madeline Colligan
/s/ Deanne Colligan
------------------------------------
Deanne Colligan
EXHIBIT 2.6
SHARE EXCHANGE AGREEMENT AND
PLAN OF REORGANIZATION
RELATING TO PHILIP A. MCCALL, INC.
by and among
SEACOR HOLDINGS, INC.,
MCCALL ENTERPRISES, INC.
and
THE PERSONS LISTED ON THE
SIGNATURE PAGE HEREOF
Dated as of May 31, 1996
<PAGE>
TABLE OF CONTENTS
Page
ARTICLE 1.
DEFINITIONS . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Section 1.1. Definitions . . . . . . . . . . . . . . . . . 2
ARTICLE 2.
THE CLOSING . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
Section 2.1. Closing . . . . . . . . . . . . . . . . . . . 9
ARTICLE 3.
EXCHANGE OF SHARES . . . . . . . . . . . . . . . . . . . . . . . 9
Section 3.1. Exchange of Company Shares . . . . . . . . . 9
Section 3.2. Exchange of SEACOR Shares . . . . . . . . . . 9
Section 3.3. Delivery of Company Shares; Transfer of
Exchanged Shares . . . . . . . . . . . . . 10
Section 3.4. Determination of Final Adjusted Net Assets . 10
Section 3.5. Registration Rights Agreement; Restrictive
Endorsement. . . . . . . . . . . . . . . . 11
ARTICLE 4.
REPRESENTATIONS AND WARRANTIES OF THE STOCKHOLDERS . . . . . . . 12
Section 4.1. Organization and Citizenship . . . . . . . . 12
Section 4.2. Affiliated Entities . . . . . . . . . . . . . 12
Section 4.3. Capitalization . . . . . . . . . . . . . . . 12
Section 4.4. Authority; Enforceable Agreement . . . . . . 13
Section 4.5. No Conflicts or Consents . . . . . . . . . . 13
Section 4.6. Corporate Documents . . . . . . . . . . . . . 14
Section 4.7. Financial Statements; Liabilities . . . . . . 14
Section 4.8. Accounts Receivable . . . . . . . . . . . . . 14
Section 4.9. Absence of Certain Changes or Events . . . . 15
Section 4.10. Contracts . . . . . . . . . . . . . . . . . . 17
Section 4.11. Properties and Leases other than Vessels . . 17
Section 4.12. Condition of the Company's Assets Other than
Vessels. . . . . . . . . . . . . . . . . . 19
Section 4.13. Vessels . . . . . . . . . . . . . . . . . . . 19
Section 4.14. Accounting Matters . . . . . . . . . . . . . 20
Section 4.15. Suppliers and Customers . . . . . . . . . . . 20
<PAGE>
Page
Section 4.16. Employee . . . . . . . . . . . . . . . . . . 20
Section 4.17. Employee Benefit Plans . . . . . . . . . . . 21
Section 4.18. Tax Matters . . . . . . . . . . . . . . . . . 24
Section 4.19. Litigation . . . . . . . . . . . . . . . . . 26
Section 4.20. Insurance . . . . . . . . . . . . . . . . . . 26
Section 4.21. Environmental Compliance . . . . . . . . . . 27
Section 4.22. Compliance With Law; Permits . . . . . . . . 28
Section 4.23. Interests in Clients, Suppliers, Etc. . . . . 29
Section 4.24. Transactions With Related Parties . . . . . . 29
Section 4.25. Broker's and Finder's Fee . . . . . . . . . . 29
Section 4.26. Disclosure . . . . . . . . . . . . . . . . . 29
Section 4.27. Intellectual Property . . . . . . . . . . . . 30
ARTICLE 5.
REPRESENTATIONS AND WARRANTIES OF MCCALL AND SEACOR . . . . . . . 30
Section 5.1. Organization and Citizenship . . . . . . . . 30
Section 5.2. Capitalization . . . . . . . . . . . . . . . 31
Section 5.3. Authority; Enforceable Agreements . . . . . . 31
Section 5.4. No Conflicts or Consents . . . . . . . . . . 32
Section 5.5. Corporate Documents . . . . . . . . . . . . . 32
Section 5.6. SEC Documents; Financial Statements;
Liabilities . . . . . . . . . . . . . . . 32
Section 5.7. Absence of Certain Changes or Events . . . . 33
Section 5.8. Contracts . . . . . . . . . . . . . . . . . . 34
Section 5.9. Litigation . . . . . . . . . . . . . . . . . 34
Section 5.10. Legality of SEACOR Common Stock . . . . . . . 35
Section 5.11. Broker's and Finder's Fee . . . . . . . . . . 35
ARTICLE 6.
CLOSING CONDITION . . . . . . . . . . . . . . . . . . . . . . . . 35
Section 6.1. Conditions Applicable to All Parties . . . . 35
Section 6.2. Conditions to McCall's Obligations . . . . . 35
Section 6.3. Conditions to Stockholders' Obligations . . . 37
ARTICLE 7.
TERMINATION . . . . . . . . . . . . . . . . . . . . . . . . . . . 38
Section 7.1. Termination . . . . . . . . . . . . . . . . . 38
Section 7.2. Effect of Termination . . . . . . . . . . . . 39
ARTICLE 8.
MISCELLANEOUS . . . . . . . . . . . . . . . . . . . . . . . . . . 39
<PAGE>
Page
Section 8.1. Notices . . . . . . . . . . . . . . . . . . . 39
Section 8.2. Governing Law . . . . . . . . . . . . . . . . 40
Section 8.3. Counterparts . . . . . . . . . . . . . . . . 40
Section 8.4. Interpretation . . . . . . . . . . . . . . . 40
Section 8.5. Entire Agreement; Severability . . . . . . . 41
Section 8.6. Amendment and Modification . . . . . . . . . 41
Section 8.7. Extension; Waiver . . . . . . . . . . . . . . 41
Section 8.8. Binding Effect; Benefits . . . . . . . . . . 41
Section 8.9. Assignability . . . . . . . . . . . . . . . . 41
Section 8.10. Expenses . . . . . . . . . . . . . . . . . . 42
Section 8.11. Gender and Certain Definitions . . . . . . . 42
<PAGE>
EXHIBITS AND SCHEDULES
EXHIBITS
Exhibit A . . . . . . . . Vessels
Exhibit B . . . . . . . . Investment and Registration Rights
Agreement
Exhibit C . . . . . . . . Indemnification Agreement
Exhibit D . . . . . . . . Escrow Agreement
Exhibit E . . . . . . . . Opinion of SEACOR's and McCall's Counsel
SCHEDULES(1)
Schedule 4.5(a) . . . . . Certain Conflicts
Schedule 4.5(b) . . . . . Consents/Approval Required
Schedule 4.7 . . . . . . Disclosed Liabilities
Schedule 4.8 . . . . . . Accounts Receivable
Schedule 4.9 . . . . . . Certain Changes
Schedule 4.10(a) . . . . Certain Contracts
Schedule 4.10(b) . . . . Material Contracts
Schedule 4.11(a) . . . . Encumbrances on Property
Schedule 4.11(c) . . . . Above Market Rate Leases
Schedule 4.11(d) . . . . Real Property and Leases
Schedule 4.13(a) . . . . Vessels and Liens on Vessels
Schedule 4.13(b) . . . . Leased Vessels
Schedule 4.13(c) . . . . Certain Defects with Vessels
Schedule 4.15 . . . . . . Suppliers and Customers
Schedule 4.16(a) . . . . Certain Employees
Schedule 4.17(a) . . . . Employee Plans
Schedule 4.17(b) . . . . Employee Benefit Arrangements
Schedule 4.17(c) . . . . Modifications to Employee Benefit Plans
and Arrangements
Schedule 4.17(e) . . . . Compliance with Employee Plans
Schedule 4.17(j) . . . . Litigation Re Employee Plan or Benefit
Arrangements
Schedule 4.17(k) . . . . Certain Employees with Rights to Certain
Entitlements
___________________
(1) All the above Schedules relate to the Company unless
otherwise indicated.
<PAGE>
Schedule 4.17(l) . . . . Benefits to Non-employee Stockholders
and Directors
Schedule 4.18(d) . . . . Material Tax Elections
Schedule 4.18(f) . . . . Returns Filed in State and Foreign
Jurisdictions
Schedule 4.19 . . . . . . Litigation
Schedule 4.20(a) . . . . Insurance Policies
Schedule 4.20(b) . . . . Protection or Indemnity Clubs
Schedule 4.21(a) . . . . Noncompliance with Environmental Laws
Schedule 4.21(b) . . . . Environmental Administrative or Judicial
Proceedings
Schedule 4.21(c) . . . . Above Ground and Underground Tanks
Schedule 4.21(d) . . . . Hazardous Materials
Schedule 4.23 . . . . . . Officers'/Directors' Relationships with
Competitors of the Company
Schedule 4.24(a) . . . . Interested Officers'/Directors'
Transactions
Schedule 4.24(b) . . . . Claims of Certain Officers and Directors
Schedule 4.27 . . . . . . Intellectual Property
Schedule 5.8 . . . . . . Material Contracts of SEACOR
Schedule 5.9 . . . . . . Litigation Involving SEACOR
Schedule 6.3(d) . . . . . Disposed of/Sold Vessels
Schedule 6.3(e) . . . . . Indebtedness
Schedule 6.3(f) . . . . . New Capital Expenditures
NYFS11...:\93\73293\0011\1196\EDG6046M.380
<PAGE>
SHARE EXCHANGE AGREEMENT
-------------------------
AND
---
PLAN OF REORGANIZATION
-----------------------
RELATING TO PHILIP A. MCCALL, INC.
-----------------------------------
SHARE EXCHANGE AGREEMENT AND PLAN OF REORGANIZATION, dated as of
May 31, 1996, among SEACOR Holdings, Inc., a Delaware corporation
("SEACOR"), McCall Enterprises, Inc., a Louisiana corporation
("McCall"), and the person listed on the signature page hereto (the
"Stockholders").
W I T N E S S E T H:
-------------------
WHEREAS, McCall is the owner of 75 shares of common stock, par
value $10.00 per share, of Cameron Boat Rentals, Inc. (the "Company";
shares of such common stock of the Company being referred to herein as
"Company Shares"); and
WHEREAS, Stockholders are the owner, in the aggregate, of 25
Company Shares which, together with the Company Shares owned by
McCall, constitute all of the issued and outstanding shares of capital
stock of the Company; and
WHEREAS, SEACOR, SEACOR Enterprises, Inc., a Louisiana
corporation and a direct wholly owned subsidiary of SEACOR ("SEACOR
Enterprises"), and McCall are parties to an Agreement and Plan of
Merger of even date herewith (the "Merger Agreement") pursuant to
which SEACOR Enterprises has on this date been merged with and into
McCall (the "Merger") and, as a result thereof, McCall has become a
direct wholly owned subsidiary of SEACOR; and
WHEREAS, upon the terms and subject to the conditions set forth
herein, Stockholders desire to transfer and assign to McCall, and
McCall desires to acquire from Stockholders, the Company Shares owned
by Stockholders in exchange for SEACOR Shares (as defined in Section
3.2(a)) (the "Acquisition"), which SEACOR Shares constitute the
consideration transferred by McCall to Stockholders as consideration
in respect of the Acquisition; and
WHEREAS, Stockholders, McCall and SEACOR intend that McCall
acquire the Company Shares owned by Stockholders in exchange for
SEACOR Shares in a transaction qualifying as reorganization under
Section 368(a)(1)(B) of the Internal Revenue Code of 1986, as amended
(the "Code");
<PAGE>
NOW, THEREFORE, in consideration of the representations,
warranties and covenants contained herein, the parties agree as
follows:
ARTICLE 1.
DEFINITIONS
Section 1.1. Definitions. As used in this Agreement, the
-----------
following terms when capitalized have the meanings indicated:
"Acquisition" shall have the meaning ascribed to such term in the
premises to this Agreement.
"Adjusted Net Assets" shall mean an amount equal to the assets,
other than Vessel Assets, of the Company (including, but not limited
to, cash and cash equivalents, marketable securities, deposits,
accounts receivable and prepaid expenses) determined in accordance
with GAAP (except as provided in the provisos to this definition)
reduced by the following: (i) the book value of all personal property
(including, without limitation, vehicles, office equipment and
furniture) and improvements; (ii) appropriate reserves under GAAP;
(iii) investments in any of the Companies or SEAMAC LLC; and (iv) all
liabilities (including notes payable to current stockholders) as
determined in accordance with GAAP other than deferred taxes related
to Vessel Assets; provided, however, that (a) Adjusted Net Assets
-------- -------
shall be increased by the expenses of any drydockings of Company
Vessels incurred by the Company between the date hereof and the
Closing (but not the expenses of moving the vessels to the dock) and
(b) Adjusted Net Assets shall be calculated on the assumption that if
the Company currently accounts on a cash basis, it converted to
accounting on an accrual basis (and any Tax liability currently
payable as a result of such conversion shall be taken into account)
and, provided further, in the event that, prior to the Closing, any of
-------- -------
the Company Vessels is sold or is subject to a total loss or
constructive total loss, the amount of Adjusted Net Assets shall be
(1) increased by the amount, if any, by which the proceeds from such
sale or the proceeds (including any amount recoverable from insurance
or other sources) from such loss (the "Disposition Proceeds") exceed
the value for such vessel set forth on Exhibit A hereto, and (2)
decreased by the amount, if any, by which the value for such vessel
set forth on Exhibit A hereto exceeds the Disposition Proceeds.
"Affiliate" shall have the meaning ascribed to such term by Rule
12b-2 promulgated under the Exchange Act.
"Agreement" shall mean this Share Exchange Agreement and Plan of
Reorganization, including the Schedules and Exhibits hereto, all as
amended or otherwise modified from time to time.
"Arbitrator" shall have the meaning ascribed to such term in
Section 3.4(b).
<PAGE>
"Average Market Price" shall mean $35.142, which represents the
average of the daily closing sale price per share of SEACOR Common
Stock on the NASDAQ Stock Market for the 60 consecutive calendar days
that ended on April 16, 1996, the second trading day prior to the date
of signing of a letter of intent with respect to the transactions
contemplated hereby.
"Benefit Arrangement" means any employment, severance or similar
contract, or any other contract, plan, policy or arrangement (whether
or not written) providing for compensation, bonus, profit-sharing,
stock option or other stock related rights or other forms of incentive
or deferred compensation, vacation benefits, insurance coverage
(including any self-insured arrangement), health or medical benefits,
disability benefits, severance benefits and post-employment or
retirement benefits (including compensation, pension, health, medical
or life insurance benefits), other than the Employee Plans, that (A)
is maintained, administered or contributed to by the employer or the
employer has any obligation or liability (contingent or otherwise) and
(B) covers any employee or former employee or director of the
employer.
"Business Day" shall mean a day other than a Saturday, a Sunday
or a day on which national banks or the NASDAQ Stock Market is closed.
"Closing" shall have the meaning ascribed to such term in Section
2.1.
"Closing Balance Sheet" shall have the meaning ascribed to such
term in Section 3.4(a).
"Closing Date" shall have the meaning ascribed to such term in
Section 2.1.
"Code" shall have the meaning ascribed to such term in the
premises to this Agreement.
"Companies" shall mean McCall Enterprises, Inc., McCall's Boat
Rentals, Inc., Gulf Marine Transportation, Inc., Carroll McCall, Inc.,
McCall Marine Services, Inc., Cameron Boat Rentals, Inc., Gladys
McCall, Inc., Cameron Crews, Inc., Philip A. McCall, Inc., N.F. McCall
Crews, Inc., McCall Crewboats, L.L.C. and McCall Support Vessels, Inc.
"Company Shares" shall have the meaning ascribed to such term in
the premises to this Agreement.
"Company Vessels" shall have the meaning ascribed to such term in
Section 4.13(a).
"Contract" means any contract, charter, agreement, lease,
indenture, note, bond, instrument, lien, conditional sales contract,
mortgage, license, franchise, insurance policy, commitment or other
binding understanding or arrangement, whether written or oral.
<PAGE>
"Employee Plan" means an employee benefit plan or arrangement as
defined in Section 3(3) of ERISA, that is maintained, administered or
contributed to by the employer or the employer has any obligation or
liability (contingent or otherwise) and covers any employee or former
employee of the employer.
"Environmental Laws" means all federal, state, local and foreign
laws, common law duties, ordinances, codes, regulations and other
legally binding obligations relating to pollution, the protection of
the environment, human health and safety or natural resources,
including, without limitation, all such laws governing the operation
of business, each Company Vessel, the generation, use, collection,
treatment, storage, transportation, recovery, removal, discharge or
disposal of Hazardous Substances or wastes and all such laws imposing
record-keeping, maintenance, testing, inspection, notification and
reporting requirements with respect to Hazardous Substances.
"Environmental Permits" shall have the meaning ascribed to such
term in Section 4.21(a).
"ERISA" means the Employee Retirement Income Security Act of
1974, as amended, and the applicable regulations promulgated
thereunder.
"Escrow Agreement" shall have the meaning ascribed to such term
in Section 6.2(g).
"Estimated Adjusted Net Assets" shall mean $250,323.
"Exchange Act" shall mean the Securities Exchange Act of 1934, as
amended.
"Final Adjusted Net Assets" shall have the meaning ascribed to
such term in Section 3.4(b).
"Fractional Payment" shall have the meaning ascribed to such term
in Section 3.2(b).
"GAAP" shall mean generally accepted accounting principles in the
United States of America as in effect from time to time set forth in
the opinions and pronouncements of the Accounting Principles Board and
the American Institute of Certified Public Accountants and the
statements and pronouncements of the Financial Accounting Standards
Board, or in such other statements by such other entity as may be in
general use by significant segments of the accounting profession,
which are applicable to the circumstances as of the date of
determination.
"Hazardous Substances" means any and all wastes, materials or
substances defined, regulated or classified as "hazardous substances,"
"hazardous wastes," "hazardous constituents" or words of similar
meaning in (i) the Comprehensive Environmental Response, Compensation
and Liability Act of 1980, 42 U.S.C. Sections 9601 et seq., as amended by
-- ---
the Superfund Amendments and Reauthorization Act of 1986, and any
amendments thereto and
<PAGE>
regulations thereunder; (ii) the Resource Conservation and Recovery
Act of 1976, 42 U.S.C. Sections 6901 et seq., as amended by the Hazardous
-- ---
and Solid Waste Amendments of 1984, and any amendments thereto and
regulations thereunder; (iii) the Oil Pollution Act of 1990, 33 U.S.C.
Sections 2701 et seq., and any amendments thereto and regulations
-- ---
thereunder; or (iv) any other Environmental Law.
"HSR Act" shall mean the Hart-Scott-Rodino Antitrust Improvements
Act of 1976, as amended.
"Indemnification Agreement" shall have the meaning ascribed to
such term in Section 6.2(g).
"Intellectual Property Right" means any trademark, service mark,
trade name, patent, trade secret, copyright, know-how or other type of
intellectual property right (including any registrations or
applications for registration of any of the foregoing).
"Investment and Registration Rights Agreement" shall have the
meaning ascribed to such term in Section 3.5(a).
"IRS" shall have the meaning ascribed to such term in Section
4.17(a).
"Knowledge of SEACOR" shall mean the actual knowledge of Charles
Fabrikant, Randall Blank or Milton R. Rose (all being executive
officers of SEACOR) without any obligation to conduct any inquiry
outside the ordinary course of business.
"Knowledge of Stockholders" shall mean the actual knowledge of
Norman F. McCall, Joyce C. McCall, William Johnston or Stephanie
Richard without any obligation to conduct any inquiry outside the
ordinary course of business.
"LBCL" shall mean the Business Corporation Law of the State of
Louisiana, as amended.
"Liens" shall mean pledges, liens, encumbrances, rights in rem,
defects, leases, licenses, equities, conditional sales contracts,
charges, claims, encumbrances, security interests, easements,
restrictions, chattel mortgages, mortgages or deeds of trust, of any
kind or nature whatsoever.
"Material Adverse Effect" shall mean, with respect to any party,
a material adverse effect on the financial condition, results of
operations, business or prospects of such party.
"Material Contract" shall have the meaning ascribed to such term
in Section 5.8.
"McCall Audited Financial Statements" shall mean the audited
combined balance sheet and related combined statements of income,
stockholders' equity and cash flows, and
<PAGE>
the related notes thereto, of the Companies as of and for the years
ended December 31, 1994 and 1995.
"McCall Financial Statements" shall mean the McCall Audited
Financial Statements and the McCall Interim Financial Statements,
collectively.
"McCall Interim Financial Statements" shall mean the unaudited
combined balance sheet, and the related unaudited combined statements
of income and cash flows, of the Companies as of and for the three-
month period ended March 31, 1996.
"McCall Latest Balance Sheet" shall mean the combined balance
sheet of the Companies included in the McCall Interim Financial
Statements.
"Merger" shall have the meaning ascribed to such term in the
premises to this Agreement.
"Merger Agreement" shall have the meaning ascribed to such term
in the premises to this Agreement.
"Multiemployer Plan" means a plan or arrangement as defined in
Section 4001(a)(3) and 3(37) of ERISA.
"Permitted Liens" shall mean any mechanic's, worker's,
materialmen's, maritime or other liens arising as a matter of law in
the ordinary course of business consistent with past practice.
"Person" shall mean an individual, firm, corporation, general or
limited partnership, limited liability company, limited liability
partnership, joint venture, trust, governmental authority or body,
association, unincorporated organization or other entity.
"Pre-Closing Periods" shall mean all tax periods ending at or
before the Closing Date and, with respect to any tax period that
includes but does not end at the Closing Date, the portion of such
period that ends at and includes the Closing Date.
"Registration Statement" shall mean the registration statement on
Form S-3 to be filed by SEACOR with the SEC for the purpose, among
other things, of registering the SEACOR Shares which will be issued to
the Stockholders following consummation of the transactions
contemplated thereby.
"Returns" shall mean all returns, reports, estimates,
declarations, information return, statement or other similar documents
relating to Taxes, including any schedule or attachment thereto, and
including any amendment thereof.
<PAGE>
"SEACOR Affiliated Group" shall mean SEACOR and its subsidiaries
other than the Companies.
"SEACOR Audited Financial Statements" shall mean the audited
consolidated balance sheets, and the related consolidated statements
of earnings, stockholders' equity and cash flows, and the related
notes thereto, of SEACOR and its subsidiaries as of and for the years
ended December 31, 1994 and 1995.
"SEACOR Common Stock" shall mean shares of common stock, $.01 par
value per share, of SEACOR.
"SEACOR Financial Statements" shall mean the SEACOR Audited
Financial Statements and the SEACOR Interim Financial Statements.
"SEACOR Interim Financial Statements" shall mean the unaudited
consolidated balance sheet, and the related consolidated unaudited
statements of earnings and cash flows, of SEACOR and its subsidiaries
as of and for the three month period ended March 31, 1996.
"SEACOR Latest Balance Sheet" shall mean the consolidated balance
sheet included in the SEACOR Interim Financial Statements.
"SEACOR SEC Documents" shall have the meaning ascribed to such
term in Section 5.6(a).
"SEACOR Shares" shall have the meaning ascribed to such term in
Section 3.2(a).
"SEC" shall mean the Securities and Exchange Commission of the
United States.
"Securities Act" shall mean the Securities Act of 1933, as
amended.
"Taxes" means all taxes, charges, fees, imposts, levies or other
assessments, including, without limitation, all net income, gross
receipts, sales, use, ad valorem, value added, transfer, franchise,
profits, inventory, capital stock, license, withholding, payroll,
employment, social security, unemployment, excise, severance, stamp,
occupation, property taxes, customs duties, fees, assessments and
charges of any kind whatsoever, together with any interest and any
penalties, additions to tax or additional amounts imposed by any
taxing authority (domestic or foreign) and any interest or penalties
imposed with respect to the filing, obligation to file or failure to
file any Return, and shall include any transferee liability in respect
of Taxes.
"Termination Date" shall have the meaning ascribed to such term
in Section 7.1(c).
"Undisclosed Liabilities" shall have the meaning ascribed to such
term in Section 4.7.
<PAGE>
"Vessel Assets" shall mean (i) the 8 vessels listed on Exhibit A
hereto, all spare parts, stores and supplies, fuel and lubes (whether
onboard or ashore), and all investments by the Company in the
Companies, (ii) the proceeds of the sale of any such vessel sold by
the Company between the date hereof and the Closing Date and (iii) the
proceeds (including any amount recoverable from insurance or other
sources) from total loss, nontotal loss or constructive loss of any
such vessel between the date hereof and the Closing Date.
ARTICLE 2.
THE CLOSING
Section 2.1. Closing. The closing of the transactions
-------
contemplated herein (the "Closing") will take place, assuming
satisfaction or waiver of each of the conditions set forth in
Article 6 hereof, at the offices of Stockwell, Sievert, Viccellio,
Clements & Shaddock at 1 Lakeside Plaza, 4th Floor, Lake Charles,
Louisiana, at 10:00 A.M. (Louisiana Time) on a date to be mutually
agreed upon between the parties, which shall be no later than the
third Business Day after satisfaction of the latest to occur of the
conditions set forth in Article 6 (or waiver thereof by the party
entitled to waive the same), or if no date has been agreed to, on any
date specified by one party to the others upon five days' notice
following satisfaction (or waiver) of such conditions (the date of the
Closing being referred to herein as the "Closing Date"). At the
Closing, the parties shall deliver the documents, certificates and
opinions required to be delivered by Article 6 hereof and provide
proof or indication of the satisfaction or waiver of each of the
conditions set forth in Article 6 hereof.
ARTICLE 3.
EXCHANGE OF SHARES
Section 3.1. Exchange of Company Shares. Upon the terms and
--------------------------
subject to the conditions set forth in this Agreement, the
Stockholders hereby agree to assign and transfer to McCall, and McCall
hereby agrees to acquire from the Stockholders, on the Closing Date,
the Company Shares owned by the Stockholders.
Section 3.2. Exchange of SEACOR Shares. (a) Upon the terms and
-------------------------
subject to the conditions set forth in this Agreement, McCall agrees
to deliver, and SEACOR agrees to cause McCall to deliver, to the
Stockholders in exchange for each Company Share owned by the
Stockholders, such number of fully paid and nonassessable shares of
SEACOR Common Stock ("SEACOR Shares") as shall be equal to the
quotient obtained by dividing (A) the Total Exchanged Shares (as
hereinafter defined) by (B) 25, which is represented by the
--
Stockholders to be the number of Company Shares owned by the
Stockholders on the date hereof (the "Exchanged Shares"). For
purposes hereof, the "Total Exchanged Shares" shall mean a number of
shares of SEACOR Common Stock equal to the quotient obtained by
dividing (1) the sum of $1,101,573 plus 25% of the amount, if any, by
which the Final Adjusted Net Assets exceeds the Estimated Adjusted Net
Assets or less 25% of the amount, if any, by which the Estimated
Adjusted Net Assets exceeds the Final Adjusted Net Assets, by (2) the
--
Average Market Price.
<PAGE>
(b) In lieu of the issuance of fractional shares of SEACOR
Common Stock, the Stockholders shall be entitled to receive a cash
payment (without interest) (each a "Fractional Payment" and,
collectively, the "Fractional Payments") equal to the fair market
value of a fraction of a share of SEACOR Common Stock to which the
Stockholders would be entitled to but for this provision. For purposes
of calculating such cash payment, the fair market value of a fraction
of a share of SEACOR Common Stock shall be such fraction multiplied by
the Average Market Price.
Section 3.3. Delivery of Company Shares; Transfer of Exchanged
-------------------------------------------------
Shares. On the Closing Date, the Stockholders shall deliver to McCall
------
certificates representing 25 Company Shares, duly endorsed in blank or
accompanied by stock transfer powers duly executed in blank and with
all requisite stock transfer tax stamps attached. As soon as
practicable after the determination of Final Adjusted Net Assets,
McCall shall deliver the SEACOR Shares and the Fractional Payments
required under this Agreement to the Stockholders.
Section 3.4. Determination of Final Adjusted Net Assets. (a)
------------------------------------------
Within 60 days after the Closing Date, McCall shall prepare in
accordance with GAAP and deliver to the Stockholders, a closing date
balance sheet for the Company as of the Closing Date (the "Closing
Balance Sheet"), which shall be accompanied by a computation of the
Adjusted Net Assets based thereon.
(b) The Stockholders shall have a period of 15 days to
review the Closing Balance Sheet and the accompanying calculation of
the Adjusted Net Assets following delivery thereof by McCall. During
such period, McCall shall afford the Stockholders access to any of its
books, records and work papers necessary to enable the Stockholders to
review the Closing Balance Sheet and the accompanying calculation of
the Adjusted Net Assets. The Stockholders may dispute any amounts
reflected in the Adjusted Net Assets by giving notice in writing to
McCall specifying each of the disputed items and setting forth in
reasonable detail the basis for such dispute. Failure by the
Stockholders to dispute the amounts reflected in the Adjusted Net
Assets within 15 days of delivery of the Closing Balance Sheet by
McCall shall be deemed an acceptance thereof by the Stockholders. If,
within 30 days after delivery by the Stockholders to McCall of any
notice of dispute in accordance with this Section 3.4(b), the
Stockholders and McCall are unable to resolve all of such disputed
items, then any remaining items in dispute shall be submitted to an
independent nationally recognized accounting firm selected in writing
by McCall and the Stockholders or, if McCall and the Stockholders fail
or refuse to select such a firm within ten Business Days after request
therefor by McCall or the Stockholders, such an independent nationally
recognized accounting firm shall be selected in accordance with the
rules of the American Arbitration Association (the "Arbitrator"). The
Arbitrator shall determine the remaining disputed items and report to
McCall and the Stockholders with respect to such items. The
Arbitrator's decision shall be final, conclusive and binding on all
parties. The fees and disbursements of the Arbitrator shall be borne
equally by the Stockholders and McCall. The Adjusted Net Assets if
undisputed or deemed undisputed or as determined by the mutual
<PAGE>
agreement of McCall and the Stockholders or by the Arbitrator in
accordance with the procedure outlined above shall be the "Final
Adjusted Net Assets."
Section 3.5. Registration Rights Agreement; Restrictive
------------------------------------------
Endorsement. (a) The issuance of the SEACOR Shares to the
-----------
Stockholders pursuant to this Agreement will not be registered under
the Securities Act, or any state securities laws, in reliance upon
certain exemptions from registration contained therein and, therefore,
will be subject to restrictions on transfer. Pursuant to the terms
and conditions of the Investment and Registration Rights Agreement, in
substantially the form attached hereto as Exhibit B (the "Investment
and Registration Rights Agreement"), the Stockholders shall have
certain rights to require the registration of the resale by the
Stockholders of their SEACOR Shares. The Stockholders are the record
and beneficial owner of 25 Company Shares.
(b) Each certificate representing of SEACOR Shares to be
issued to the Stockholders pursuant to this Agreement shall be stamped
with a legend in substantially the following form:
"The Shares represented by this certificate have not been
registered under the Securities Act of 1933, as amended, or any
state securities law, and may not be transferred, sold or
otherwise disposed of in the absence of such registration or an
exemption therefrom. Such Shares may be transferred only in
compliance with the conditions specified in the Investment and
Registration Rights Agreement, dated as of May 31, 1996, between
the Issuer and the other entities and individuals party thereto,
a complete and correct copy of which is available for inspection
at the principal office of the Issuer and will be furnished to
the Holder hereof upon written request and without charge."
ARTICLE 4.
REPRESENTATIONS AND WARRANTIES OF THE STOCKHOLDERS
Stockholders represent and warrants to SEACOR and McCall as
follows:
Section 4.1.Organization and Citizenship. (a) The Company is a
----------------------------
corporation duly organized, validly existing and in good standing
under the laws of the state of its incorporation and has all corporate
power and authority to carry on its business as now being conducted
and to own, lease and operate its properties. The Company is duly
qualified to do business and is in good standing in each state and
foreign jurisdiction in which the character or location of the
properties owned or leased by it or the nature of the business
conducted by it makes such qualification necessary, except where the
failure to be so qualified or in good standing would not have a
Material Adverse Effect on the Company.
(b) The Company and its stockholders are and at all times
have been citizens of the United States within the meaning of Section
2 of the Shipping Act, 1916, as
<PAGE>
amended, for the purposes of owning and operating vessels in the U.S.
coastwise trade. The Stockholders are not a "foreign person" within
the meaning of Section 1445 of the Code.
Section 4.2. Affiliated Entities. The Company does not,
-------------------
directly or indirectly, own of record or beneficially, or have the
right or obligation to acquire, any outstanding securities or other
interest in any Person.
Section 4.3. Capitalization. The authorized capital stock of
--------------
the Company consists exclusively of 100 shares of common stock, $10.00
par value per share, of which 100 shares were issued and outstanding
as of the date hereof. All issued and outstanding shares of capital
stock of the Company are validly issued, fully paid, non-assessable
and were not issued in violation of preemptive or similar rights. The
Stockholders are the record and beneficial owner of 25 Company Shares,
which Company Shares, together with the Company Shares owned by
McCall, represent all of the issued and outstanding shares of capital
stock of the Company. There is no existing subscription, option,
warrant, call, right, commitment or other agreement to which the
Company is a party requiring, and there are no derivative securities
of the Company outstanding which upon conversion, exercise or exchange
would require, directly or indirectly, the issuance of any additional
shares of the Company's capital stock or other securities convertible,
exchangeable or exercisable into or for shares of the Company's
capital stock or any other equity security of the Company, and there
are no outstanding contractual obligations of the Company to
repurchase, redeem or otherwise acquire any outstanding share of the
Company's capital stock.
Section 4.4. Authority; Enforceable Agreement. The
--------------------------------
Stockholders have the requisite power and authority to enter into this
Agreement and to consummate the transactions contemplated hereby.
This Agreement has been duly executed and delivered by the
Stockholders and (assuming due execution and delivery by the other
parties hereto) constitutes a valid and binding obligation of the
Stockholders, enforceable against the Stockholders in accordance with
its terms, except as such enforceability may be limited by bankruptcy,
insolvency, reorganization or similar laws affecting creditors' rights
generally. The other agreements entered, or to be entered, into by
the Stockholders in connection with this Agreement have been, or will
be, duly executed and delivered by the Stockholders and (assuming due
execution and delivery by the other parties thereto) constitute, or
will constitute, valid and binding obligations of the Stockholders,
enforceable against the Stockholders in accordance with their terms,
except as such enforceability may be limited by bankruptcy,
insolvency, reorganization or similar laws affecting creditors' rights
generally.
Section 4.5. No Conflicts or Consents. (a) Except as set
------------------------
forth on Schedule 4.5(a), neither the execution, delivery nor
performance of this Agreement by the Stockholders nor the consummation
of the transactions contemplated hereby will (i) violate, conflict
with, or result in a breach of any provision of, constitute a default
(or an event that, with notice or lapse of time or both, would
constitute a default) under, result in the termination of, or
accelerate the performance required by, or result in the creation of
any adverse claim against any of the properties or assets of the
Company under (A) the certificate of incorporation, by-
<PAGE>
laws or any other organizational documents of the Company, or (B) any
note, bond, mortgage, indenture, deed of trust, lease, license,
agreement or other instrument or obligation to which the Company is a
party, or by which the Company or any of its assets are bound, or
(ii) violate any order, writ, injunction, decree, judgment, statute,
rule or regulation of any governmental body to which the Company is
subject or by which the Company or any of its assets are bound.
(b) Except as set forth on Schedule 4.5(b), no consent,
approval, order, permit or authorization of, or registration,
declaration or filing with, any Person or of any government or any
agency or political subdivision thereof is required for the execution,
delivery and performance by the Stockholders of this Agreement and the
covenants and transactions contemplated hereby or for the execution,
delivery and performance by the Stockholders of any other agreements
entered, or to be entered, into by the Stockholders in connection with
this Agreement.
Section 4.6. Corporate Documents. The Stockholders have
-------------------
delivered to McCall true and complete copies of the Company's
certificate of incorporation and by-laws, as amended or restated
through the date of this Agreement. The minute books of the Company
contain complete and accurate records of all corporate actions of the
equity owners of the various entities and of the boards of directors
or other governing bodies, including committees of such boards or
governing bodies. The stock transfer records of the Company contain
complete and accurate records of all issuances and redemptions of
capital stock by the Company.
Section 4.7. Financial Statements; Liabilities. The McCall
---------------------------------
Financial Statements, to the extent that they include information with
respect to the Company, have been prepared in accordance with GAAP
applied on a basis consistent with prior periods and present fairly
the financial position of the Company as at the dates of the balance
sheet included therein and the results of operations and cash flows
for the periods then ended, except, in the case of the McCall Interim
Financial Statements, as permitted by Rule 10-01 of Regulation S-X of
the SEC. The McCall Interim Financial Statements reflect all
adjustments (consisting only of normal, recurring adjustments) that
are necessary for a fair statement of the results of operations of the
members of the Company for the interim periods presented therein.
Except as set forth on Schedule 4.7, the Company does not have, nor
are any of its respective assets subject to, any liability,
commitment, debt or obligation (of any kind whatsoever whether
absolute or contingent, accrued, fixed, known, unknown, matured or
unmatured) ("Undisclosed Liabilities"), except (i) as and to the
extent reflected on the McCall Latest Balance Sheet, (ii) as may have
been incurred or may have arisen since the date of the McCall Latest
Balance Sheet in the ordinary course of business and that are not
material individually or in the aggregate or (iii) as permitted by
this Agreement.
Section 4.8. Accounts Receivable. All of the accounts
-------------------
receivable reflected on the McCall Latest Balance Sheet or created
thereafter, which relate to the Company have arisen only from bona
fide transactions in the ordinary course of business, represent valid
<PAGE>
obligations owing to the Company and have been accrued and recorded in
accordance with GAAP. Except as set forth on Schedule 4.8, such
accounts receivable either have been collected in full or will be
collectible in full when due, without any counterclaims, set-offs or
other defenses and without provision for any allowance for
uncollectible accounts other than such allowance as appears on the
McCall Latest Balance Sheet.
Section 4.9. Absence of Certain Changes or Events. Except as
------------------------------------
set forth on Schedule 4.9 or as contemplated by this Agreement, since
the date of the McCall Latest Balance Sheet, the Company has conducted
its business only in the ordinary course, and has not:
(a) amended its certificate of incorporation, by-laws or
similar organizational documents;
(b) incurred any liability or obligation of any nature
(whether absolute or contingent, accrued, fixed, known, unknown,
matured or unmatured), except in the ordinary course of business;
(c) suffered or permitted any of its assets to be or remain
subject to any lien other than those disclosed on Schedule 4.11(a) or
4.13(a) and that collateralize indebtedness reflected on the McCall
Latest Balance Sheet and Liens for Taxes accrued but not yet payable
and Permitted Liens;
(d) merged or consolidated with another Person or acquired
or agreed to acquire any Person or sold, leased, transferred or
otherwise disposed of any assets except for fair value in the ordinary
course of business; provided that no Company Vessels shall have been
disposed of without the consent of SEACOR (which consent shall not be
unreasonably withheld);
(e) made any capital expenditure or commitment therefor,
except in the ordinary course of business, provided that any
acquisitions of vessels (except those under construction and referred
to in the definition of Adjusted Net Assets), or acquisitions of, or
improvements to, real property, shall not be considered to be in the
ordinary course of business;
(f) declared or paid any dividend or made any distribution
with respect to any of its equity interests, or redeemed, purchased or
otherwise acquired any of its equity interests, or issued, sold or
granted any equity interests or any option, warrant or other right to
purchase or acquire any such interest;
(g) adopted any employee benefit plan or made any change in
any existing employee benefit plans or made any bonus or profit
sharing distribution or payment of any kind;
<PAGE>
(h) increased indebtedness for borrowed money, or made any
loan to any Person, other than through the issuance of standby or
performance letters of credit issued in the ordinary course of
business;
(i) made any change affecting any banking, safe deposit or
power of attorney arrangements;
(j) written off as uncollectible any notes or accounts
receivable, except for notes or accounts receivable in the ordinary
course of business charged to applicable allowances reflected in the
McCall Latest Balance Sheet, and none of which individually or in the
aggregate is material to the Company;
(k) entered into or amended any employment, severance or
similar agreement or arrangement with any director or employee, or
granted any increase in the rate of wages, salaries, bonuses, employee
advances or other compensation or benefits of any executive officer or
other employee, other than any such increase that is both in the
ordinary course of business consistent with past practice and in an
amount such that, after giving effect thereto, aggregate employee
compensation expense (considered on an annualized basis) does not
exceed 105% of the aggregate employee compensation expense for the
Company's fiscal year ended December 31, 1995;
(l) cancelled, waived, released or otherwise compromised
any debt, claim or right, except as permitted under clause (j);
(m) made any change in any method of accounting principle
or practice;
(n) suffered the termination, suspension or revocation of
any license or permit necessary for the operation of its business or
any of the Company Vessels;
(o) entered into any transaction other than on an arm's-
length basis;
(p) suffered any damage, destruction or loss (whether or
not covered by insurance) which has had or could reasonably be
expected to have a Material Adverse Effect on the Company; or
(q) agreed, whether or not in writing, to do any of the
foregoing.
Section 4.10. Contracts. (a) Except as set forth on Schedule
---------
4.10(a), the Company is not a party to: (i) any collective bargaining
agreement; (ii) any Contract with any employee; (iii) any Contract,
containing any covenant limiting its freedom to engage in any line of
business or to compete with any Person; (iv) any Contract containing
an obligation to guarantee or indemnify any other Person; (v) any
joint venture, partnership or similar Contract involving a sharing of
profits or expenses; (vi) any Contract under which any member of the
Company is the licensee or licensor of patents, copyrights,
trademarks,
<PAGE>
applications for any of the foregoing or any other intellectual
property rights of any nature; (vii) any Contract with any of its
Affiliates; (viii) any Contract under which it has borrowed any money
or issued any note, bond or other evidence of indebtedness for
borrowed money or guaranteed indebtedness for money borrowed by
others; (ix) any hedge, swap, exchange, futures or similar Contracts;
or (x) any Contract that has had or may have a Material Adverse Effect
on the Company.
(b) Schedule 4.10(b) contains a list and brief description
(including the names of the parties and the date and nature of the
agreement) of each material Contract to which the Company is a party.
There is no existing breach by the Company of any of its material
Contracts and there has not occurred any event that with the lapse of
time or the giving of notice or both would constitute such a breach.
There is not pending nor, to the Knowledge of Stockholders,
threatened, any claim that the Company, has breached any of the terms
or conditions of any of its material Contracts and, to the Knowledge
of Stockholders, no other parties to such Contracts have breached any
of their terms or conditions. SEACOR has been provided with a
complete and accurate copy of each Contract listed on Schedule
4.10(b).
Section 4.11. Properties and Leases other than Vessels. (a)
----------------------------------------
With respect to assets other than vessels and except for assets
disposed of for adequate consideration in the ordinary course of
business and which are not material to the operation of its business,
the Company has good and valid title to all real property and all
other properties and assets accounted for as belonging to the Company
in the McCall Latest Balance Sheet free and clear of all Liens, except
for (i) Liens that secure indebtedness that is properly reflected in
the McCall Latest Balance Sheet; (ii) Liens for Taxes accrued but not
yet payable; (iii) Permitted Liens, provided that the obligations
collateralized by such Permitted Liens are not delinquent or are being
contested in good faith; (iv) such imperfections of title and
encumbrances, if any, as do not in the aggregate materially detract
from the value or materially interfere with the present use of any
such properties or assets or the potential sale of any such properties
and assets; and (v) capital leases and leases of such properties, if
any, to third parties for fair and adequate consideration. Schedule
4.11(a) contains a list of (i) all Liens (other than Permitted Liens
and Liens for Taxes accrued but not yet payable) on property of the
Company other than vessels collateralizing indebtedness on the McCall
Latest Balance Sheet and (ii) certain items of personal property not
owned by the Company. The Company owns, or has valid leasehold
interests in, all properties and assets, other than vessels, used in
the conduct of its business.
(b) With respect to each lease of real property and
material amount of personal property (other than vessels) to which the
Company is a party, (i) the Company has a valid leasehold interest in
such real property or personal property; (ii) such lease is in full
force and effect in accordance with its terms; (iii) all rents and
other monetary amounts that have become due and payable thereunder
have been paid in full; (iv) no waiver, indulgence or postponement of
the obligations thereunder has been granted by the other party
thereto; (v) there exists no material default (or an event that, with
notice or lapse of time or both
<PAGE>
would constitute a material default) under such lease; (vi) the
Company has not violated any of the terms or conditions under any such
lease; (vii) to the Knowledge of Stockholders, there has been no
(A) condition or covenant to be observed or performed by any other
party under any such lease that has not been fully observed and
performed and (B) in the case of each prime lease concerning demised
premises subleased to the Company, condition or covenant to be
observed or performed by each party thereto that has not been fully
observed and performed and there does not exist any event of default
or event, occurrence, condition or act that, with the giving of
notice, the lapse of time or the happening of any further event or
condition, would become a default under any such prime lease; and
(viii) the transactions described in this Agreement will not
constitute a default under or cause for termination or modification of
such lease.
(c) Except as disclosed on Schedule 4.11(c), the rent
charged to the Company under any lease (other than with respect to
vessels) between the Company and any of its Affiliates is at or below
the market rate and any such lease contains such other terms and
conditions that are no less favorable to the Company than would be
obtainable in an arms-length transaction with an independent third
party lessor.
(d) Schedule 4.11(d) contains a list of all real property
owned by the Company and a list of all leases, other than with respect
to vessels, to which the Company is a party, which list includes a
reasonable description of the location and approximate square footage
of each property, whether owned or leased, and the term of each such
lease, including all renewal options. Complete and correct copies of
each lease has been delivered to McCall.
Section 4.12. Condition of the Company's Assets Other than
--------------------------------------------
Vessels. All of the tangible assets of the Company (other than
-------
vessels) are currently in good and usable condition, ordinary wear and
tear excepted, and are being used in the business of the Company.
There are no defects in such assets or other conditions that in the
aggregate have or would be reasonably likely to have, a Material
Adverse Effect on the Company. Such assets and the other properties
being leased by a member of the Company pursuant to the leases
described on Schedule 4.11(d), together with the vessels listed on
Schedule 4.13(a), constitute all of the operating assets being
utilized by the Company in the conduct of its business and such assets
are sufficient in quantity and otherwise adequate for the operations
of the Company as currently conducted.
Section 4.13. Vessels. (a) Schedule 4.13(a) hereto sets forth
-------
a list of all vessels owned, leased, chartered or managed by the
Company on the date hereof and the name of the nation under which each
such vessel is documented and flagged, and indicates any such vessels
that are laid up or being held for sale on the date hereof (such
vessel, including related spare parts, stores and supplies (other than
any such vessels that are managed on the date hereof), being referred
to herein as "Company Vessels"). With respect to the owned Company
Vessels, the Company is the sole owner of each Company Vessel owned by
it and has good title to each such vessel free and clear of all Liens,
except for (i) Liens that
<PAGE>
collateralize indebtedness that is properly reflected in the McCall
Latest Balance Sheet; (ii) Liens for Taxes accrued but not yet
payable; (iii) Permitted Liens, provided that the obligations
collateralized by such Permitted Liens are not delinquent or are being
contested in good faith and, except with respect to the matters
disclosed on Schedule 4.19, in no event shall such contested
obligations, individually or in the aggregate, exceed $50,000 in the
aggregate. Schedule 4.13(a) contains a list of all Liens (other than
Permitted Liens which collateralize obligations that are not
delinquent or that are being contested in good faith and, except with
respect to the matters disclosed on Schedule 4.19, do not exceed
$50,000 in the aggregate) on vessels collateralizing indebtedness on
the McCall Latest Balance Sheet.
(b) With respect to each Company Vessel that is operated by
the Company under lease or charter and except as disclosed on Schedule
4.13(b), (i) the Company has a valid right to charter or a valid
leasehold interest in such vessel; (ii) such charter agreement or
lease is in full force and effect in accordance with its terms;
(iii) all rents, charter payments and other monetary amounts that have
become due and payable thereunder have been paid in full; (iv) no
waiver, indulgence or postponement of the obligations thereunder has
been granted by the other party thereto; (v) there exists no material
default (or an event that, with notice or lapse of time or both would
constitute a material default) under such charter agreement or lease;
(vi) the Company has not violated any of the terms or conditions under
any such charter agreement or lease and, to the Knowledge of
Stockholders, there is no condition or covenant to be observed or
performed by any other party under such charter agreement or lease
that has not been fully observed or performed; (vii) the transactions
described in this Agreement will not constitute a default under or
cause for termination or modification of such charter agreement or
lease; and (viii) to the Knowledge of Stockholders, there is no
unrepaired damage to any equipment that could affect certification or
class or be budgeted for repair in the next twelve months.
(c) With respect to each Company Vessel and except as
indicated on Schedule 4.13(c), (i) such Company Vessel is lawfully and
duly documented under the flag of the nation listed on Schedule
4.13(a) for such Company Vessel, (ii) such Company Vessel is afloat
and in satisfactory operating condition for charter, (iii) such
Company Vessel holds in full force and effect all certificates,
licenses, permits and rights required for operation in the manner
vessels of its kind are being operated in the geographical area in
which such Company Vessel is presently being operated, (iv) to the
Knowledge of Stockholders, no event has occurred and no condition
exists that would materially or adversely effect the condition of such
Company Vessel and (v) with respect to any Company Vessel which is
classed, such vessel is in class, free of any recommendations of which
the Company has been informed.
Section 4.14. Accounting Matters. To the Knowledge of
------------------
Stockholders, neither the Company nor any of its Affiliates has taken
or agreed to take any action that (without giving effect to any action
taken or agreed to be taken by SEACOR or any of its Affiliates) would
prevent SEACOR from accounting for the business combination to be
effected by the Acquisition as a pooling-of-interests.
<PAGE>
Section 4.15. Suppliers and Customers. To the Knowledge of
-----------------------
Stockholders and except as disclosed on Schedule 4.15, (a) no supplier
providing products, materials or services to the Company intends to
cease selling such products, materials or services to the Company or
to limit or reduce such sales to the Company or materially alter the
terms or conditions of any such sales and (b) no customer of the
Company intends to terminate, limit or reduce its or their business
relations with the Company.
Section 4.16. Employee Matters. (a) Schedule 4.16(a) sets
----------------
forth the name, title, current annual compensation rate (including
bonus and commissions, but separately identifying salary or hourly
rate), accrued bonus, accrued sick leave, accrued severance pay and
accrued vacation benefits of each officer of the Company, and a list
of all employment, consulting, employee confidentiality or similar
Contracts to which the Company is a party. Copies of organizational
charts, any employee handbook(s), and any reports and/or plans
prepared or adopted pursuant to the Equal Employment Opportunity Act
of 1972, as amended, have been provided to SEACOR.
(b) Each of the following is true with respect to the
Company:
(i) The Company is in compliance with all applicable laws
respecting employment and employment practices, terms and
conditions of employment, wages and hours and occupational safety
and health, and is not engaged in any unfair labor practice
within the meaning of Section 7 of the National Labor Relations
Act, and there is no proceeding pending or, to the Knowledge of
Stockholders, threatened, or, to the Knowledge of Stockholders,
any pending or threatened investigation against it relating to
any thereof, and, to the Knowledge of Stockholders, there is no
basis for any such proceeding or investigation;
(ii) to the Knowledge of Stockholders, none of the employees
of any such member is a member of, or represented by, any labor
union and there are no efforts being made to unionize any of such
employees; and
(iii) to the Knowledge of Stockholders, there are no charges
or complaints of, or proceedings involving, discrimination or
harassment (including but not limited to discrimination or
harassment based upon sex, age, marital status, race, religion,
color, creed, national origin, sexual preference, handicap or
veteran status) pending or, to the Knowledge of Stockholders,
threatened, nor, to the Knowledge of Stockholders, is there any
pending or threatened investigation, including, but not limited
to, investigations before the Equal Employment Opportunity
Commission or any federal, state or local agency or court, with
respect to any such member.
Section 4.17. Employee Benefit Plans. With respect to the
----------------------
Company:
(a) Schedule 4.17(a) lists each Employee Plan that the
Company maintains, administers, contributes to, or has any contingent
liability with respect to. The Stockholders
<PAGE>
have provided a true and complete copy of each such Employee Plan,
current summary plan description, (and, if applicable, related trust
documents) and all amendments thereto and written interpretations
thereof together with (i) the three most recent annual reports
prepared in connection with each such Employee Plan (Form 5500
including, if applicable, Schedule B thereto); (ii) the most recent
actuarial report, if any, and trust reports prepared in connection
with each Employee Plan; (iii) all material communications received
from or sent to the Internal Revenue Service ("IRS") or the Department
of Labor within the last two years (including a written description of
any material oral communications); (iv) the most recent IRS
determination letter with respect to each Employee Plan and the most
recent application for a determination letter; (v) all insurance
contracts or other funding arrangements; and (vi) the most recent
actuarial study of any post-employment life or medical benefits
provided, if any.
(b) Schedule 4.17(b) identifies each Benefit Arrangement
that the Company maintains, administers, contributes to, or has any
contingent liability with respect to. The Stockholders has furnished
to SEACOR copies or descriptions of each Benefit Arrangement and any
of the information set forth in Section 4.17(a) applicable to any such
Benefit Arrangement. Each Benefit Arrangement has been maintained and
administered in substantial compliance with its terms and with the
requirements (including reporting requirements) prescribed by any and
all statutes, orders, rules and regulations which are applicable to
such Benefit Arrangement.
(c) Benefits under any Employee Plan or Benefit Arrangement
are as represented in such documents and have not been increased or
modified (whether written or not written) subsequent to the dates of
such documents. Except as disclosed on Schedule 4.17(c), the Company
has not communicated to any employee or former employee any intention
or commitment to modify any Employee Plan or Benefit Arrangement or to
establish or implement any other employee or retiree benefit or
compensation arrangement.
(d) No Employee Plan is (i) a Multiemployer Plan, (ii) a
Title IV Plan or (iii) maintained in connection with any trust
described in Section 501(c)(9) of the Code. The Company has never
maintained or become obligated to contribute to any employee benefit
plan (i) that is subject to Title IV of ERISA, (ii) to which Section
412 of the Code applies, or (iii) that is a Multiemployer Plan. The
Company has not within the last five years engaged in, or is a
successor corporation to an entity that has engaged in, a transaction
described in Section 4069 of ERISA.
(e) Each Employee Plan which is intended to be qualified
under Section 401(a) of the Code is so qualified and has been so
qualified during the period from its adoption to date, and no event
has occurred since such adoption that would adversely affect such
qualification and each trust created in connection with each such
Employee Plan forming a part thereof is exempt from tax pursuant to
Section 501(a) of the Code. A favorable determination letter has been
issued by the IRS as to the qualification of each such Employee Plan
under the Code and to the effect that each such trust is exempt from
taxation
<PAGE>
under Section 501(a) of the Code. Except as disclosed on Schedule
4.17(e), each Employee Plan has been maintained and administered in
compliance with its terms and with the requirements (including
reporting requirements) prescribed by any and all applicable statutes,
orders, rules and regulations, including but not limited to ERISA and
the Code.
(f) Full payment has been made of all amounts which the
Company is or has been required to have paid as contributions to or
benefits due under any Employee Plan or Benefit Arrangement under
applicable law or under the terms of any such plan or any arrangement.
(g) Neither the Company nor any of its directors, officers
or employees has engaged in any transaction with respect to an
Employee Plan that could subject the Company to a tax, penalty or
liability for a prohibited transaction, as defined in Section 406 of
ERISA or Section 4975 of the Code. None of the assets of any Employee
Plan are invested in employer securities or employer real property.
(h) To the Knowledge of Stockholders, there are no facts or
circumstances that give rise to any liability under Title I of ERISA.
(i) The Company does not have any current or projected
liability in respect of post-retirement or post-employment medical,
death or life insurance, welfare benefits for retired, current or
former employees, except as required to avoid excise tax under Section
4980B of the Code.
(j) Except as disclosed on Schedule 4.17(j), there is no
litigation, administrative or arbitration proceeding or other dispute
pending or threatened that involves any Employee Plan or Benefit
Arrangement which could reasonably be expected to result in a
liability to the Company or McCall.
(k) Except as disclosed on Schedule 4.17(k), no employee or
former employee of the Company will become entitled to any bonus,
employee advance, retirement, severance, job security or similar
benefit or enhanced benefit (including acceleration of an award,
vesting or exercise of an incentive award) or any fee or payment of
any kind solely as a result of any of the transactions contemplated
hereby and no such disclosed payment constitutes a parachute payment
described in Section 280G of the Code.
(l) Except as disclosed in Schedule 4.17(l), no Employee
Plan provides health, medical, death or survivor benefits to any
stockholders or directors who are not employees.
<PAGE>
Section 4.18. Tax Matters. Each of the following is true with
-----------
respect to the Company to the extent applicable to such member:
(a) All Returns have been, or will be, timely filed by (or
on behalf of) the Company in accordance with all applicable laws; all
Taxes that are due, or claimed by any taxing authority to be due from
or with respect to the Company have been or will be timely paid by (or
on behalf of) the Company; all Returns of (or including) the Company
have been properly completed in compliance with all applicable laws
and regulations and are true, complete and correct in all material
respects and such Returns are not subject to penalties under Section
6662 of the Code (or any corresponding provision of state, local or
foreign tax law). With respect to any period for which Returns have
not yet been filed, or for which Taxes are not yet due or owing, the
Company has made due and sufficient current accruals for such Taxes as
reflected on its books (including, without limitation, the McCall
Latest Balance Sheet);
(b) There are no outstanding agreements, consents, waivers
or arrangements extending the statutory period of limitation
applicable (A) to file any Return or (B) for assessment or collection
of any Taxes due from or with respect to the Company for any period
prior to the date hereof, and the Company has not been requested to
enter into any such agreement, consent, waiver or arrangement;
(c) There are no Liens with respect to Taxes (other than
for current Taxes not yet due and payable) upon any of the assets of
the Company;
(d) All material elections with respect to Taxes affecting
the Company are set forth in Schedule 4.18(d);
(e) All Taxes that the Company is required by law to
withhold or collect (including Taxes required to be withheld and
collected from employee wages, salaries and other compensation) have
been duly withheld or collected, and have been timely paid over to the
appropriate governmental authorities;
(f) The United States federal income tax Returns of (or
including) the Company have been examined by the IRS or the periods
covered by such Returns have been closed by applicable statute of
limitations, for all periods through December 31, 1992. The state,
local and foreign Returns of (or including) the Company have been
examined by the relevant taxing authorities, or the periods covered by
such Returns have been closed by applicable statute of limitations,
for all periods through December 31, 1992. All deficiencies claimed,
proposed or asserted or assessments made as a result of such
examinations or any other examinations of any member of the Company
have been fully paid or fully settled, and no issue has been raised by
any federal, state, local or foreign taxing authority in any such
examination which, by application of the same or similar principles,
could reasonably be expected to result in a proposed deficiency for
any subsequent taxable period. Schedule
<PAGE>
4.18(f) sets forth each state and foreign jurisdiction in which the
Company has, in the last three years, filed a Return;
(g) No Tax audits or other administrative proceedings are
pending with regard to any Taxes for which the Company may be liable
and the Company has not received any notice from any taxing authority
that it intends to conduct such an audit or commence such an
administrative proceeding;
(h) No claim has been made by a taxing authority in a
jurisdiction where the Company does not file Returns that the Company
is or may be subject to taxation by that jurisdiction;
(i) The Company is not a party to any agreement, contract,
arrangement or plan that would result, separately or in the aggregate,
in the payment of any "parachute payments" within the meaning of Code
Section 280G (or any comparable provision of state or local law);
(j) The Company has not agreed, nor is it required, to make
any adjustment under Code Section 481(a) (or any comparable provision
of state or local law) by reason of a change in any accounting method
or otherwise, and there is no application pending with any taxing
authority requesting permission for any changes in any accounting
method of the Company. Neither the IRS nor any comparable taxing
authority has proposed to the Company in writing or, to the Knowledge
of Stockholders, otherwise proposed any such adjustment or change in
accounting method;
(k) The Company has not filed a consent pursuant to the
collapsible corporation provisions of Section 341(f) of the Code (or
any corresponding provision of state, local or foreign income law) or
agreed to have Section 341(f)(2) of the Code (or any corresponding
provision of state, local or foreign income tax law) apply to any
disposition of any asset owned by it;
(l) None of the assets of the Company is property that such
company is required to treat as being owned by any other 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 Tax Reform Act of 1986;
(m) None of the assets of the Company directly or
indirectly secures any debt, the interest on which is tax exempt under
Section 103(a) of the Code;
(n) None of the assets of the Company (i) is subject to
Section 168(g)(i)(A) of the Code or (ii) constitutes "tax-exempt use
property" within the meaning of Section 168(h) of the Code;
<PAGE>
(o) The Company has not made a deemed dividend election
under Section 1.1502- 32(f)(2) of the Treasury Regulations or a
consent dividend election under Section 565 of the Code;
(p) The Company has never been a member of an affiliated
group of corporations filing a consolidated combined or unitary Return
other than a group of which the Company is the parent corporation; and
(q) The Company is not (or has never been) a party to any
tax sharing agreement nor has any such member assumed the tax
liability of any other person under contract.
Section 4.19. Litigation. Except as disclosed on Schedule 4.19,
----------
there are no actions, suits, proceedings, arbitrations or
investigations pending or, to the Knowledge of Stockholders,
threatened before any court, any governmental agency or
instrumentality or any arbitration panel, against or affecting the
Company or, to the Knowledge of Stockholders, any of the directors or
officers of the foregoing. To the Knowledge of Stockholders, no facts
or circumstances exist that would be likely to result in the filing of
any such action that would have a Material Adverse Effect on the
Company. Except as disclosed on Schedule 4.19, the Company is not
subject to any currently pending judgment, order or decree entered in
any lawsuit or proceeding. All matters listed on Schedule 4.19 are
either adequately covered by insurance or accounted for through the
establishment of reasonable reserves on the McCall Latest Balance
Sheet.
Section 4.20. Insurance. (a) Schedule 4.20(a) contains a list
---------
of the insurance policies that the Company currently maintains with
respect to its business, vessels, properties and employees as of the
date hereof, each of which is in full force and effect and a complete
and correct copy of each has been delivered to SEACOR. All insurance
premiums currently due with respect to such policies have been paid
and the Company is not otherwise in default with respect to any such
policy, nor has the Company failed to give any notice or, to the
Knowledge of Stockholders, present any claim under any such policy in
a due and timely manner. There are no outstanding unpaid claims under
any such policy other than any pending claims under any of the
Company's marine insurance policies, the amount of which claims have
been recorded as a receivable and all of which are fully collectible.
The Company has not received notice of cancellation or non-renewal of
any such policy. Such policies are sufficient for compliance with all
requirements of law and all agreements to which the Company is a
party.
(b) Except as disclosed on Schedule 4.20(b), the Company is
not nor has ever been a member of any protection or indemnity club.
Section 4.21. Environmental Compliance. (a) Except as set
------------------------
forth on Schedule 4.21(a), the Company is and, to the Knowledge of
Stockholders, at all times in the past has been in compliance with all
Environmental Laws and the Company possesses all necessary
<PAGE>
licenses, permits, authorizations, and other approvals and
authorizations that are required under the Environmental Laws
("Environmental Permits").
(b) Except as set forth on Schedule 4.21(b), the Company is
not, nor has been, subject to any pending or, to the Knowledge of
Stockholders, threatened investigations, administrative or judicial
proceedings pursuant to, or has received any notice of any violation
of, or claim alleging liability under, any Environmental Laws, and, to
the Knowledge of Stockholders, no facts or circumstances exist that
would be likely to result in a claim, citation or allegation against
the Company for a violation of, or alleging liability under, any
Environmental Laws.
(c) Except as set forth on Schedule 4.21(c), there are no
above ground or underground tanks of any type (including tanks storing
gasoline, diesel fuel, oil or other petroleum products) or disposal
sites for hazardous substances, hazardous wastes or any other waste,
located on or under the real estate currently owned, leased or used by
the Company and, to the Knowledge of Stockholders, there were no such
disposal sites located on or under the real estate previously owned,
leased or used by the Company on the date of the sale thereof by the
Company or during the period of lease for use by the Company.
(d) Except in the ordinary course of business or as listed
on Schedule 4.21(d), and in all cases in compliance with Environmental
Laws, the Company has not engaged any third party to handle, transport
or dispose of Hazardous Substances (including for this purpose but not
limited to, gasoline, diesel fuel, oil or other petroleum products, or
bilge waste) on its behalf. The disposal by the Company of its
hazardous substances and wastes has been in compliance with all
Environmental Laws.
(e) To the Knowledge of Stockholders, no asbestos or
asbestos containing materials have been used in the construction,
repair, fitting out or retrofitting of any of the Company Vessels.
Section 4.22. Compliance With Law; Permits. Except with respect
----------------------------
to Environmental Laws, which is the subject of Section 4.21, the
following statements are true and correct:
(a) The operations and activities of the Company complies
with all applicable laws, regulations, ordinances, rules or orders of
any federal, state or local court or any governmental authority except
for any violation or failure to comply that could not reasonably be
expected to result in a Material Adverse Effect on the Company.
(b) The Company possesses all governmental licenses,
permits and other governmental authorizations that are (i) required
under all federal, state and local laws and regulations for the
ownership, use and operation of its assets or (ii) otherwise necessary
to permit the conduct of its business without interruption, and such
licenses, permits and authorizations are in full force and effect and
have been and are being fully complied with by it except for any
violation or failure to comply that could not reasonably be expected
to result
<PAGE>
in a Material Adverse Effect on the Company. The Company has not
received any notice of any violation of any of the terms or conditions
of any such license, permit or authorization and, to the Knowledge of
Stockholders, no facts or circumstances exist that could form the
basis of a revocation, claim, citation or allegation against it for a
violation of any such license, permit or authorization. No such
license, permit or authorization or any renewal thereof will be
terminated, revoked, suspended, modified or limited in any respect as
a result of the transactions contemplated by this Agreement except for
any violation or failure to comply that could not reasonably be
expected to result in a Material Adverse Effect on the Company.
Section 4.23. Interests in Clients, Suppliers, Etc. Except as
------------------------------------
set forth on Schedule 4.23, no officer or director of the Company
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 that has entered
into any contract with the Company. Ownership of less than 1% of any
class of securities of a company whose securities are registered under
the Exchange Act will not be deemed to be a financial interest for
purposes of this Section 4.23.
Section 4.24. Transactions With Related Parties. (a) Schedule
---------------------------------
4.24(a) lists all transactions between January 1, 1993 and the date of
this Agreement involving, or for the benefit of, the Company, on the
one hand, and any director or officer of the Company or Affiliate of
such director or officer, on the other hand, including (i) any debtor
or creditor relationship, (ii) any transfer or lease of real or
personal property or charter or management of any Company Vessel, and
(iii) purchases or sales of products or services.
(b) Schedule 4.24(b) lists (i) all agreements and claims of
any nature that any officer or director of the Company or any
Affiliate of such officer or director has with or against the Company
as of the date of this Agreement that are not identified on the McCall
Latest Balance Sheet or the notes thereto and (ii) all agreements and
claims of any nature that the Company has with or against any officer
or director of the Company or any Affiliate of such officer or
director as of the date of this Agreement that are not identified on
the McCall Latest Balance Sheet or the notes thereto.
Section 4.25. Broker's and Finder's Fee. No agent, broker,
-------------------------
person or firm acting on behalf of the Stockholders or the Company is
or will be entitled to any commission or broker's or finder's fee from
any of the parties hereto, or from any Affiliate of the parties
hereto, in connection with any of the transactions contemplated
herein.
Section 4.26. Disclosure. No representations or warranties by
----------
the Stockholders in this Agreement and no statement contained in the
schedules or exhibits or in any certificate to be delivered pursuant
to this Agreement, contains or will contain any untrue statement of
material fact or omits or will omit to state any material fact
necessary, in light of the circumstances under which it was made, in
order to make the statements herein or therein not misleading.
<PAGE>
Section 4.27. Intellectual Property. (a) Schedule 4.27
---------------------
contains a list of any trademarks, service marks, trade names,
copyrights and patents (and any application for the registration
thereof), owned or licensed by the Company, specifying as to each, as
applicable: (i) the nature of such Intellectual Property Right;
(ii) the owner of each Intellectual Property Right licensed by the
Company; (iii) the expiration or termination date of each third party
license; and (iv) any third Person to whom any Intellectual Property
Right owned by the Company is licensed. All of the Intellectual
Property Rights owned by the Company are owned by the Company free and
clear of Liens. All third party licenses are valid, enforceable and
in full force and effect, and the interests of the Company under such
third party licenses are held free and clear of any Liens. The
Company has no obligation to make any royalty or other payment to any
Person in connection with the use of or right to use any Intellectual
Property Right. The making, using or selling of products or services
incorporating the subject matter of any Intellectual Property Rights
of the Company does not infringe, violate or conflict with any
Intellectual Property Rights of any other Person.
(b) To the Knowledge of Stockholders, the use by the
Company of the name "McCall" or any variant or derivative thereof used
by the Company on the date hereof does not violate or infringe any
Intellectual Property Right of any Person.
ARTICLE 5.
REPRESENTATIONS AND WARRANTIES OF MCCALL AND SEACOR
McCall and SEACOR represent and warrant to the Stockholders as
follows:
Section 5.1. Organization and Citizenship. (a) SEACOR is a
----------------------------
corporation duly organized, validly existing and in good standing
under the laws of the State of Delaware and has all corporate power
and authority to carry on its business as now being conducted and to
own, lease and operate its properties. Each other member of the
SEACOR Affiliated Group is duly organized under the laws of the state
or foreign nation of its organization and has all the requisite power
and authority under the laws of such jurisdiction to carry on its
business as now being conducted and to own its properties. Each
member of the SEACOR Affiliated Group is duly qualified to do business
and is in good standing in each state and foreign jurisdiction in
which the character or location of the properties owned or leased by
it or the nature of the business conducted by it makes such
qualification necessary, except where the failure to be so qualified
or in good standing would not have a Material Adverse Effect on
SEACOR.
(b) SEACOR is a citizen of the United States within the
meaning of Section 2 of the Shipping Act, 1916, as amended for the
purposes of owning and operating vessels in the U.S. coastwise trade.
Section 5.2. Capitalization. The authorized capital stock of
--------------
SEACOR consists exclusively of 20,000,000 shares of common stock, $.01
par value per share, of which 8,513,825 shares were issued and
outstanding and 55,768 shares were held in its treasury as
<PAGE>
of May 28, 1996. All of such issued and outstanding shares have been
validly issued, are fully paid and nonassessable and were issued free
of preemptive rights, in compliance with any rights of first refusal,
and in compliance with all legal requirements.
Section 5.3. Authority; Enforceable Agreements. (a) SEACOR
---------------------------------
has the requisite corporate power and authority to enter into this
Agreement and to consummate the transactions contemplated hereby. The
execution and delivery of this Agreement by SEACOR and the
consummation by SEACOR of the transactions contemplated hereby have
been duly authorized by all necessary corporate action on the part of
SEACOR. This Agreement has been duly executed and delivered by SEACOR
and (assuming due execution and delivery by the other parties hereto)
constitutes a valid and binding obligation of SEACOR, enforceable
against SEACOR in accordance with its terms, except as such
enforceability may be limited by bankruptcy, insolvency,
reorganization or similar laws affecting creditors' rights generally.
The other agreements entered, or to be entered, into by SEACOR in
connection with this Agreement have been, or will be, duly executed
and delivered by SEACOR and (assuming due execution and delivery by
the other parties thereto) constitute, or will constitute, valid and
binding obligations of SEACOR, enforceable against SEACOR in
accordance with their terms, except as such enforceability may be
limited by bankruptcy, insolvency, reorganization or similar laws
affecting creditors' rights generally.
(b) McCall has the requisite power and authority to enter
into this Agreement and to consummate the transactions contemplated
hereby. The execution and delivery of this Agreement by McCall and
the consummation by McCall of the transactions contemplated hereby
have been duly authorized by all necessary corporate action on the
part of McCall. This Agreement has been duly executed and delivered
by McCall and (assuming due execution and delivery by the other
parties hereto) constitutes a valid and binding obligation of McCall,
enforceable against McCall in accordance with its terms, except as
such enforceability may be limited by bankruptcy, insolvency,
reorganization or similar laws affecting creditors' rights generally.
The other agreements entered, or to be entered, into by McCall in
connection with this Agreement have been, or will be, duly executed
and delivered by McCall and (assuming due execution and delivery by
the other parties thereto) constitute, or will constitute, valid and
binding obligations of McCall, enforceable against McCall in
accordance with their terms, except as such enforceability may be
limited by bankruptcy, insolvency, reorganization or similar laws
affecting creditors' rights generally.
Section 5.4. No Conflicts or Consents. (a) Neither the
------------------------
execution, delivery nor performance of this Agreement by SEACOR nor
the consummation of the transactions contemplated hereby will (i)
violate, conflict with, or result in a breach of any provision of,
constitute a default (or an event that, with notice or lapse of time
or both, would constitute a default) under, result in the termination
of, or accelerate the performance required by, or result in the
creation of any adverse claim against any of the properties or assets
of any member of the SEACOR Affiliated Group under (A) the
certificates of incorporation, by-laws or other organizational
documents of any member of the SEACOR Affiliated Group or (B) any
note, bond, mortgage, indenture, deed of trust, lease, license,
agreement or other
<PAGE>
instrument or obligation to which any member of the SEACOR Affiliated
Group is a party, or by which any of its assets are bound, or (ii)
subject to obtaining clearance under the HSR Act, violate any order,
writ, injunction, decree, judgment, statute, rule or regulation of any
governmental body to which any member of the SEACOR Affiliated Group
is subject or by which any of its assets are bound.
(b) No consent, approval, order, permit or authorization
of, or registration, declaration or filing with, any Person or of any
government or any agency or political subdivision thereof is required
for the execution, delivery and performance by SEACOR of this
Agreement and the covenants and transactions contemplated hereby or
for the execution, delivery and performance by SEACOR of any other
agreements entered, or to be entered, into by SEACOR in connection
with this Agreement, except for the filing of the Registration
Statement on Form S-3 with the SEC, any filings, consents or approvals
in connection therewith and the declaration of effectiveness thereof
by the SEC as contemplated by the Investment and Registration Rights
Agreement.
Section 5.5. Corporate Documents. SEACOR has delivered to the
-------------------
Stockholders true and complete copies of its certificate of
incorporation and by-laws, as amended or restated through the date of
this Agreement.
Section 5.6. SEC Documents; Financial Statements; Liabilities.
------------------------------------------------
(a) SEACOR has filed all required reports, schedules, forms,
statements and other documents with the SEC since December 31, 1993
(the "SEACOR SEC Documents"). As of their respective dates, the
SEACOR SEC Documents complied as to form in all material respects with
the requirements of the Securities Act or the Exchange Act, as the
case may be, and the rules and regulations of the SEC promulgated
thereunder applicable to such SEACOR SEC Documents, and none of the
SEACOR SEC Documents contained any untrue statement of a material fact
or omitted to state a material fact required to be stated therein or
necessary in order to make the statements therein, in light of the
circumstances under which they were made, not misleading.
(b) The SEACOR Financial Statements included in the SEACOR
SEC Documents have been prepared in accordance with GAAP applied on a
basis consistent with prior periods, and present fairly the financial
position of SEACOR and its subsidiaries at the dates of the balance
sheets included therein and the results of operations and cash flows
for the periods then ended, except, in the case of the SEACOR Interim
Financial Statements, as permitted by Rule 10-01 of Regulation S-X of
the SEC. The SEACOR Interim Financial Statements reflect all
adjustments (consisting only of normal recurring adjustments) that are
necessary for a fair statement of the results for the interim periods
presented therein. No member of the SEACOR Affiliated Group has, nor
are any of their respective assets subject to, any liability,
commitment, debt or obligation (of any kind whatsoever whether
absolute or contingent, accrued, fixed, known, unknown, matured or
unmatured), except (i) as and to the extent reflected on the SEACOR
Latest Balance Sheet, (ii) as may have been incurred or may have
arisen since the date of the SEACOR Latest Balance Sheet in the
ordinary course of
<PAGE>
business and that are not material individually or in the aggregate or
(iii) as permitted by this Agreement.
Section 5.7. Absence of Certain Changes or Events. Since the
------------------------------------
date of the SEACOR Latest Balance Sheet, each member of the SEACOR
Affiliated Group has conducted its business only in the ordinary
course, and has not:
(a) amended its certificate of incorporation, by-laws or
similar organizational documents;
(b) merged or consolidated with another Person (other than
a subsidiary) or acquired or agreed to acquire any Person, or sold,
leased, transferred or otherwise disposed of any material portion of
its assets except for fair value in the ordinary course of business;
(c) suffered any damage, destruction or loss (whether or
not covered by insurance) which has had or could reasonably be
expected to have a Material Adverse Effect on the SEACOR Affiliated
Group; or
(d) declared or paid any dividend or made any distribution
with respect to any of its equity interests, or redeemed, purchased or
otherwise acquired any of its equity interests, or issued, sold or
granted any equity interests or any option, warrant or other right to
purchase or acquire any such interest or effected any split or
reclassification thereof other than (i) grants of stock options or
restricted stock and issuances of shares of SEACOR Common Stock upon
the exercise of stock options or conversion of any outstanding
convertible securities, (ii) the acceptance by SEACOR of any shares in
consideration of the exercise of any stock options or in satisfaction
of any tax or tax withholding obligations of the holders of such
options, and (iii) payments within the SEACOR Affiliated Group by
entities other than SEACOR as part of its cash management program; or
(e) agreed, whether or not in writing, to do any of the
foregoing.
Section 5.8. Contracts. Each Contract which any member of the
---------
SEACOR Affiliated Group is a party that would be required to be filed
as an exhibit to a report, schedule, form, statement or other document
filed by SEACOR with the SEC (each a "Material Contract") has been so
filed and, except as set forth on Schedule 5.8, between the date of
the filing of its most recent Quarterly Report on Form 10-Q and the
date of this Agreement, SEACOR has not entered into any Material
Contract other than this Agreement. No member of the SEACOR
Affiliated Group has breached, nor is there any pending or, to the
Knowledge of SEACOR, threatened, claim that it has breached, any of
the terms or conditions of any of its Material Contracts, and to the
Knowledge of SEACOR, no other parties to any such Material Contract
have breached any of its terms or conditions.
Section 5.9. Litigation. Except as disclosed in a SEACOR SEC
----------
Document or listed on Schedule 5.9, there are no actions, suits,
proceedings, arbitrations or investigations
<PAGE>
pending or, to the Knowledge of SEACOR, threatened, before any court,
any governmental agency or instrumentality or any arbitration panel,
against or affecting any member of the SEACOR Affiliated Group or, to
the Knowledge of SEACOR, any of the directors or officers of the
foregoing, that would have a Material Adverse Effect on SEACOR. To
the Knowledge of SEACOR, no facts or circumstances exist that would be
likely to result in the filing of any such action. No member of the
SEACOR Affiliated Group is subject to any currently pending judgment,
order or decree entered in any lawsuit or proceeding.
Section 5.10. Legality of SEACOR Common Stock. The SEACOR
-------------------------------
Common Stock to be issued in connection with the Acquisition, when
issued and delivered in accordance with the terms hereof, will be duly
authorized, validly issued, fully paid and non-assessable, and free of
pre-emptive rights.
Section 5.11. Broker's and Finder's Fee. No agent, broker,
-------------------------
Person or firm acting on behalf of SEACOR is or will be entitled to
any commission or broker's or finder's fee from any of the parties
hereto, or from any Affiliate of the parties hereto, in connection
with any of the transactions contemplated herein.
ARTICLE 6.
CLOSING CONDITIONS
Section 6.1. Conditions Applicable to All Parties. The
------------------------------------
obligations of each of the parties hereto to effect the Acquisition
and the other transactions contemplated by this Agreement is subject
to the satisfaction of the following condition:
(a) No action, suit or proceeding before any court or
governmental or regulatory authority will be pending, no investigation
by any governmental or regulatory authority will have been commenced,
and no action, suit or proceeding by any governmental or regulatory
authority will have been threatened, against McCall SEACOR, the
Company or any of the principals, officers or directors of any of
them, seeking to restrain, prevent or change the transactions
contemplated hereby or questioning the legality or validity of any
such transactions or seeking substantial damages in connection with
any such transactions.
Section 6.2. Conditions to McCall's Obligations. The
----------------------------------
obligations of McCall to effect the Acquisition and the other
transactions contemplated by this Agreement are also subject to the
satisfaction or waiver of the following conditions at or prior to the
Closing:
(a) (i) The representations and warranties of the
Stockholders in this Agreement or in any certificate delivered to
McCall pursuant hereto as of the date hereof will be deemed to have
been made again at and as of the Closing Date (without regard to any
Schedule updates furnished by the Stockholders after the date hereof
unless consented to by McCall) and will then be true and correct in
all material respects, and (ii) the Stockholders will have performed
and complied in all material respects with all agreements and
conditions required by this Agreement to be performed or complied with
by the Stockholders prior to or
<PAGE>
on the Closing Date, except to the extent any such representation or
warranty or performance or compliance, as the case may be, is
qualified by materiality or by reference to the term "Material Adverse
Effect", in which case such representation or warranty or performance
or compliance shall be true and correct in all respects.
(b) There shall not have occurred any event or circumstance
that shall have resulted in or is reasonably likely to result in a
Material Adverse Effect with respect to the Company from the date of
the McCall Latest Balance Sheet to the Closing Date.
(c) All governmental and other material third-party
consents and approvals, if any, necessary to permit the consummation
of the transactions contemplated by this Agreement, including, but not
limited to, the transfer or obtaining of all material permits, or to
permit the continued operation of the business of the Company in
substantially the same manner after the Closing Date as immediately
prior to the Closing Date and otherwise consistent with the provisions
of this Agreement, shall have been received.
(d) The receipt by McCall of a certificate executed by the
Stockholders dated the Closing Date, certifying that the conditions
specified in Section 6.2(a) and (b) hereof have been fulfilled.
(e) The Stockholders will have delivered to McCall, each
dated as of a date not earlier than five days prior to the Closing
Date, (i) copies of the certificates of incorporation or comparable
documents of the Company, including all amendments thereto, certified
by the appropriate government official of the jurisdiction of
incorporation, (ii) to the extent issued by such jurisdiction,
certificates from the appropriate governmental official to the effect
that the Company is in good standing in such jurisdiction and listing
all organizational documents of the Company on file, (iii) to the
extent issued by such jurisdiction, a certificate from the appropriate
governmental official in each jurisdiction in which the Company is
qualified to do business to the effect that the Company is in good
standing in such jurisdiction and (iv) to the extent issued by such
jurisdiction, certificates as to the tax status of the Company in its
jurisdiction of organization and each jurisdiction in which the
Company is qualified to do business.
(f) The Stockholders shall have executed and delivered the
Investment and Registration Rights Agreement, an Indemnification
Agreement substantially in the form attached hereto as Exhibit C (the
"Indemnification Agreement"), and an Escrow Agreement substantially in
the form attached hereto as Exhibit D (the "Escrow Agreement").
(g) The Stockholders shall have delivered to McCall
certificates representing 25 Company Shares duly endorsed in blank or
accompanied by stock transfer powers duly executed in blank and with
all requisite stock transfer tax stamps attached.
Section 6.3. Conditions to Stockholders' Obligations. The
---------------------------------------
obligations of the Stockholders to effect the Acquisition and the
other transactions contemplated by this
<PAGE>
Agreement are also subject to the satisfaction or waiver of the
following conditions at or prior to the Closing:
(a) (i) The representations and warranties of SEACOR and
McCall in this Agreement or in any certificate delivered to the
Stockholders pursuant hereto as of the date hereof will be deemed to
have been made again at and as of the Closing Date (without regard to
any Schedule updates furnished by McCall after the date hereof unless
consented to by the Stockholders) and will then be true and correct in
all material respects, and (ii) McCall will have performed and
complied in all material respects with all agreements and conditions
required by this Agreement to be performed or complied with by McCall
prior to or on the Closing Date, except to the extent any such
representation or warranty or performance or compliance, as the case
may be, is qualified by materiality or by reference to the term
"Material Adverse Effect", in which case such representation or
warranty or performance or compliance shall be true and correct in all
respects.
(b) There shall not have occurred any event or circumstance
that shall have resulted in or is reasonably likely to result in a
Material Adverse Effect with respect to the SEACOR Affiliated Group
from the date of the SEACOR Latest Balance Sheet to the Closing Date;
provided, however, that a decline in the price per share of SEACOR
-------- -------
Common Stock on the NASDAQ Stock Market shall not in and of itself
constitute a Material Adverse Effect.
(c) All governmental and other material consents and
approvals, if any, necessary to permit the consummation of the
transactions contemplated by this Agreement shall have been received.
(d) The receipt by the Stockholders of a certificate
executed by the Chief Financial Officer of SEACOR and an Executive
Officer of McCall dated the Closing Date, certifying that the
conditions specified in Section 6.3(a) and (b) hereof have been
fulfilled.
(e) SEACOR will have delivered to the Stockholders a
certificate dated as of a date not earlier than five days prior to the
Closing Date from the appropriate governmental official to the effect
that SEACOR is in good standing in the State of Delaware and listing
all charter documents of SEACOR on file.
(f) The receipt by the Stockholders of an opinion from
Weil, Gotshal & Manges LLP, counsel to SEACOR, and Lugenbuhl, Burke,
Wheaton, Peck, Rankin & Hubbard, Louisiana counsel to McCall and
SEACOR, which, together, cover the matters set forth in Exhibit E.
(g) SEACOR shall have executed and delivered the Investment
and Registration Rights Agreement, the Indemnification Agreement, and
the Escrow Agreement.
<PAGE>
ARTICLE 7.
TERMINATION
Section 7.1. Termination. This Agreement may be terminated and
-----------
the Acquisition contemplated herein abandoned at any time before the
Closing Date.
(a) By the mutual written consent of the Board of Directors
of McCall and the Stockholders.
(b) By the Board of Directors of McCall or by the
Stockholders if there has been a material breach by the other of any
representation or warranty contained in this Agreement or of any
covenant contained in this Agreement, which in either case cannot be,
or has not been, cured within 15 days after written notice of such
breach is given to the party committing such breach, provided that the
right to effect such cure shall not extend beyond the date set forth
in Section 7.1(c) below.
(c) By the Board of Directors of McCall if (i) all
conditions to Closing required by Article 6 hereof have not been met
by or waived by November 20, 1996 (the "Termination Date"), or (ii)
any such condition cannot be met by such date and has not been waived
by each party in whose favor such condition inures; provided, however,
-------- -------
that neither McCall nor the Stockholders shall be entitled to
terminate this Agreement pursuant to this subparagraph (c) if such
party is in willful and material violation of any of its
representations, warranties or covenants in this Agreement.
(d) If any governmental authority shall have issued an
order, decree or ruling or taken any other action permanently
enjoining, restraining or otherwise prohibiting the Acquisition and
such order, decree, ruling or other action shall have become final and
nonappealable.
Section 7.2. Effect of Termination. Upon termination of this
---------------------
Agreement pursuant to this Article 7, this Agreement shall be void and
of no effect and shall result in no obligation of or liability to any
party or their respective directors, officers, employees, agents or
shareholders, unless such termination was the result of an intentional
breach of any representation, warranty or covenant in this Agreement
in which case the party who breached the representation, warranty or
covenant shall be liable to the other party for damages, and all costs
and expenses incurred in connection with the preparation, negotiation,
execution and performance of this Agreement.
ARTICLE 8.
MISCELLANEOUS
Section 8.1. Notices. All notices hereunder must be in writing
-------
and will be deemed to have been duly given upon receipt of hand
delivery; certified or registered mail; return receipt requested; or
telecopy transmission with confirmation of receipt:
<PAGE>
(a) If to McCall or SEACOR:
SEACOR Holdings, Inc.
1370 Avenue of the Americas
New York, New York 10019
Attention: Charles Fabrikant
with a copy to: Randall Blank
and to:
Weil Gotshal & Manges LLP
767 Fifth Avenue
New York, New York 10153
Attention: David E. Zeltner, Esq.
(b) If to the Stockholders:
At his address appearing
in the books and records of the Company
with a copy to:
Stockwell, Sievert, Viccellio, Clements & Shaddock, L.L.P.
First National Bank Building
One Lakeside Plaza
P.O. Box 2900
Lake Charles, Louisiana 70602-2900
Attention: William E. Shaddock, Esq.
and to:
Jones, Walker, Waechter, Poitevent, Carrere
& Denegre L.L.P.
Place St. Charles
201 St. Charles Avenue
51st Floor
New Orleans, Louisiana 70170-5100
Attention: Carl C. Hanemann, Esq.
Telecopy No.: (504) 582-8398
Such names and addresses may be changed by written notice to each
person listed above.
<PAGE>
Section 8.2. Governing Law. This Agreement shall be governed
-------------
by, construed and interpreted in accordance with the laws of the State
of Louisiana, regardless of the laws that might otherwise govern under
applicable principles of conflicts of laws thereof.
Section 8.3. Counterparts. This Agreement may be executed in
------------
counterparts, each of which will be deemed an original but all of
which together will constitute one and the same instrument.
Section 8.4. Interpretation. (a) When a reference is made in
--------------
this Agreement to a Section, Exhibit or Schedule, such reference shall
be to a Section of, or an Exhibit or Schedule to, this Agreement
unless otherwise indicated. The table of contents and headings
contained in this Agreement are for reference purposes only and shall
not affect in any way the meaning or interpretation of this Agreement.
Whenever the words "include," "includes" or "including" are used in
this Agreement, they shall be deemed to be followed by the words
"without limitation."
Section 8.5. Entire Agreement; Severability. (a) This
------------------------------
Agreement, including the Exhibits and Schedules hereto, embodies the
entire agreement and understanding of the parties hereto in respect of
the subject matter contained herein. This Agreement supersedes all
prior agreements and understandings (whether written or oral) between
the parties with respect to such subject matter.
(b) If any provision of this Agreement is determined to be
invalid or unenforceable, in whole or in part, it is the parties'
intention that such determination will not be held to affect the
validity or enforceability of any other provision of this Agreement,
which provisions will otherwise remain in full force and effect.
Section 8.6. Amendment and Modification. This Agreement may be
--------------------------
amended or modified only by written agreement of the parties hereto;
provided, however, that there shall be made no amendment that by law
-------- -------
requires approval by the stockholders of a party hereto without the
approval of such stockholders.
Section 8.7. Extension; Waiver. At any time prior to the
-----------------
Closing Date, the parties may (a) extend the time for the performance
of any of the obligations or other acts of the other parties, (b)
waive any inaccuracies in the representations and warranties contained
in this Agreement or in any document delivered pursuant to this
Agreement or (c) waive compliance with any of the agreements or
conditions contained in this Agreement. The failure of a party to
insist upon strict adherence to any term of this Agreement on any
occasion shall not be considered a waiver or deprive that party of the
right thereafter to insist upon strict adherence to that term or any
other term of this Agreement. No waiver of any breach of this
Agreement shall be held to constitute a waiver of any other or
subsequent breach. Any waiver must be in writing.
<PAGE>
Section 8.8. Binding Effect; Benefits. This Agreement will
------------------------
inure to the benefit of and be binding upon the parties hereto and
their respective successors and assigns. Nothing in this Agreement,
express or implied, is intended to confer on any Person other than the
parties hereto and their respective successors and assigns any rights,
remedies, obligations or liabilities under or by reason of this
Agreement.
Section 8.9. Assignability. This Agreement is not assignable
-------------
by any party hereto without the prior written consent of the other
parties.
Section 8.10. Expenses. Each of the parties hereto shall pay
--------
all of its own expenses relating to the transactions contemplated by
this Agreement, including without limitation the fees and expenses of
its own financial, legal and tax advisors.
Section 8.11. Gender and Certain Definitions. All words used
------------------------------
herein, regardless of the number and gender specifically used, shall
be deemed and construed to include any other number, singular or
plural, and any other gender, masculine, feminine or neuter, as the
context requires.
<PAGE>
IN WITNESS WHEREOF, the parties hereto have duly executed this
Agreement as of the date first written above.
SEACOR HOLDINGS, INC.
By:/s/ Milton Rose
--------------------------------
Name: Milton Rose
Title: Vice-President
MCCALL ENTERPRISES, INC.
By:/s/ Milton Rose
---------------------------------
Name: Milton Rose
Title: President
/s/ James A. Colligan
----------------------------------
James A. Colligan
/s/ Nell Colligan
----------------------------------
Nell Colligan
EXHIBIT 2.7
SHARE EXCHANGE AGREEMENT AND
PLAN OF REORGANIZATION
RELATING TO CAMERON CREWS, INC.
by and among
SEACOR HOLDINGS, INC.,
McCALL ENTERPRISES, INC.
and
THE PERSONS LISTED ON THE
SIGNATURE PAGES HEREOF
Dated as of May 31, 1996
<PAGE>
TABLE OF CONTENTS
Page
ARTICLE 1.
DEFINITIONS . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Section 1.1. Definitions . . . . . . . . . . . . . . . . . 2
ARTICLE 2.
THE CLOSING . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
Section 2.1. Closing . . . . . . . . . . . . . . . . . . . 8
ARTICLE 3.
EXCHANGE OF SHARES . . . . . . . . . . . . . . . . . . . . . . . 9
Section 3.1. Exchange of Company Shares . . . . . . . . . 9
Section 3.2. Exchange of SEACOR Shares . . . . . . . . . . 9
Section 3.3. Delivery of Company Shares; Transfer of
Exchanged Shares . . . . . . . . . . . . . 9
Section 3.4. Determination of Final Adjusted Net Assets . 10
Section 3.5. Registration Rights Agreement; Restrictive
Endorsement. . . . . . . . . . . . . . . . 11
ARTICLE 4.
REPRESENTATIONS AND WARRANTIES OF STOCKHOLDERS . . . . . . . . . 11
Section 4.1. Organization and Citizenship . . . . . . . . 11
Section 4.2. Affiliated Entities . . . . . . . . . . . . . 12
Section 4.3. Capitalization . . . . . . . . . . . . . . . 12
Section 4.4. Authority; Enforceable Agreement . . . . . . 12
Section 4.5. No Conflicts or Consents . . . . . . . . . . 13
Section 4.6. Corporate Documents . . . . . . . . . . . . . 13
Section 4.7. Financial Statements; Liabilities . . . . . . 13
Section 4.8. Accounts Receivable . . . . . . . . . . . . . 14
Section 4.9. Absence of Certain Changes or Events . . . . 14
Section 4.10. Contracts . . . . . . . . . . . . . . . . . . 16
Section 4.11. Properties and Leases . . . . . . . . . . . . 17
Section 4.12. Condition of the Company's Assets . . . . . . 18
Section 4.13. Vessels . . . . . . . . . . . . . . . . . . . 18
Section 4.14. Accounting Matters . . . . . . . . . . . . . 18
Section 4.15. Suppliers and Customers . . . . . . . . . . . 18
Section 4.16. Employee . . . . . . . . . . . . . . . . . . 19
<PAGE>
Page
Section 4.17. Employee Benefit Plans. . . . . . . . . . . . 20
Section 4.18. Tax Matters . . . . . . . . . . . . . . . . . 22
Section 4.19. Litigation . . . . . . . . . . . . . . . . . 24
Section 4.20. Insurance . . . . . . . . . . . . . . . . . . 25
Section 4.21. Environmental Compliance . . . . . . . . . . 25
Section 4.22. Compliance With Law; Permits . . . . . . . . 26
Section 4.23. Interests in Clients, Suppliers, Etc. . . . . 27
Section 4.24. Transactions With Related Parties . . . . . . 27
Section 4.25. Broker's and Finder's Fee . . . . . . . . . . 27
Section 4.26. Disclosure . . . . . . . . . . . . . . . . . 27
Section 4.27. Intellectual Property . . . . . . . . . . . . 28
ARTICLE 5.
REPRESENTATIONS AND WARRANTIES OF MCCALL AND SEACOR . . . . . . . 28
Section 5.1. Organization and Citizenship . . . . . . . . 28
Section 5.2. Capitalization . . . . . . . . . . . . . . . 29
Section 5.3. Authority; Enforceable Agreements . . . . . . 29
Section 5.4. No Conflicts or Consents . . . . . . . . . . 30
Section 5.5. Corporate Documents . . . . . . . . . . . . . 31
Section 5.6. SEC Documents; Financial Statements;
Liabilities. . . . . . . . . . . . . . . . 31
Section 5.7. Absence of Certain Changes or Events . . . . 31
Section 5.8. Contracts . . . . . . . . . . . . . . . . . . 32
Section 5.9. Litigation . . . . . . . . . . . . . . . . . 32
Section 5.10. Legality of SEACOR Common Stock . . . . . . . 33
Section 5.11. Broker's and Finder's Fee . . . . . . . . . . 33
ARTICLE 6.
CLOSING CONDITION . . . . . . . . . . . . . . . . . . . . . . . . 33
Section 6.1. Conditions Applicable to All Parties . . . . 33
Section 6.2. Conditions to McCall's Obligations . . . . . 33
Section 6.3. Conditions to Stockholder's Obligations . . . 35
ARTICLE 7.
TERMINATION . . . . . . . . . . . . . . . . . . . . . . . . . . . 36
Section 7.1. Termination . . . . . . . . . . . . . . . . . 36
Section 7.2. Effect of Termination . . . . . . . . . . . . 37
ARTICLE 8.
MISCELLANEOUS . . . . . . . . . . . . . . . . . . . . . . . . . . 37
Section 8.1. Notices . . . . . . . . . . . . . . . . . . . 37
<PAGE>
Page
Section 8.2. Governing Law . . . . . . . . . . . . . . . . 38
Section 8.3. Counterparts . . . . . . . . . . . . . . . . 39
Section 8.4. Interpretation . . . . . . . . . . . . . . . 39
Section 8.5. Entire Agreement; Severability . . . . . . . 39
Section 8.6. Amendment and Modification . . . . . . . . . 39
Section 8.7. Extension; Waiver . . . . . . . . . . . . . . 39
Section 8.8. Binding Effect; Benefits . . . . . . . . . . 40
Section 8.9. Assignability . . . . . . . . . . . . . . . . 40
Section 8.10. Expenses . . . . . . . . . . . . . . . . . . 40
Section 8.11. Gender and Certain Definitions . . . . . . . 40
<PAGE>
EXHIBITS AND SCHEDULES
EXHIBITS
Exhibit A . . . . . . . . Stockholders
Exhibit B . . . . . . . . Investment and Registration Rights
Agreement
Exhibit C . . . . . . . . Opinion of Stockholders' Counsel
Exhibit D . . . . . . . . Indemnification Agreement
Exhibit E . . . . . . . . Opinion of SEACOR's and McCall's Counsel
SCHEDULES(1)
Schedule 4.5(a) . . . . . Certain Conflicts
Schedule 4.5(b) . . . . . Consents/Approval Required
Schedule 4.7 . . . . . . Disclosed Liabilities
Schedule 4.8 . . . . . . Accounts Receivable
Schedule 4.9 . . . . . . Certain Changes
Schedule 4.10(a) . . . . Certain Contracts
Schedule 4.10(b) . . . . Material Contracts
Schedule 4.11(a) . . . . Encumbrances on Property
Schedule 4.11(c) . . . . Above Market Rate Leases
Schedule 4.11(d) . . . . Real Property and Leases
Schedule 4.15 . . . . . . Suppliers and Customers
Schedule 4.16(a) . . . . Certain Employees
Schedule 4.17(a) . . . . Employee Plans
Schedule 4.17(b) . . . . Employee Benefit Arrangements
Schedule 4.17(c) . . . . Modifications to Employee Benefit Plans
and Arrangements
Schedule 4.17(j) . . . . Litigation Re Employee Plan or Benefit
Arrangements
Schedule 4.17(k) . . . . Certain Employees with Rights to Certain
Entitlements
Schedule 4.17(l) . . . . Benefits to Non-employee Stockholders
and Directors
Schedule 4.18(d) . . . . Material Tax Elections
Schedule 4.18(f) . . . . Returns Filed in State and Foreign
Jurisdictions
_______________
(1) All the above Schedules relate to the Cameron Group
unless otherwise indicated.
<PAGE>
Schedule 4.19 . . . . . . Litigation
Schedule 4.20(a) . . . . Insurance Policies
Schedule 4.20(b) . . . . Protection or Indemnity Clubs
Schedule 4.21(a) . . . . Noncompliance with Environmental Laws
Schedule 4.21(b) . . . . Environmental Administrative or Judicial
Proceedings
Schedule 4.21(c) . . . . Above Ground and Underground Tanks
Schedule 4.21(d) . . . . Hazardous Materials
Schedule 4.23 . . . . . . Officers'/Directors' Relationships with
Competitors of the Company
Schedule 4.24(a) . . . . Interested Officers'/Directors'
Transactions
Schedule 4.24(b) . . . . Claims of Certain Officers and Directors
Schedule 4.27 . . . . . . Intellectual Property
Schedule 5.8 . . . . . . Material Contracts of SEACOR
Schedule 5.9 . . . . . . Litigation Involving SEACOR
Schedule 6.3(e) . . . . . Indebtedness
Schedule 6.3(f) . . . . . New Capital Expenditures
NYFS11...:\93\73293\0011\1196\EDG6066S.430
<PAGE>
SHARE EXCHANGE AGREEMENT
-------------------------
AND
----
PLAN OF REORGANIZATION
-----------------------
RELATING TO CAMERON CREWS, INC.
--------------------------------
SHARE EXCHANGE AGREEMENT AND PLAN OF REORGANIZATION, dated as of
May 31, 1996, among SEACOR Holdings, Inc., a Delaware corporation
("SEACOR"), McCall Enterprises, Inc., a Louisiana corporation
("McCall"), and the persons listed on the signature pages hereto
(collectively, "Stockholders", and each a "Stockholder").
W I T N E S S E T H:
-------------------
WHEREAS, McCall is the owner of 39 shares of common stock, par
value $1.00 per share, of Cameron Crews, Inc. (the "Company"; shares
of such common stock of the Company being referred to herein as
"Company Shares"); and
WHEREAS, Stockholders are the owners, in the aggregate, of 56
Company Shares which, together with the Company Shares owned by
McCall, constitute all of the issued and outstanding shares of capital
stock of the Company; and
WHEREAS, SEACOR, SEACOR Enterprises, Inc., a Louisiana
corporation and a direct wholly owned subsidiary of SEACOR ("SEACOR
Enterprises"), and McCall are parties to an Agreement and Plan of
Merger of even date herewith (the "Merger Agreement") pursuant to
which SEACOR Enterprises has on this date been merged with and into
McCall (the "Merger") and, as a result thereof, McCall has become a
direct wholly owned subsidiary of SEACOR; and
WHEREAS, upon the terms and subject to the conditions set forth
herein, Stockholders desire to transfer and assign to McCall, and
McCall desires to acquire from Stockholders, the Company Shares owned
by Stockholders in exchange for SEACOR Shares (as defined in Section
3.2(a)) (the "Acquisition"), which SEACOR Shares constitute the
consideration transferred by McCall to Stockholders as consideration
in respect of the Acquisition; and
WHEREAS, Stockholders, McCall and SEACOR intend that McCall
acquire the Company Shares owned by Stockholders in exchange for
SEACOR Shares in a transaction qualifying as reorganization under
Section 368(a)(1)(B) of the Internal Revenue Code of 1986, as amended
(the "Code");
<PAGE>
NOW, THEREFORE, in consideration of the representations,
warranties and covenants contained herein, the parties agree as
follows:
ARTICLE 1.
DEFINITIONS
Section 1.1. Definitions. As used in this Agreement, the
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following terms when capitalized have the meanings indicated:
"Acquisition" shall have the meaning ascribed to such term in the
premises to this Agreement.
"Adjusted Net Assets" shall mean an amount equal to the assets of
the Company (including, but not limited to, cash and cash equivalents,
marketable securities, deposits, accounts receivable and prepaid
expenses) determined in accordance with GAAP (except as provided in
the provisos to this definition) reduced by the following: (i) the
book value of all personal property (including, without limitation,
vehicles, office equipment and furniture) and improvements; (ii)
appropriate reserves under GAAP; (iii) investments in any of the
Companies or SEAMAC LLC; and (iv) all liabilities (including notes
payable to current stockholders) as determined in accordance with
GAAP; provided, however, that (a) Adjusted Net Assets shall be
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calculated on the assumption that if the Company currently accounts on
a cash basis, it converted to accounting on an accrual basis (and any
Tax liability currently payable as a result of such conversion shall
be taken into account).
"Affiliate" shall have the meaning ascribed to such term by Rule
12b-2 promulgated under the Exchange Act.
"Agreement" shall mean this Share Exchange Agreement and Plan of
Reorganization, including the Schedules and Exhibits hereto, all as
amended or otherwise modified from time to time.
"Arbitrator" shall have the meaning ascribed to such term in
Section 3.4(b).
"Average Market Price" shall mean $35.142, which represents the
average of the daily closing sale price per share of SEACOR Common
Stock on the NASDAQ Stock Market for the 60 consecutive calendar days
that ended on April 16, 1996, the second trading day prior to the date
of signing of a letter of intent with respect to the transactions
contemplated hereby.
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"Benefit Arrangement" means any employment, severance or similar
contract, or any other contract, plan, policy or arrangement (whether
or not written) providing for compensation, bonus, profit-sharing,
stock option or other stock related rights or other forms of incentive
or deferred compensation, vacation benefits, insurance coverage
(including any self-insured arrangement), health or medical benefits,
disability benefits, severance benefits and post-employment or
retirement benefits (including compensation, pension, health, medical
or life insurance benefits), other than the Employee Plans, that (A)
is maintained, administered or contributed to by the employer or the
employer has any obligation or liability (contingent or otherwise) and
(B) covers any employee or former employee or director of the
employer.
"Business Day" shall mean a day other than a Saturday, a Sunday
or a day on which national banks or the NASDAQ Stock Market is closed.
"Closing" shall have the meaning ascribed to such term in Section
2.1.
"Closing Balance Sheet" shall have the meaning ascribed to such
term in Section 3.4(a).
"Closing Date" shall have the meaning ascribed to such term in
Section 2.1.
"Code" shall have the meaning ascribed to such term in the
premises to this Agreement.
"Companies" shall mean McCall Enterprises, Inc., McCall's Boat
Rentals, Inc., Gulf Marine Transportation, Inc., Carroll McCall, Inc.,
McCall Marine Services, Inc., Cameron Boat Rentals, Inc., Gladys
McCall, Inc., Cameron Crews, Inc., Philip A. McCall, Inc., N.F. McCall
Crews, Inc., McCall Crewboats, L.L.C. and McCall Support Vessels, Inc.
"Company Shares" shall have the meaning ascribed to such term in
the premises to this Agreement.
"Contract" means any contract, charter, agreement, lease,
indenture, note, bond, instrument, lien, conditional sales contract,
mortgage, license, franchise, insurance policy, commitment or other
binding understanding or arrangement, whether written or oral.
"Employee Plan" means an employee benefit plan or arrangement as
defined in Section 3(3) of ERISA, that is maintained, administered or
contributed to by the employer or the employer has any obligation or
liability (contingent or otherwise) and covers any employee or former
employee of the employer.
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"Environmental Laws" means all federal, state, local and foreign
laws, common law duties, ordinances, codes, regulations and other
legally binding obligations relating to pollution, the protection of
the environment, human health and safety or natural resources,
including, without limitation, all such laws governing the operation
of business, the generation, use, collection, treatment, storage,
transportation, recovery, removal, discharge or disposal of Hazardous
Substances or wastes and all such laws imposing record-keeping,
maintenance, testing, inspection, notification and reporting
requirements with respect to Hazardous Substances.
"Environmental Permits" shall have the meaning ascribed to such
term in Section 4.21(a).
"ERISA" means the Employee Retirement Income Security Act of
1974, as amended, and the applicable regulations promulgated
thereunder.
"Estimated Adjusted Net Assets" shall mean $-19,595.
"Exchange Act" shall mean the Securities Exchange Act of 1934, as
amended.
"Final Adjusted Net Assets" shall have the meaning ascribed to
such term in Section 3.4(b).
"Fractional Payment" shall have the meaning ascribed to such term
in Section 3.2(b).
"GAAP" shall mean generally accepted accounting principles in the
United States of America as in effect from time to time set forth in
the opinions and pronouncements of the Accounting Principles Board and
the American Institute of Certified Public Accountants and the
statements and pronouncements of the Financial Accounting Standards
Board, or in such other statements by such other entity as may be in
general use by significant segments of the accounting profession,
which are applicable to the circumstances as of the date of
determination.
"Hazardous Substances" means any and all wastes, materials or
substances defined, regulated or classified as "hazardous substances,"
"hazardous wastes," "hazardous constituents" or words of similar
meaning in (i) the Comprehensive Environmental Response, Compensation
and Liability Act of 1980, 42 U.S.C. Sections 9601 et seq., as amended by
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the Superfund Amendments and Reauthorization Act of 1986, and any
amendments thereto and regulations thereunder; (ii) the Resource
Conservation and Recovery Act of 1976, 42 U.S.C. Sections 6901 et seq., as
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amended by the Hazardous and Solid Waste Amendments of 1984, and any
amendments thereto and regulations thereunder; (iii) the Oil Pollution
Act of 1990, 33
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U.S.C. Sections 2701 et seq., and any amendments thereto and regulations
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thereunder; or (iv) any other Environmental Law.
"HSR Act" shall mean the Hart-Scott-Rodino Antitrust Improvements
Act of 1976, as amended.
"Indemnification Agreement" shall have the meaning ascribed to
such term in Section 6.2(g).
"Intellectual Property Right" means any trademark, service mark,
trade name, patent, trade secret, copyright, know-how or other type of
intellectual property right (including any registrations or
applications for registration of any of the foregoing).
"Investment and Registration Rights Agreement" shall have the
meaning ascribed to such term in Section 3.5(a).
"IRS" shall have the meaning ascribed to such term in Section
4.17(a).
"Knowledge of SEACOR" shall mean the actual knowledge of Charles
Fabrikant, Randall Blank or Milton R. Rose (all being executive
officers of SEACOR) without any obligation to conduct any inquiry
outside the ordinary course of business.
"Knowledge of Stockholders" shall mean the actual knowledge of
Norman F. McCall, Joyce C. McCall, William Johnston or Stephanie
Richard without any obligation to conduct any inquiry outside the
ordinary course of business.
"LBCL" shall mean the Business Corporation Law of the State of
Louisiana, as amended.
"Liens" shall mean pledges, liens, encumbrances, rights in rem,
defects, leases, licenses, equities, conditional sales contracts,
charges, claims, encumbrances, security interests, easements,
restrictions, chattel mortgages, mortgages or deeds of trust, of any
kind or nature whatsoever.
"Material Adverse Effect" shall mean, with respect to any party,
a material adverse effect on the financial condition, results of
operations, business or prospects of such party.
"Material Contract" shall have the meaning ascribed to such term
in Section 5.8.
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"McCall Audited Financial Statements" shall mean the audited
combined balance sheet and related combined statements of income,
stockholders' equity and cash flows, and the related notes thereto, of
the Companies as of and for the years ended December 31, 1994 and
1995.
"McCall Financial Statements" shall mean the McCall Audited
Financial Statements and the McCall Interim Financial Statements,
collectively.
"McCall Interim Financial Statements" shall mean the unaudited
combined balance sheet, and the related unaudited combined statements
of income and cash flows, of the Companies as of and for the three-
month period ended March 31, 1996.
"McCall Latest Balance Sheet" shall mean the combined balance
sheet of the Companies included in the McCall Interim Financial
Statements.
"Merger" shall have the meaning ascribed to such term in the
premises to this Agreement.
"Merger Agreement" shall have the meaning ascribed to such term
in the premises to this Agreement.
"Multiemployer Plan" means a plan or arrangement as defined in
Section 4001(a)(3) and 3(37) of ERISA.
"Permitted Liens" shall mean any mechanic's, worker's,
materialmen's, maritime or other liens arising as a matter of law in
the ordinary course of business consistent with past practice.
"Person" shall mean an individual, firm, corporation, general or
limited partnership, limited liability company, limited liability
partnership, joint venture, trust, governmental authority or body,
association, unincorporated organization or other entity.
"Pre-Closing Periods" shall mean all tax periods ending at or
before the Closing Date and, with respect to any tax period that
includes but does not end at the Closing Date, the portion of such
period that ends at and includes the Closing Date.
"Registration Statement" shall mean the registration statement on
Form S-3 to be filed by SEACOR with the SEC for the purpose, among
other things, of registering the SEACOR Shares which will be issued to
the Stockholders following consummation of the transactions
contemplated thereby.
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"Returns" shall mean all returns, reports, estimates,
declarations, information return, statement or other similar documents
relating to Taxes, including any schedule or attachment thereto, and
including any amendment thereof.
"SEACOR Affiliated Group" shall mean SEACOR and its subsidiaries
other than the Companies.
"SEACOR Audited Financial Statements" shall mean the audited
consolidated balance sheets, and the related consolidated statements
of earnings, stockholders' equity and cash flows, and the related
notes thereto, of SEACOR and its subsidiaries as of and for the years
ended December 31, 1994 and 1995.
"SEACOR Common Stock" shall mean shares of common stock, $.01 par
value per share, of SEACOR.
"SEACOR Financial Statements" shall mean the SEACOR Audited
Financial Statements and the SEACOR Interim Financial Statements.
"SEACOR Interim Financial Statements" shall mean the unaudited
consolidated balance sheet, and the related consolidated unaudited
statements of earnings and cash flows, of SEACOR and its subsidiaries
as of and for the three month period ended March 31, 1996.
"SEACOR Latest Balance Sheet" shall mean the consolidated balance
sheet included in the SEACOR Interim Financial Statements.
"SEACOR SEC Documents" shall have the meaning ascribed to such
term in Section 5.6(a).
"SEACOR Shares" shall have the meaning ascribed to such term in
Section 3.2(a).
"SEC" shall mean the Securities and Exchange Commission of the
United States.
"Securities Act" shall mean the Securities Act of 1933, as
amended.
"Stockholder Representative" shall mean Norman F. McCall, who has
been appointed by the unanimous written consent of the Stockholders as
their representative for purposes of Section 3.4 hereof or any
successor as Stockholder Representative appointed in accordance with
the terms of the Indemnification Agreement.
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"Taxes" means all taxes, charges, fees, imposts, levies or other
assessments, including, without limitation, all net income, gross
receipts, sales, use, ad valorem, value added, transfer, franchise,
profits, inventory, capital stock, license, withholding, payroll,
employment, social security, unemployment, excise, severance, stamp,
occupation, property taxes, customs duties, fees, assessments and
charges of any kind whatsoever, together with any interest and any
penalties, additions to tax or additional amounts imposed by any
taxing authority (domestic or foreign) and any interest or penalties
imposed with respect to the filing, obligation to file or failure to
file any Return, and shall include any transferee liability in respect
of Taxes.
"Termination Date" shall have the meaning ascribed to such term
in Section 7.1(c).
"Undisclosed Liabilities" shall have the meaning ascribed to such
term in Section 4.7.
ARTICLE 2.
THE CLOSING
Section 2.1. Closing. The closing of the transactions
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contemplated herein (the "Closing") will take place, assuming
satisfaction or waiver of each of the conditions set forth in
Article 6 hereof, at the offices of Stockwell, Sievert, Viccellio,
Clements & Shaddock at 1 Lakeside Plaza, 4th Floor, Lake Charles,
Louisiana, at 10:00 A.M. (Louisiana Time) on a date to be mutually
agreed upon between the parties, which shall be no later than the
third Business Day after satisfaction of the latest to occur of the
conditions set forth in Article 6 (or waiver thereof by the party
entitled to waive the same), or if no date has been agreed to, on any
date specified by one party to the others upon five days' notice
following satisfaction (or waiver) of such conditions (the date of the
Closing being referred to herein as the "Closing Date"). At the
Closing, the parties shall deliver the documents, certificates and
opinions required to be delivered by Article 6 hereof and provide
proof or indication of the satisfaction or waiver of each of the
conditions set forth in Article 6 hereof.
ARTICLE 3.
EXCHANGE OF SHARES
Section 3.1. Exchange of Company Shares. Upon the terms and
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subject to the conditions set forth in this Agreement, each of the
Stockholders hereby agrees to assign and transfer to McCall, and
McCall hereby agrees to acquire from each of the Stockholders, on the
Closing Date, the Company Shares owned by such Stockholder.
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Section 3.2. Exchange of SEACOR Shares. (a) Upon the terms and
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subject to the conditions set forth in this Agreement, McCall agrees
to deliver, and SEACOR agrees to cause McCall to deliver, to each of
the Stockholders in exchange for each Company Share owned by such
Stockholder, as set forth on Exhibit A hereto, such number of fully
paid and nonassessable shares of SEACOR Common Stock ("SEACOR Shares")
as shall be equal to the quotient obtained by dividing (A) the Total
Exchanged Shares (as hereinafter defined) by (B) 56, which is
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represented by Stockholders to be the number of Company Shares owned
by the Stockholders on the date hereof (the "Exchanged Shares"). For
purposes hereof, the "Total Exchanged Shares" shall mean a number of
shares of SEACOR Common Stock equal to the quotient obtained by
dividing (1) the sum of $14,738 plus 58.947% of the amount, if any, by
which the Final Adjusted Net Assets exceeds the Estimated Adjusted Net
Assets or less 58.947% of the amount, if any, by which the Estimated
Adjusted Net Assets exceeds the Final Adjusted Net Assets, by (2) the
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Average Market Price.
(b) In lieu of the issuance of fractional shares of SEACOR
Common Stock, each of the Stockholders shall be entitled to receive a
cash payment (without interest) (each a "Fractional Payment" and,
collectively, the "Fractional Payments") equal to the fair market
value of a fraction of a share of SEACOR Common Stock to which such
Stockholder would be entitled to but for this provision. For purposes
of calculating such cash payment, the fair market value of a fraction
of a share of SEACOR Common Stock shall be such fraction multiplied by
the Average Market Price.
Section 3.3. Delivery of Company Shares; Transfer of Exchanged
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Shares. On the Closing Date, each Stockholder shall deliver to McCall
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certificates representing the number of Company Shares set forth
opposite such Stockholder's name on Exhibit A hereto, duly endorsed in
blank or accompanied by stock transfer powers duly executed in blank
and with all requisite stock transfer tax stamps attached. As soon as
practicable after the determination of Final Adjusted Net Assets,
McCall shall deliver the SEACOR Shares and the Fractional Payments
required under this Agreement to the Stockholders.
Section 3.4. Determination of Final Adjusted Net Assets. (a)
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Within 60 days after the Closing Date, McCall shall prepare in
accordance with GAAP and deliver to the Stockholder Representative, a
closing date balance sheet for the Company as of the Closing Date (the
"Closing Balance Sheet"), which shall be accompanied by a computation
of the Adjusted Net Assets based thereon.
(b) The Stockholder Representative shall have a period of
15 days to review the Closing Balance Sheet and the accompanying
calculation of the Adjusted Net Assets following delivery thereof by
McCall. During such period, McCall shall afford the Stockholder
Representative access to any of its books, records and work papers
necessary to
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enable the Stockholder Representative to review the Closing Balance
Sheet and the accompanying calculation of the Adjusted Net Assets.
The Stockholder Representative may dispute any amounts reflected in
the Adjusted Net Assets by giving notice in writing to McCall
specifying each of the disputed items and setting forth in reasonable
detail the basis for such dispute. Failure by the Stockholder
Representative to dispute the amounts reflected in the Adjusted Net
Assets within 15 days of delivery of the Closing Balance Sheet by
McCall shall be deemed an acceptance thereof by the Stockholder
Representative. If, within 30 days after delivery by the Stockholder
Representative to McCall of any notice of dispute in accordance with
this Section 3.4(b), the Stockholder Representative and McCall are
unable to resolve all of such disputed items, then any remaining items
in dispute shall be submitted to an independent nationally recognized
accounting firm selected in writing by McCall and the Stockholder
Representative or, if McCall and the Stockholder Representative fail
or refuse to select such a firm within ten Business Days after request
therefor by McCall or the Stockholder Representative, such an
independent nationally recognized accounting firm shall be selected in
accordance with the rules of the American Arbitration Association (the
"Arbitrator"). The Arbitrator shall determine the remaining disputed
items and report to McCall and the Stockholder Representative with
respect to such items. The Arbitrator's decision shall be final,
conclusive and binding on all parties. The fees and disbursements of
the Arbitrator shall be borne equally by the Stockholders and McCall.
The Adjusted Net Assets if undisputed or deemed undisputed or as
determined by the mutual agreement of McCall and the Stockholder
Representative or by the Arbitrator in accordance with the procedure
outlined above shall be the "Final Adjusted Net Assets."
Section 3.5. Registration Rights Agreement; Restrictive
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Endorsement. (a) The issuance of the SEACOR Shares to Stockholders
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pursuant to this Agreement will not be registered under the Securities
Act, or any state securities laws, in reliance upon certain exemptions
from registration contained therein and, therefore, will be subject to
restrictions on transfer. Pursuant to the terms and conditions of the
Investment and Registration Rights Agreement, in substantially the
form attached hereto as Exhibit B (the "Investment and Registration
Rights Agreement"), Stockholders shall have certain rights to require
the registration of the resale by Stockholders of their SEACOR Shares.
Stockholders are the record and beneficial owners of such numbers of
Company Shares as are set forth opposite their respective names on
Exhibit A hereto.
(b) Each certificate representing of SEACOR Shares to be
issued to the Stockholders pursuant to this Agreement shall be stamped
with a legend in substantially the following form:
"The Shares represented by this certificate have not been
registered under the Securities Act of 1933, as amended, or any
state securities law, and may not be
<PAGE>
transferred, sold or otherwise disposed of in the absence of such
registration or an exemption therefrom. Such Shares may be
transferred only in compliance with the conditions specified in
the Investment and Registration Rights Agreement, dated as of May
31, 1996, between the Issuer and the other entities and
individuals party thereto, a complete and correct copy of which
is available for inspection at the principal office of the Issuer
and will be furnished to the Holder hereof upon written request
and without charge."
ARTICLE 4.
REPRESENTATIONS AND WARRANTIES OF STOCKHOLDERS
Stockholders represents and warrants to SEACOR and McCall as
follows:
Section 4.1. Organization and Citizenship. (a) The Company is
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a corporation duly organized, validly existing and in good standing
under the laws of the state of its incorporation and has all corporate
power and authority to carry on its business as now being conducted
and to own, lease and operate its properties. The Company is duly
qualified to do business and is in good standing in each state and
foreign jurisdiction in which the character or location of the
properties owned or leased by it or the nature of the business
conducted by it makes such qualification necessary, except where the
failure to be so qualified or in good standing would not have a
Material Adverse Effect on the Company.
(b) The Company and its stockholders are and at all times
have been citizens of the United States within the meaning of Section
2 of the Shipping Act, 1916, as amended, for the purposes of owning
and operating vessels in the U.S. coastwise trade. None of the
Stockholders is a "foreign person" within the meaning of Section 1445
of the Code.
Section 4.2. Affiliated Entities. The Company does not,
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directly or indirectly, own of record or beneficially, or have the
right or obligation to acquire, any outstanding securities or other
interest in any Person.
Section 4.3. Capitalization. The authorized capital stock of
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the Company consists exclusively of 1,000 shares of common stock,
$1.00 par value per share, of which 96.24 shares were issued and
outstanding and 3.76 shares were held in its treasury as of the date
hereof. All issued and outstanding shares of capital stock of the
Company are validly issued, fully paid, non-assessable and were not
issued in violation of any preemptive or similar rights. The
Stockholders are the record and beneficial owners of such number of
Company Shares as set forth opposite their respective names on Exhibit
A hereto, which Company Shares, together with the Company Shares owned
by McCall, represent all of the issued and
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outstanding shares of capital stock of the Company. There is no
existing subscription, option, warrant, call, right, commitment or
other agreement to which the Company is a party requiring, and there
are no derivative securities of the Company outstanding which upon
conversion, exercise or exchange would require, directly or
indirectly, the issuance of any additional shares of the Company's
capital stock or other securities convertible, exchangeable or
exercisable into or for shares of the Company's capital stock or any
other equity security of the Company, and there are no outstanding
contractual obligations of the Company to repurchase, redeem or
otherwise acquire any outstanding share of the Company's capital
stock.
Section 4.4. Authority; Enforceable Agreement. Each of the
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Stockholders has the requisite power and authority to enter into this
Agreement and to consummate the transactions contemplated hereby.
This Agreement has been duly executed and delivered by each of the
Stockholders and (assuming due execution and delivery by the other
parties hereto) constitutes a valid and binding obligation of such
Stockholder, enforceable against such Stockholder in accordance with
its terms, except as such enforceability may be limited by bankruptcy,
insolvency, reorganization or similar laws affecting creditors' rights
generally. The other agreements entered, or to be entered, into by
each of the Stockholders in connection with this Agreement have been,
or will be, duly executed and delivered by each of the Stockholders
and (assuming due execution and delivery by the other parties thereto)
constitute, or will constitute, valid and binding obligations of such
Stockholder, enforceable against such Stockholder in accordance with
their terms, except as such enforceability may be limited by
bankruptcy, insolvency, reorganization or similar laws affecting
creditors' rights generally.
Section 4.5. No Conflicts or Consents. (a) Except as set
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forth on Schedule 4.5(a), neither the execution, delivery nor
performance of this Agreement by any of the Stockholders nor the
consummation of the transactions contemplated hereby will (i) violate,
conflict with, or result in a breach of any provision of, constitute a
default (or an event that, with notice or lapse of time or both, would
constitute a default) under, result in the termination of, or
accelerate the performance required by, or result in the creation of
any adverse claim against any of the properties or assets of the
Company under (A) the certificate of incorporation, by-laws or any
other organizational documents of the Company, or (B) any note, bond,
mortgage, indenture, deed of trust, lease, license, agreement or other
instrument or obligation to which the Company is a party, or by which
the Company or any of its assets are bound, or (ii) violate any order,
writ, injunction, decree, judgment, statute, rule or regulation of any
governmental body to which the Company is subject or by which the
Company or any of its assets are bound.
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(b) Except as set forth on Schedule 4.5(b), no consent,
approval, order, permit or authorization of, or registration,
declaration or filing with, any Person or of any government or any
agency or political subdivision thereof is required for the execution,
delivery and performance by any of the Stockholders of this Agreement
and the covenants and transactions contemplated hereby or for the
execution, delivery and performance by any of the Stockholders of any
other agreements entered, or to be entered, into by any of the
Stockholders in connection with this Agreement.
Section 4.6. Corporate Documents. The Stockholders have
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delivered to McCall true and complete copies of the Company's
certificate of incorporation and by-laws, as amended or restated
through the date of this Agreement. The minute books of the Company
contain complete and accurate records of all corporate actions of the
equity owners of the various entities and of the boards of directors
or other governing bodies, including committees of such boards or
governing bodies. The stock transfer records of the Company contain
complete and accurate records of all issuances and redemptions of
capital stock by the Company.
Section 4.7. Financial Statements; Liabilities. The McCall
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Financial Statements, to the extent that they include information with
respect to the Company, have been prepared in accordance with GAAP
applied on a basis consistent with prior periods and present fairly
the financial position of the Company as at the dates of the balance
sheet included therein and the results of operations and cash flows
for the periods then ended, except, in the case of the McCall Interim
Financial Statements, as permitted by Rule 10-01 of Regulation S-X of
the SEC. The McCall Interim Financial Statements reflect all
adjustments (consisting only of normal, recurring adjustments) that
are necessary for a fair statement of the results of operations of the
members of the Company for the interim periods presented therein.
Except as set forth on Schedule 4.7, the Company does not have, nor
are any of its respective assets subject to, any liability,
commitment, debt or obligation (of any kind whatsoever whether
absolute or contingent, accrued, fixed, known, unknown, matured or
unmatured) ("Undisclosed Liabilities"), except (i) as and to the
extent reflected on the McCall Latest Balance Sheet, (ii) as may have
been incurred or may have arisen since the date of the McCall Latest
Balance Sheet in the ordinary course of business and that are not
material individually or in the aggregate or (iii) as permitted by
this Agreement.
Section 4.8. Accounts Receivable. All of the accounts
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receivable reflected on the McCall Latest Balance Sheet or created
thereafter, which relate to the Company, have arisen only from bona
fide transactions in the ordinary course of business, represent valid
obligations owing to the Company and have been accrued and recorded in
accordance with GAAP. Except as set forth on Schedule 4.8, such
accounts receivable either have been collected in full or will be
collectible in full when due, without any counterclaims, set-offs or
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other defenses and without provision for any allowance for
uncollectible accounts other than such allowance as appears on the
McCall Latest Balance Sheet.
Section 4.9. Absence of Certain Changes or Events. Except as
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set forth on Schedule 4.9 or as contemplated by this Agreement, since
the date of the McCall Latest Balance Sheet, the Company has conducted
its business only in the ordinary course, and has not:
(a) amended its certificate of incorporation, by-laws or
similar organizational documents;
(b) incurred any liability or obligation of any nature
(whether absolute or contingent, accrued, fixed, known, unknown,
matured or unmatured), except in the ordinary course of business;
(c) suffered or permitted any of its assets to be or remain
subject to any lien other than those disclosed on Schedule 4.11(a) or
4.13(a) and that collateralize indebtedness reflected on the McCall
Latest Balance Sheet and Liens for Taxes accrued but not yet payable
and Permitted Liens;
(d) merged or consolidated with another Person or acquired
or agreed to acquire any Person or sold, leased, transferred or
otherwise disposed of any assets except for fair value in the ordinary
course of business;
(e) made any capital expenditure or commitment therefor,
except in the ordinary course of business;
(f) declared or paid any dividend or made any distribution
with respect to any of its equity interests, or redeemed, purchased or
otherwise acquired any of its equity interests, or issued, sold or
granted any equity interests or any option, warrant or other right to
purchase or acquire any such interest;
(g) adopted any employee benefit plan or made any change in
any existing employee benefit plans or made any bonus or profit
sharing distribution or payment of any kind;
(h) increased indebtedness for borrowed money, or made any
loan to any Person, other than through the issuance of standby or
performance letters of credit issued in the ordinary course of
business;
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(i) made any change affecting any banking, safe deposit or
power of attorney arrangements;
(j) written off as uncollectible any notes or accounts
receivable, except for notes or accounts receivable in the ordinary
course of business charged to applicable allowances reflected in the
McCall Latest Balance Sheet, and none of which individually or in the
aggregate is material to the Company;
(k) entered into or amended any employment, severance or
similar agreement or arrangement with any director or employee, or
granted any increase in the rate of wages, salaries, bonuses, employee
advances or other compensation or benefits of any executive officer or
other employee, other than any such increase that is both in the
ordinary course of business consistent with past practice and in an
amount such that, after giving effect thereto, aggregate employee
compensation expense (considered on an annualized basis) does not
exceed 105% of the aggregate employee compensation expense for the
Company's fiscal year ended December 31, 1995;
(l) cancelled, waived, released or otherwise compromised
any debt, claim or right, except as permitted under clause (j);
(m) made any change in any method of accounting principle
or practice;
(n) suffered the termination, suspension or revocation of
any license or permit necessary for the operation of its business;
(o) entered into any transaction other than on an arm's-
length basis;
(p) suffered any damage, destruction or loss (whether or
not covered by insurance) which has had or could reasonably be
expected to have a Material Adverse Effect on the Company; or
(q) agreed, whether or not in writing, to do any of the
foregoing.
Section 4.10. Contracts. (a) Except as set forth on Schedule
---------
4.10(a), the Company is not a party to: (i) any collective bargaining
agreement; (ii) any Contract with any employee; (iii) any Contract,
containing any covenant limiting its freedom to engage in any line of
business or to compete with any Person; (iv) any Contract containing
an obligation to guarantee or indemnify any other Person; (v) any
joint venture, partnership or similar Contract involving a sharing of
profits or expenses; (vi) any Contract under which any member of the
Company is the licensee or licensor of patents, copyrights,
trademarks,
<PAGE>
applications for any of the foregoing or any other intellectual
property rights of any nature; (vii) any Contract with any of its
Affiliates; (viii) any Contract under which it has borrowed any money
or issued any note, bond or other evidence of indebtedness for
borrowed money or guaranteed indebtedness for money borrowed by
others; (ix) any hedge, swap, exchange, futures or similar Contracts;
or (x) any Contract that has had or may have a Material Adverse Effect
on the Company.
(b) Schedule 4.10(b) contains a list and brief description
(including the names of the parties and the date and nature of the
agreement) of each material Contract to which the Company is a party.
There is no existing breach by the Company of any of its material
Contracts and there has not occurred any event that with the lapse of
time or the giving of notice or both would constitute such a breach.
There is not pending nor, to the Knowledge of Stockholders,
threatened, any claim that the Company, has breached any of the terms
or conditions of any of its material Contracts and, to the Knowledge
of Stockholders, no other parties to such Contracts have breached any
of their terms or conditions. SEACOR has been provided with a
complete and accurate copy of each Contract listed on Schedule
4.10(b).
Section 4.11. Properties and Leases. (a) Except for assets
---------------------
disposed of for adequate consideration in the ordinary course of
business and which are not material to the operation of its business,
the Company has good and valid title to all real property and all
other properties and assets accounted for as belonging to the Company
in the McCall Latest Balance Sheet free and clear of all Liens, except
for (i) Liens that secure indebtedness that is properly reflected in
the McCall Latest Balance Sheet; (ii) Liens for Taxes accrued but not
yet payable; (iii) Permitted Liens, provided that the obligations
collateralized by such Permitted Liens are not delinquent or are being
contested in good faith; (iv) such imperfections of title and
encumbrances, if any, as do not in the aggregate materially detract
from the value or materially interfere with the present use of any
such properties or assets or the potential sale of any such properties
and assets; and (v) capital leases and leases of such properties, if
any, to third parties for fair and adequate consideration. Schedule
4.11(a) contains a list of (i) all Liens (other than Permitted Liens
and Liens for Taxes accrued but not yet payable) on property of the
Company collateralizing indebtedness on the McCall Latest Balance
Sheet and (ii) certain items of personal property not owned by the
Company. The Company owns, or has valid leasehold interests in, all
properties and assets used in the conduct of its business.
(b) With respect to each lease of real property and
material amount of personal property to which the Company is a party,
(i) the Company has a valid leasehold interest in such real property
or personal property; (ii) such lease is in full force and effect in
accordance with its terms; (iii) all rents and other monetary amounts
that have become due
<PAGE>
and payable thereunder have been paid in full; (iv) no waiver,
indulgence or postponement of the obligations thereunder has been
granted by the other party thereto; (v) there exists no material
default (or an event that, with notice or lapse of time or both would
constitute a material default) under such lease; (vi) the Company has
not violated any of the terms or conditions under any such lease;
(vii) to the Knowledge of Stockholders, there has been no
(A) condition or covenant to be observed or performed by any other
party under any such lease that has not been fully observed and
performed and (B) in the case of each prime lease concerning demised
premises subleased to the Company, condition or covenant to be
observed or performed by each party thereto that has not been fully
observed and performed and there does not exist any event of default
or event, occurrence, condition or act that, with the giving of
notice, the lapse of time or the happening of any further event or
condition, would become a default under any such prime lease; and
(viii) the transactions described in this Agreement will not
constitute a default under or cause for termination or modification of
such lease.
(c) Except as disclosed on Schedule 4.11(c), the rent
charged to the Company under any lease between the Company and any of
its Affiliates is at or below the market rate and any such lease
contains such other terms and conditions that are no less favorable to
the Company than would be obtainable in an arms-length transaction
with an independent third party lessor.
(d) Schedule 4.11(d) contains a list of all real property
owned by the Company and a list of all leases to which the Company is
a party, which list includes a reasonable description of the location
and approximate square footage of each property, whether owned or
leased, and the term of each such lease, including all renewal
options. Complete and correct copies of each lease has been delivered
to McCall.
Section 4.12. Condition of the Company's Assets. All of the
---------------------------------
tangible assets of the Company are currently in good and usable
condition, ordinary wear and tear excepted, and are being used in the
business of the Company. There are no defects in such assets or other
conditions that in the aggregate have or would be reasonably likely to
have, a Material Adverse Effect on the Company. Such assets and the
other properties being leased by a member of the Company pursuant to
the leases described on Schedule 4.11(d) constitute all of the
operating assets being utilized by the Company in the conduct of its
business and such assets are sufficient in quantity and otherwise
adequate for the operations of the Company as currently conducted.
Section 4.13. Vessels. (a) The Company does not own, lease,
-------
charter or manage any vessels.
<PAGE>
Section 4.14. Accounting Matters. To the Knowledge of
------------------
Stockholders, neither the Company nor any of its Affiliates has taken
or agreed to take any action that (without giving effect to any action
taken or agreed to be taken by SEACOR or any of its Affiliates) would
prevent SEACOR from accounting for the business combination to be
effected by the Acquisition as a pooling-of-interests.
Section 4.15. Suppliers and Customers. To the Knowledge of
-----------------------
Stockholders and except as disclosed on Schedule 4.15, (a) no supplier
providing products, materials or services to the Company intends to
cease selling such products, materials or services to the Company or
to limit or reduce such sales to the Company or materially alter the
terms or conditions of any such sales and (b) no customer of the
Company intends to terminate, limit or reduce its or their business
relations with the Company.
Section 4.16. Employee Matters. (a) Schedule 4.16(a) sets
----------------
forth the name, title, current annual compensation rate (including
bonus and commissions, but separately identifying salary or hourly
rate), accrued bonus, accrued sick leave, accrued severance pay and
accrued vacation benefits of each officer of the Company, and a list
of all employment, consulting, employee confidentiality or similar
Contracts to which the Company is a party. Copies of organizational
charts, any employee handbook(s), and any reports and/or plans
prepared or adopted pursuant to the Equal Employment Opportunity Act
of 1972, as amended, have been provided to SEACOR.
(b) Each of the following is true with respect to the
Company:
(i) The Company is in compliance with all applicable laws
respecting employment and employment practices, terms and
conditions of employment, wages and hours and occupational safety
and health, and is not engaged in any unfair labor practice
within the meaning of Section 7 of the National Labor Relations
Act, and there is no proceeding pending or, to the Knowledge of
Stockholders, threatened, or, to the Knowledge of Stockholders,
any pending or threatened investigation against it relating to
any thereof, and, to the Knowledge of Stockholders, there is no
basis for any such proceeding or investigation;
(ii) to the Knowledge of Stockholders, none of the employees
of any such member is a member of, or represented by, any labor
union and there are no efforts being made to unionize any of such
employees; and
(iii) to the Knowledge of Stockholders, there are no charges
or complaints of, or proceedings involving, discrimination or
harassment (including but not limited to discrimination or
harassment based upon sex, age, marital status, race, religion,
<PAGE>
color, creed, national origin, sexual preference, handicap or
veteran status) pending or, to the Knowledge of Stockholders,
threatened, nor, to the Knowledge of Stockholders, is there any
pending or threatened investigation, including, but not limited
to, investigations before the Equal Employment Opportunity
Commission or any federal, state or local agency or court, with
respect to any such member.
Section 4.17. Employee Benefit Plans. With respect to the
----------------------
Company:
(a) Schedule 4.17(a) lists each Employee Plan that the
Company maintains, administers, contributes to, or has any contingent
liability with respect to. The Stockholders have provided a true and
complete copy of each such Employee Plan, current summary plan
description, (and, if applicable, related trust documents) and all
amendments thereto and written interpretations thereof together with
(i) the three most recent annual reports prepared in connection with
each such Employee Plan (Form 5500 including, if applicable, Schedule
B thereto); (ii) the most recent actuarial report, if any, and trust
reports prepared in connection with each Employee Plan; (iii) all
material communications received from or sent to the Internal Revenue
Service ("IRS") or the Department of Labor within the last two years
(including a written description of any material oral communications);
(iv) the most recent IRS determination letter with respect to each
Employee Plan and the most recent application for a determination
letter; (v) all insurance contracts or other funding arrangements; and
(vi) the most recent actuarial study of any post-employment life or
medical benefits provided, if any.
(b) Schedule 4.17(b) identifies each Benefit Arrangement
that the Company maintains, administers, contributes to, or has any
contingent liability with respect to. The Stockholders have furnished
to SEACOR copies or descriptions of each Benefit Arrangement and any
of the information set forth in Section 4.17(a) applicable to any such
Benefit Arrangement. Each Benefit Arrangement has been maintained and
administered in substantial compliance with its terms and with the
requirements (including reporting requirements) prescribed by any and
all statutes, orders, rules and regulations which are applicable to
such Benefit Arrangement.
(c) Benefits under any Employee Plan or Benefit Arrangement
are as represented in such documents and have not been increased or
modified (whether written or not written) subsequent to the dates of
such documents. Except as disclosed on Schedule 4.17(c), the Company
has not communicated to any employee or former employee any intention
or commitment to modify any Employee Plan or Benefit Arrangement or to
establish or implement any other employee or retiree benefit or
compensation arrangement.
<PAGE>
(d) No Employee Plan is (i) a Multiemployer Plan, (ii) a
Title IV Plan or (iii) maintained in connection with any trust
described in Section 501(c)(9) of the Code. The Company has never
maintained or become obligated to contribute to any employee benefit
plan (i) that is subject to Title IV of ERISA, (ii) to which Section
412 of the Code applies, or (iii) that is a Multiemployer Plan. The
Company has not within the last five years engaged in, or is a
successor corporation to an entity that has engaged in, a transaction
described in Section 4069 of ERISA.
(e) Each Employee Plan which is intended to be qualified
under Section 401(a) of the Code is so qualified and has been so
qualified during the period from its adoption to date, and no event
has occurred since such adoption that would adversely affect such
qualification and each trust created in connection with each such
Employee Plan forming a part thereof is exempt from tax pursuant to
Section 501(a) of the Code. A favorable determination letter has been
issued by the IRS as to the qualification of each such Employee Plan
under the Code and to the effect that each such trust is exempt from
taxation under Section 501(a) of the Code. Except as disclosed on
Schedule 4.17(e), each Employee Plan has been maintained and
administered in compliance with its terms and with the requirements
(including reporting requirements) prescribed by any and all
applicable statutes, orders, rules and regulations, including but not
limited to ERISA and the Code.
(f) Full payment has been made of all amounts which the
Company is or has been required to have paid as contributions to or
benefits due under any Employee Plan or Benefit Arrangement under
applicable law or under the terms of any such plan or any arrangement.
(g) Neither the Company nor any of its directors, officers
or employees has engaged in any transaction with respect to an
Employee Plan that could subject the Company to a tax, penalty or
liability for a prohibited transaction, as defined in Section 406 of
ERISA or Section 4975 of the Code. None of the assets of any Employee
Plan are invested in employer securities or employer real property.
(h) To the Knowledge of Stockholders, there are no facts or
circumstances that give rise to any liability under Title I of ERISA.
(i) The Company does not have any current or projected
liability in respect of post-retirement or post-employment medical,
death or life insurance, welfare benefits for retired, current or
former employees, except as required to avoid excise tax under Section
4980B of the Code.
<PAGE>
(j) Except as disclosed on Schedule 4.17(j), there is no
litigation, administrative or arbitration proceeding or other dispute
pending or threatened that involves any Employee Plan or Benefit
Arrangement which could reasonably be expected to result in a
liability to the Company or McCall.
(k) Except as disclosed on Schedule 4.17(k), no employee or
former employee of the Company will become entitled to any bonus,
employee advance, retirement, severance, job security or similar
benefit or enhanced benefit (including acceleration of an award,
vesting or exercise of an incentive award) or any fee or payment of
any kind solely as a result of any of the transactions contemplated
hereby and no such disclosed payment constitutes a parachute payment
described in Section 280G of the Code.
(l) Except as disclosed in Schedule 4.17(l), no Employee
Plan provides health, medical, death or survivor benefits to any
stockholders or directors who are not employees.
Section 4.18. Tax Matters. Each of the following is true with
-----------
respect to the Company to the extent applicable to such member:
(a) All Returns have been, or will be, timely filed by (or
on behalf of) the Company in accordance with all applicable laws; all
Taxes that are due, or claimed by any taxing authority to be due from
or with respect to the Company have been or will be timely paid by (or
on behalf of) the Company; all Returns of (or including) the Company
have been properly completed in compliance with all applicable laws
and regulations and are true, complete and correct in all material
respects and such Returns are not subject to penalties under Section
6662 of the Code (or any corresponding provision of state, local or
foreign tax law). With respect to any period for which Returns have
not yet been filed, or for which Taxes are not yet due or owing, the
Company has made due and sufficient current accruals for such Taxes as
reflected on its books (including, without limitation, the McCall
Latest Balance Sheet);
(b) There are no outstanding agreements, consents, waivers
or arrangements extending the statutory period of limitation
applicable (A) to file any Return or (B) for assessment or collection
of any Taxes due from or with respect to the Company for any period
prior to the date hereof, and the Company has not been requested to
enter into any such agreement, consent, waiver or arrangement;
(c) There are no Liens with respect to Taxes (other than
for current Taxes not yet due and payable) upon any of the assets of
the Company;
<PAGE>
(d) All material elections with respect to Taxes affecting
the Company are set forth in Schedule 4.18(d);
(e) All Taxes that the Company is required by law to
withhold or collect (including Taxes required to be withheld and
collected from employee wages, salaries and other compensation) have
been duly withheld or collected, and have been timely paid over to the
appropriate governmental authorities;
(f) The United States federal income tax Returns of (or
including) the Company have been examined by the IRS or the periods
covered by such Returns have been closed by applicable statute of
limitations, for all periods through December 31, 1992. The state,
local and foreign Returns of (or including) the Company have been
examined by the relevant taxing authorities, or the periods covered by
such Returns have been closed by applicable statute of limitations,
for all periods through December 31, 1992. All deficiencies claimed,
proposed or asserted or assessments made as a result of such
examinations or any other examinations of any member of the Company
have been fully paid or fully settled, and no issue has been raised by
any federal, state, local or foreign taxing authority in any such
examination which, by application of the same or similar principles,
could reasonably be expected to result in a proposed deficiency for
any subsequent taxable period. Schedule 4.18(f) sets forth each state
and foreign jurisdiction in which the Company has, in the last three
years, filed a Return;
(g) No Tax audits or other administrative proceedings are
pending with regard to any Taxes for which the Company may be liable
and the Company has not received any notice from any taxing authority
that it intends to conduct such an audit or commence such an
administrative proceeding;
(h) No claim has been made by a taxing authority in a
jurisdiction where the Company does not file Returns that the Company
is or may be subject to taxation by that jurisdiction;
(i) The Company is not a party to any agreement, contract,
arrangement or plan that would result, separately or in the aggregate,
in the payment of any "parachute payments" within the meaning of Code
Section 280G (or any comparable provision of state or local law);
(j) The Company has not agreed, nor is it required, to make
any adjustment under Code Section 481(a) (or any comparable provision
of state or local law) by reason of a change in any accounting method
or otherwise, and there is no application pending with any taxing
authority requesting permission for any changes in any accounting
<PAGE>
method of the Company. Neither the IRS nor any comparable taxing
authority has proposed to the Company in writing or, to the Knowledge
of Stockholders, otherwise proposed any such adjustment or change in
accounting method;
(k) The Company has not filed a consent pursuant to the
collapsible corporation provisions of Section 341(f) of the Code (or
any corresponding provision of state, local or foreign income law) or
agreed to have Section 341(f)(2) of the Code (or any corresponding
provision of state, local or foreign income tax law) apply to any
disposition of any asset owned by it;
(l) None of the assets of the Company is property that such
company is required to treat as being owned by any other 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 Tax Reform Act of 1986;
(m) None of the assets of the Company directly or
indirectly secures any debt, the interest on which is tax exempt under
Section 103(a) of the Code;
(n) None of the assets of the Company (i) is subject to
Section 168(g)(i)(A) of the Code or (ii) constitutes "tax-exempt use
property" within the meaning of Section 168(h) of the Code;
(o) The Company has not made a deemed dividend election
under Section 1.1502- 32(f)(2) of the Treasury Regulations or a
consent dividend election under Section 565 of the Code;
(p) The Company has never been a member of an affiliated
group of corporations filing a consolidated combined or unitary Return
other than a group of which the Company is the parent corporation; and
(q) The Company is not (or has never been) a party to any
tax sharing agreement nor has any such member assumed the tax
liability of any other person under contract.
Section 4.19. Litigation. Except as disclosed on Schedule 4.19,
----------
there are no actions, suits, proceedings, arbitrations or
investigations pending or, to the Knowledge of Stockholders,
threatened before any court, any governmental agency or
instrumentality or any arbitration panel, against or affecting the
Company or, to the Knowledge of Stockholders, any of the directors or
officers of the foregoing. To the Knowledge of Stockholders, no facts
or circumstances exist that would be likely to result in the filing of
<PAGE>
any such action that would have a Material Adverse Effect on the
Company. Except as disclosed on Schedule 4.19, the Company is not
subject to any currently pending judgment, order or decree entered in
any lawsuit or proceeding. All matters listed on Schedule 4.19 are
either adequately covered by insurance or accounted for through the
establishment of reasonable reserves on the McCall Latest Balance
Sheet.
Section 4.20. Insurance. (a) Schedule 4.20(a) contains a list
---------
of the insurance policies that the Company currently maintains with
respect to its business, properties and employees as of the date
hereof, each of which is in full force and effect and a complete and
correct copy of each has been delivered to SEACOR. All insurance
premiums currently due with respect to such policies have been paid
and the Company is not otherwise in default with respect to any such
policy, nor has the Company failed to give any notice or, to the
Knowledge of Stockholders, present any claim under any such policy in
a due and timely manner. There are no outstanding unpaid claims under
any such policy other than any pending claims under any of the
Company's marine insurance policies, the amount of which claims have
been recorded as a receivable and all of which are fully collectible.
The Company has not received notice of cancellation or non-renewal of
any such policy. Such policies are sufficient for compliance with all
requirements of law and all agreements to which the Company is a
party.
(b) Except as disclosed on Schedule 4.20(b), the Company is
not nor has ever been a member of any protection or indemnity club.
Section 4.21. Environmental Compliance. (a) Except as set
------------------------
forth on Schedule 4.21(a), the Company is and, to the Knowledge of
Stockholders, at all times in the past has been in compliance with all
Environmental Laws and the Company possesses all necessary licenses,
permits, authorizations, and other approvals and authorizations that
are required under the Environmental Laws ("Environmental Permits").
(b) Except as set forth on Schedule 4.21(b), the Company is
not, nor has been, subject to any pending or, to the Knowledge of
Stockholders, threatened investigations, administrative or judicial
proceedings pursuant to, or has received any notice of any violation
of, or claim alleging liability under, any Environmental Laws, and, to
the Knowledge of Stockholders, no facts or circumstances exist that
would be likely to result in a claim, citation or allegation against
the Company for a violation of, or alleging liability under, any
Environmental Laws.
(c) Except as set forth on Schedule 4.21(c), there are no
above ground or underground tanks of any type (including tanks storing
gasoline, diesel fuel, oil or other petroleum products) or disposal
sites for hazardous substances, hazardous wastes or any other
<PAGE>
waste, located on or under the real estate currently owned, leased or
used by the Company and, to the Knowledge of Stockholders, there were
no such disposal sites located on or under the real estate previously
owned, leased or used by the Company on the date of the sale thereof
by the Company or during the period of lease for use by the Company.
(d) Except in the ordinary course of business or as listed
on Schedule 4.21(d), and in all cases in compliance with Environmental
Laws, the Company has not engaged any third party to handle, transport
or dispose of Hazardous Substances (including for this purpose but not
limited to, gasoline, diesel fuel, oil or other petroleum products, or
bilge waste) on its behalf. The disposal by the Company of its
hazardous substances and wastes has been in compliance with all
Environmental Laws.
Section 4.22. Compliance With Law; Permits. Except with respect
----------------------------
to Environmental Laws, which is the subject of Section 4.21, the
following statements are true and correct:
(a) The operations and activities of the Company complies
with all applicable laws, regulations, ordinances, rules or orders of
any federal, state or local court or any governmental authority except
for any violation or failure to comply that could not reasonably be
expected to result in a Material Adverse Effect on the Company.
(b) The Company possesses all governmental licenses,
permits and other governmental authorizations that are (i) required
under all federal, state and local laws and regulations for the
ownership, use and operation of its assets or (ii) otherwise necessary
to permit the conduct of its business without interruption, and such
licenses, permits and authorizations are in full force and effect and
have been and are being fully complied with by it except for any
violation or failure to comply that could not reasonably be expected
to result in a Material Adverse Effect on the Company. The Company
has not received any notice of any violation of any of the terms or
conditions of any such license, permit or authorization and, to the
Knowledge of Stockholders, no facts or circumstances exist that could
form the basis of a revocation, claim, citation or allegation against
it for a violation of any such license, permit or authorization. No
such license, permit or authorization or any renewal thereof will be
terminated, revoked, suspended, modified or limited in any respect as
a result of the transactions contemplated by this Agreement except for
any violation or failure to comply that could not reasonably be
expected to result in a Material Adverse Effect on the Company.
Section 4.23. Interests in Clients, Suppliers, Etc. Except as
------------------------------------
set forth on Schedule 4.23, no officer or director of the Company
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
<PAGE>
Company or that has entered into any contract with the Company.
Ownership of less than 1% of any class of securities of a company
whose securities are registered under the Exchange Act will not be
deemed to be a financial interest for purposes of this Section 4.23.
Section 4.24. Transactions With Related Parties. (a) Schedule
---------------------------------
4.24(a) lists all transactions between January 1, 1993 and the date of
this Agreement involving, or for the benefit of, the Company, on the
one hand, and any director or officer of the Company or Affiliate of
such director or officer, on the other hand, including (i) any debtor
or creditor relationship, (ii) any transfer or lease of real or
personal property, and (iii) purchases or sales of products or
services.
(b) Schedule 4.24(b) lists (i) all agreements and claims of
any nature that any officer or director of the Company or any
Affiliate of such officer or director has with or against the Company
as of the date of this Agreement that are not identified on the McCall
Latest Balance Sheet or the notes thereto and (ii) all agreements and
claims of any nature that the Company has with or against any officer
or director of the Company or any Affiliate of such officer or
director as of the date of this Agreement that are not identified on
the McCall Latest Balance Sheet or the notes thereto.
Section 4.25. Broker's and Finder's Fee. No agent, broker,
-------------------------
person or firm acting on behalf of any of the Stockholders or the
Company is or will be entitled to any commission or broker's or
finder's fee from any of the parties hereto, or from any Affiliate of
the parties hereto, in connection with any of the transactions
contemplated herein.
Section 4.26. Disclosure. No representations or warranties by
----------
any of the Stockholders in this Agreement and no statement contained
in the schedules or exhibits or in any certificate to be delivered
pursuant to this Agreement, contains or will contain any untrue
statement of material fact or omits or will omit to state any material
fact necessary, in light of the circumstances under which it was made,
in order to make the statements herein or therein not misleading.
Section 4.27. Intellectual Property. (a) Schedule 4.27
---------------------
contains a list of any trademarks, service marks, trade names,
copyrights and patents (and any application for the registration
thereof), owned or licensed by the Company, specifying as to each, as
applicable: (i) the nature of such Intellectual Property Right;
(ii) the owner of each Intellectual Property Right licensed by the
Company; (iii) the expiration or termination date of each third party
license; and (iv) any third Person to whom any Intellectual Property
Right owned by the Company is licensed. All of the Intellectual
Property Rights owned by the Company are owned by the Company free and
clear of Liens. All third party licenses are valid, enforceable and
in full force and effect, and the interests of the Company under such
<PAGE>
third party licenses are held free and clear of any Liens. The
Company has no obligation to make any royalty or other payment to any
Person in connection with the use of or right to use any Intellectual
Property Right. The making, using or selling of products or services
incorporating the subject matter of any Intellectual Property Rights
of the Company does not infringe, violate or conflict with any
Intellectual Property Rights of any other Person.
(b) To the Knowledge of Stockholders, the use by the
Company of the name "McCall" or any variant or derivative thereof used
by the Company on the date hereof does not violate or infringe any
Intellectual Property Right of any Person.
ARTICLE 5.
REPRESENTATIONS AND WARRANTIES OF MCCALL AND SEACOR
McCall and SEACOR represent and warrant to each of the
Stockholders as follows:
Section 5.1. Organization and Citizenship. (a) SEACOR is a
----------------------------
corporation duly organized, validly existing and in good standing
under the laws of the State of Delaware and has all corporate power
and authority to carry on its business as now being conducted and to
own, lease and operate its properties. Each other member of the
SEACOR Affiliated Group is duly organized under the laws of the state
or foreign nation of its organization and has all the requisite power
and authority under the laws of such jurisdiction to carry on its
business as now being conducted and to own its properties. Each
member of the SEACOR Affiliated Group is duly qualified to do business
and is in good standing in each state and foreign jurisdiction in
which the character or location of the properties owned or leased by
it or the nature of the business conducted by it makes such
qualification necessary, except where the failure to be so qualified
or in good standing would not have a Material Adverse Effect on
SEACOR.
(b) SEACOR is a citizen of the United States within the
meaning of Section 2 of the Shipping Act, 1916, as amended for the
purposes of owning and operating vessels in the U.S. coastwise trade.
Section 5.2. Capitalization. The authorized capital stock of
--------------
SEACOR consists exclusively of 20,000,000 shares of common stock, $.01
par value per share, of which 8,513,825 shares were issued and
outstanding and 55,768 shares were held in its treasury as of May 28,
1996. All of such issued and outstanding shares have been validly
issued, are fully paid and nonassessable and were issued free of
preemptive rights, in compliance with any rights of first refusal, and
in compliance with all legal requirements.
<PAGE>
Section 5.3. Authority; Enforceable Agreements. (a) SEACOR
---------------------------------
has the requisite corporate power and authority to enter into this
Agreement and to consummate the transactions contemplated hereby. The
execution and delivery of this Agreement by SEACOR and the
consummation by SEACOR of the transactions contemplated hereby have
been duly authorized by all necessary corporate action on the part of
SEACOR. This Agreement has been duly executed and delivered by SEACOR
and (assuming due execution and delivery by the other parties hereto)
constitutes a valid and binding obligation of SEACOR, enforceable
against SEACOR in accordance with its terms, except as such
enforceability may be limited by bankruptcy, insolvency,
reorganization or similar laws affecting creditors' rights generally.
The other agreements entered, or to be entered, into by SEACOR in
connection with this Agreement have been, or will be, duly executed
and delivered by SEACOR and (assuming due execution and delivery by
the other parties thereto) constitute, or will constitute, valid and
binding obligations of SEACOR, enforceable against SEACOR in
accordance with their terms, except as such enforceability may be
limited by bankruptcy, insolvency, reorganization or similar laws
affecting creditors' rights generally.
(b) McCall has the requisite power and authority to enter
into this Agreement and to consummate the transactions contemplated
hereby. The execution and delivery of this Agreement by McCall and
the consummation by McCall of the transactions contemplated hereby
have been duly authorized by all necessary corporate action on the
part of McCall. This Agreement has been duly executed and delivered
by McCall and (assuming due execution and delivery by the other
parties hereto) constitutes a valid and binding obligation of McCall,
enforceable against McCall in accordance with its terms, except as
such enforceability may be limited by bankruptcy, insolvency,
reorganization or similar laws affecting creditors' rights generally.
The other agreements entered, or to be entered, into by McCall in
connection with this Agreement have been, or will be, duly executed
and delivered by McCall and (assuming due execution and delivery by
the other parties thereto) constitute, or will constitute, valid and
binding obligations of McCall, enforceable against McCall in
accordance with their terms, except as such enforceability may be
limited by bankruptcy, insolvency, reorganization or similar laws
affecting creditors' rights generally.
Section 5.4. No Conflicts or Consents. (a) Neither the
------------------------
execution, delivery nor performance of this Agreement by SEACOR nor
the consummation of the transactions contemplated hereby will (i)
violate, conflict with, or result in a breach of any provision of,
constitute a default (or an event that, with notice or lapse of time
or both, would constitute a default) under, result in the termination
of, or accelerate the performance required by, or result in the
creation of any adverse claim against any of the properties or assets
of any member of the SEACOR Affiliated Group under (A) the
certificates of incorporation, by-laws or other organizational
documents of any member of the SEACOR Affiliated Group or (B) any
note, bond, mortgage, indenture, deed of trust, lease, license,
agreement or other
<PAGE>
instrument or obligation to which any member of the SEACOR Affiliated
Group is a party, or by which any of its assets are bound, or (ii)
subject to obtaining clearance under the HSR Act, violate any order,
writ, injunction, decree, judgment, statute, rule or regulation of any
governmental body to which any member of the SEACOR Affiliated Group
is subject or by which any of its assets are bound.
(b) No consent, approval, order, permit or authorization
of, or registration, declaration or filing with, any Person or of any
government or any agency or political subdivision thereof is required
for the execution, delivery and performance by SEACOR of this
Agreement and the covenants and transactions contemplated hereby or
for the execution, delivery and performance by SEACOR of any other
agreements entered, or to be entered, into by SEACOR in connection
with this Agreement, except for the filing of the Registration
Statement on Form S-3 with the SEC, any filings, consents or approvals
in connection therewith and the declaration of effectiveness thereof
by the SEC as contemplated by the Investment and Registration Rights
Agreement.
Section 5.5. Corporate Documents. SEACOR has delivered to
-------------------
Stockholders true and complete copies of its certificate of
incorporation and by-laws, as amended or restated through the date of
this Agreement.
Section 5.6. SEC Documents; Financial Statements; Liabilities.
------------------------------------------------
(a) SEACOR has filed all required reports, schedules, forms,
statements and other documents with the SEC since December 31, 1993
(the "SEACOR SEC Documents"). As of their respective dates, the
SEACOR SEC Documents complied as to form in all material respects with
the requirements of the Securities Act or the Exchange Act, as the
case may be, and the rules and regulations of the SEC promulgated
thereunder applicable to such SEACOR SEC Documents, and none of the
SEACOR SEC Documents contained any untrue statement of a material fact
or omitted to state a material fact required to be stated therein or
necessary in order to make the statements therein, in light of the
circumstances under which they were made, not misleading.
(b) The SEACOR Financial Statements included in the SEACOR
SEC Documents have been prepared in accordance with GAAP applied on a
basis consistent with prior periods, and present fairly the financial
position of SEACOR and its subsidiaries at the dates of the balance
sheets included therein and the results of operations and cash flows
for the periods then ended, except, in the case of the SEACOR Interim
Financial Statements, as permitted by Rule 10-01 of Regulation S-X of
the SEC. The SEACOR Interim Financial Statements reflect all
adjustments (consisting only of normal recurring adjustments) that are
necessary for a fair statement of the results for the interim periods
presented therein. No member of the SEACOR Affiliated Group has, nor
are any of their respective assets subject
<PAGE>
to, any liability, commitment, debt or obligation (of any kind
whatsoever whether absolute or contingent, accrued, fixed, known,
unknown, matured or unmatured), except (i) as and to the extent
reflected on the SEACOR Latest Balance Sheet, (ii) as may have been
incurred or may have arisen since the date of the SEACOR Latest
Balance Sheet in the ordinary course of business and that are not
material individually or in the aggregate or (iii) as permitted by
this Agreement.
Section 5.7. Absence of Certain Changes or Events. Since the
------------------------------------
date of the SEACOR Latest Balance Sheet, each member of the SEACOR
Affiliated Group has conducted its business only in the ordinary
course, and has not:
(a) amended its certificate of incorporation, by-laws or
similar organizational documents;
(b) merged or consolidated with another Person (other than
a subsidiary) or acquired or agreed to acquire any Person, or sold,
leased, transferred or otherwise disposed of any material portion of
its assets except for fair value in the ordinary course of business;
(c) suffered any damage, destruction or loss (whether or
not covered by insurance) which has had or could reasonably be
expected to have a Material Adverse Effect on the SEACOR Affiliated
Group; or
(d) declared or paid any dividend or made any distribution
with respect to any of its equity interests, or redeemed, purchased or
otherwise acquired any of its equity interests, or issued, sold or
granted any equity interests or any option, warrant or other right to
purchase or acquire any such interest or effected any split or
reclassification thereof other than (i) grants of stock options or
restricted stock and issuances of shares of SEACOR Common Stock upon
the exercise of stock options or conversion of any outstanding
convertible securities, (ii) the acceptance by SEACOR of any shares in
consideration of the exercise of any stock options or in satisfaction
of any tax or tax withholding obligations of the holders of such
options, and (iii) payments within the SEACOR Affiliated Group by
entities other than SEACOR as part of its cash management program; or
(e) agreed, whether or not in writing, to do any of the
foregoing.
Section 5.8. Contracts. Each Contract which any member of the
---------
SEACOR Affiliated Group is a party that would be required to be filed
as an exhibit to a report, schedule, form, statement or other document
filed by SEACOR with the SEC (each a "Material Contract") has been so
filed and, except as set forth on Schedule 5.8, between the date of
the filing of its most recent Quarterly Report on Form 10-Q and the
date of this
<PAGE>
Agreement, SEACOR has not entered into any Material Contract other
than this Agreement. No member of the SEACOR Affiliated Group has
breached, nor is there any pending or, to the Knowledge of SEACOR,
threatened, claim that it has breached, any of the terms or conditions
of any of its Material Contracts, and to the Knowledge of SEACOR, no
other parties to any such Material Contract have breached any of its
terms or conditions.
Section 5.9. Litigation. Except as disclosed in a SEACOR SEC
----------
Document or listed on Schedule 5.9, there are no actions, suits,
proceedings, arbitrations or investigations pending or, to the
Knowledge of SEACOR, threatened, before any court, any governmental
agency or instrumentality or any arbitration panel, against or
affecting any member of the SEACOR Affiliated Group or, to the
Knowledge of SEACOR, any of the directors or officers of the
foregoing, that would have a Material Adverse Effect on SEACOR. To
the Knowledge of SEACOR, no facts or circumstances exist that would be
likely to result in the filing of any such action. No member of the
SEACOR Affiliated Group is subject to any currently pending judgment,
order or decree entered in any lawsuit or proceeding.
Section 5.10. Legality of SEACOR Common Stock. The SEACOR
-------------------------------
Common Stock to be issued in connection with the Acquisition, when
issued and delivered in accordance with the terms hereof, will be duly
authorized, validly issued, fully paid and non-assessable, and free of
pre-emptive rights.
Section 5.11. Broker's and Finder's Fee. No agent, broker,
-------------------------
Person or firm acting on behalf of SEACOR is or will be entitled to
any commission or broker's or finder's fee from any of the parties
hereto, or from any Affiliate of the parties hereto, in connection
with any of the transactions contemplated herein.
ARTICLE 6.
CLOSING CONDITIONS
Section 6.1. Conditions Applicable to All Parties. The
------------------------------------
obligations of each of the parties hereto to effect the Acquisition
and the other transactions contemplated by this Agreement is subject
to the satisfaction of the following condition:
(a) No action, suit or proceeding before any court or
governmental or regulatory authority will be pending, no investigation
by any governmental or regulatory authority will have been commenced,
and no action, suit or proceeding by any governmental or regulatory
authority will have been threatened, against McCall SEACOR, the
Company or any of the principals, officers or directors of any of
them, seeking to restrain, prevent or change the transactions
contemplated hereby or questioning the legality or validity of any
such transactions or seeking substantial damages in connection with
any such transactions.
<PAGE>
Section 6.2. Conditions to McCall's Obligations. The
----------------------------------
obligations of McCall to effect the Acquisition and the other
transactions contemplated by this Agreement are also subject to the
satisfaction or waiver of the following conditions at or prior to the
Closing:
(a) (i) The representations and warranties of Stockholders
in this Agreement or in any certificate delivered to McCall pursuant
hereto as of the date hereof will be deemed to have been made again at
and as of the Closing Date (without regard to any Schedule updates
furnished by Stockholders after the date hereof unless consented to by
McCall) and will then be true and correct in all material respects,
and (ii) Stockholders will have performed and complied in all material
respects with all agreements and conditions required by this Agreement
to be performed or complied with by Stockholders prior to or on the
Closing Date, except to the extent any such representation or warranty
or performance or compliance, as the case may be, is qualified by
materiality or by reference to the term "Material Adverse Effect", in
which case such representation or warranty or performance or
compliance shall be true and correct in all respects.
(b) There shall not have occurred any event or circumstance
that shall have resulted in or is reasonably likely to result in a
Material Adverse Effect with respect to the Company from the date of
the McCall Latest Balance Sheet to the Closing Date.
(c) All governmental and other material third-party
consents and approvals, if any, necessary to permit the consummation
of the transactions contemplated by this Agreement, including, but not
limited to, the transfer or obtaining of all material permits, or to
permit the continued operation of the business of the Company in
substantially the same manner after the Closing Date as immediately
prior to the Closing Date and otherwise consistent with the provisions
of this Agreement, shall have been received.
(d) The receipt by McCall of a certificate executed by the
Stockholders dated the Closing Date, certifying that the conditions
specified in Section 6.2(a) and (b) hereof have been fulfilled.
(e) Stockholders will have delivered to McCall, each dated
as of a date not earlier than five days prior to the Closing Date, (i)
copies of the certificates of incorporation or comparable documents of
the Company, including all amendments thereto, certified by the
appropriate government official of the jurisdiction of incorporation,
(ii) to the extent issued by such jurisdiction, certificates from the
appropriate governmental official to the effect that the Company is in
good standing in such jurisdiction and listing all organizational
documents of the Company on file, (iii) to the extent issued by such
jurisdiction, a certificate from the appropriate governmental official
in each jurisdiction in which the Company is qualified to do business
to the effect that the Company is in good standing in such
jurisdiction and (iv) to
<PAGE>
the extent issued by such jurisdiction, certificates as to the tax
status of the Company in its jurisdiction of organization and each
jurisdiction in which it is qualified to do business.
(f) McCall shall have received from Jones, Walker,
Waechter, Poitevent, Carrere & Denegre, LLP, counsel to Stockholders
that are not natural persons, an opinion, dated as of the Closing
Date, to the effect set forth in Exhibit C.
(g) Each of the Stockholders shall have executed and
delivered the Investment and Registration Rights Agreement and an
Indemnification Agreement substantially in the form attached hereto as
Exhibit D (the "Indemnification Agreement").
(h) Each of the Stockholders shall have delivered to McCall
certificates representing the number of Company Shares set forth
opposite such Stockholder's name on Exhibit A hereto, duly endorsed in
blank or accompanied by stock transfer powers duly executed in blank
and with all requisite stock transfer tax stamps attached.
Section 6.3. Conditions to Stockholder's Obligations. The
---------------------------------------
obligations of Stockholders to effect the Acquisition and the other
transactions contemplated by this Agreement are also subject to the
satisfaction or waiver of the following conditions at or prior to the
Closing:
(a) (i) The representations and warranties of SEACOR and
McCall in this Agreement or in any certificate delivered to
Stockholders pursuant hereto as of the date hereof will be deemed to
have been made again at and as of the Closing Date (without regard to
any Schedule updates furnished by McCall after the date hereof unless
consented to by Stockholders) and will then be true and correct in all
material respects, and (ii) McCall will have performed and complied in
all material respects with all agreements and conditions required by
this Agreement to be performed or complied with by McCall prior to or
on the Closing Date, except to the extent any such representation or
warranty or performance or compliance, as the case may be, is
qualified by materiality or by reference to the term "Material Adverse
Effect", in which case such representation or warranty or performance
or compliance shall be true and correct in all respects.
(b) There shall not have occurred any event or circumstance
that shall have resulted in or is reasonably likely to result in a
Material Adverse Effect with respect to the SEACOR Affiliated Group
from the date of the SEACOR Latest Balance Sheet to the Closing Date;
provided, however, that a decline in the price per share of SEACOR
-------- -------
Common Stock on the NASDAQ Stock Market shall not in and of itself
constitute a Material Adverse Effect.
<PAGE>
(c) All governmental and other material consents and
approvals, if any, necessary to permit the consummation of the
transactions contemplated by this Agreement shall have been received.
(d) The receipt by Stockholders of a certificate executed
by the Chief Financial Officer of SEACOR and an Executive Officer of
McCall dated the Closing Date, certifying that the conditions
specified in Section 6.3(a) and (b) hereof have been fulfilled.
(e) SEACOR will have delivered to the Stockholders a
certificate dated as of a date not earlier than five days prior to the
Closing Date from the appropriate governmental official to the effect
that SEACOR is in good standing in the State of Delaware and listing
all charter documents of SEACOR on file.
(f) The receipt by Stockholders of an opinion from Weil,
Gotshal & Manges LLP, counsel to SEACOR, and Lugenbuhl, Burke,
Wheaton, Peck, Rankin & Hubbard, Louisiana counsel to McCall and
SEACOR, which, together, covers the matters set forth in Exhibit E.
(g) SEACOR shall have executed and delivered the Investment
and Registration Rights Agreement and the Indemnification Agreement.
ARTICLE 7.
TERMINATION
Section 7.1. Termination. This Agreement may be terminated and
-----------
the Acquisition contemplated herein abandoned at any time before the
Closing Date.
(a) By the mutual written consent of the Board of Directors
of McCall and the Stockholder Representative.
(b) By the Board of Directors of McCall or by the
Stockholder Representative if there has been a material breach by the
other of any representation or warranty contained in this Agreement or
of any covenant contained in this Agreement, which in either case
cannot be, or has not been, cured within 15 days after written notice
of such breach is given to the party committing such breach, provided
that the right to effect such cure shall not extend beyond the date
set forth in Section 7.1(c) below.
(c) By the Board of Directors of McCall if (i) all
conditions to Closing required by Article 6 hereof have not been met
by or waived by November 20, 1996 (the "Termination Date"), or (ii)
any such condition cannot be met by such date and has not been
<PAGE>
waived by each party in whose favor such condition inures; provided,
--------
however, that neither McCall nor the Stockholder Representative shall
-------
be entitled to terminate this Agreement pursuant to this subparagraph
(c) if such party is in willful and material violation of any of its
representations, warranties or covenants in this Agreement.
(d) If any governmental authority shall have issued an
order, decree or ruling or taken any other action permanently
enjoining, restraining or otherwise prohibiting the Acquisition and
such order, decree, ruling or other action shall have become final and
nonappealable.
Section 7.2. Effect of Termination. Upon termination of this
---------------------
Agreement pursuant to this Article 7, this Agreement shall be void and
of no effect and shall result in no obligation of or liability to any
party or their respective directors, officers, employees, agents or
shareholders, unless such termination was the result of an intentional
breach of any representation, warranty or covenant in this Agreement
in which case the party who breached the representation, warranty or
covenant shall be liable to the other party for damages, and all costs
and expenses incurred in connection with the preparation, negotiation,
execution and performance of this Agreement.
ARTICLE 8.
MISCELLANEOUS
Section 8.1. Notices. All notices hereunder must be in writing
-------
and will be deemed to have been duly given upon receipt of hand
delivery; certified or registered mail; return receipt requested; or
telecopy transmission with confirmation of receipt:
(a) If to McCall or SEACOR:
SEACOR Holdings, Inc.
1370 Avenue of the Americas
New York, New York 10019
Attention: Charles Fabrikant
with a copy to: Randall Blank
<PAGE>
and to:
Weil Gotshal & Manges LLP
767 Fifth Avenue
New York, New York 10153
Attention: David E. Zeltner, Esq.
(b) If to Stockholders:
At their respective addresses appearing
in the books and records of the Company
with a copy to:
Stockwell, Sievert, Viccellio, Clements & Shaddock, L.L.P.
First National Bank Building
One Lakeside Plaza
P.O. Box 2900
Lake Charles, Louisiana 70602-2900
Attention: William E. Shaddock, Esq.
and to:
Jones, Walker, Waechter, Poitevent, Carrere
& Denegre L.L.P.
Place St. Charles
201 St. Charles Avenue
51st Floor
New Orleans, Louisiana 70170-5100
Attention: Carl C. Hanemann, Esq.
Telecopy No.: (504) 582-8398
Such names and addresses may be changed by written notice to each
person listed above.
Section 8.2. Governing Law. This Agreement shall be governed
-------------
by, construed and interpreted in accordance with the laws of the State
of Louisiana, regardless of the laws that might otherwise govern under
applicable principles of conflicts of laws thereof.
<PAGE>
Section 8.3. Counterparts. This Agreement may be executed in
------------
counterparts, each of which will be deemed an original but all of
which together will constitute one and the same instrument.
Section 8.4. Interpretation. (a) When a reference is made in
--------------
this Agreement to a Section, Exhibit or Schedule, such reference shall
be to a Section of, or an Exhibit or Schedule to, this Agreement
unless otherwise indicated. The table of contents and headings
contained in this Agreement are for reference purposes only and shall
not affect in any way the meaning or interpretation of this Agreement.
Whenever the words "include," "includes" or "including" are used in
this Agreement, they shall be deemed to be followed by the words
"without limitation."
Section 8.5. Entire Agreement; Severability. (a) This
------------------------------
Agreement, including the Exhibits and Schedules hereto, embodies the
entire agreement and understanding of the parties hereto in respect of
the subject matter contained herein. This Agreement supersedes all
prior agreements and understandings (whether written or oral) between
the parties with respect to such subject matter.
(b) If any provision of this Agreement is determined to be
invalid or unenforceable, in whole or in part, it is the parties'
intention that such determination will not be held to affect the
validity or enforceability of any other provision of this Agreement,
which provisions will otherwise remain in full force and effect.
Section 8.6. Amendment and Modification. This Agreement may be
--------------------------
amended or modified only by written agreement of the parties hereto;
provided, however, that there shall be made no amendment that by law
-------- -------
requires approval by the stockholders of a party hereto without the
approval of such stockholders.
Section 8.7. Extension; Waiver. At any time prior to the
-----------------
Closing Date, the parties may (a) extend the time for the performance
of any of the obligations or other acts of the other parties, (b)
waive any inaccuracies in the representations and warranties contained
in this Agreement or in any document delivered pursuant to this
Agreement or (c) waive compliance with any of the agreements or
conditions contained in this Agreement. The failure of a party to
insist upon strict adherence to any term of this Agreement on any
occasion shall not be considered a waiver or deprive that party of the
right thereafter to insist upon strict adherence to that term or any
other term of this Agreement. No waiver of any breach of this
Agreement shall be held to constitute a waiver of any other or
subsequent breach. Any waiver must be in writing.
<PAGE>
Section 8.8. Binding Effect; Benefits. This Agreement will
------------------------
inure to the benefit of and be binding upon the parties hereto and
their respective successors and assigns. Nothing in this Agreement,
express or implied, is intended to confer on any Person other than the
parties hereto and their respective successors and assigns any rights,
remedies, obligations or liabilities under or by reason of this
Agreement.
Section 8.9. Assignability. This Agreement is not assignable
-------------
by any party hereto without the prior written consent of the other
parties.
Section 8.10. Expenses. Each of the parties hereto shall pay
--------
all of its own expenses relating to the transactions contemplated by
this Agreement, including without limitation the fees and expenses of
its own financial, legal and tax advisors.
Section 8.11. Gender and Certain Definitions. All words used
------------------------------
herein, regardless of the number and gender specifically used, shall
be deemed and construed to include any other number, singular or
plural, and any other gender, masculine, feminine or neuter, as the
context requires.
<PAGE>
IN WITNESS WHEREOF, the parties hereto have duly executed this
Agreement as of the date first written above.
SEACOR HOLDINGS, INC.
By:/s/ Milton Rose
--------------------------------
Name: Milton Rose
Title: Vice-President
MCCALL ENTERPRISES, INC.
By:/s/ Milton Rose
--------------------------------
Name: Milton Rose
Title: President
/s/ Deanne Colligan and Madeline Colligan
-----------------------------------------
Deanne Colligan and Madeline Colligan,
Trustees of the HAM Trust created by
Norman F. McCall and Jacqueline C. McCall
by Act dated December 9, 1980 before
Gregory James Klumpp, notary.
<PAGE>
/s/ Deanne Colligan and Madeline Colligan
-----------------------------------------
Deanne Colligan and Madeline Colligan,
Trustees of the PDM Trust created by
Norman F. McCall and Jacqueline C. McCall
by Act dated December 9, 1980 before
Gregory James Klumpp, notary.
/s/ Deanne Colligan and Madeline Colligan
-----------------------------------------
Deanne Colligan and Madeline Colligan,
Trustees of the JKM Trust created by
Norman F. McCall and Jacqueline C. McCall
by Act dated December 9, 1980 before
Gregory James Klumpp, notary.
/s/ Gertrude Colligan
----------------------------------
Gertrude Colligan, Individually and
as Usufructuary
/s/ James A. Colligan
----------------------------------
James A. Colligan
/s/ Nell Colligan
----------------------------------
Nell Colligan
/s/ Madeline Colligan
----------------------------------
Madeline Colligan
/s/ Deanne Colligan
----------------------------------
Deanne Colligan
EXHIBIT 10.1
INDEMNIFICATION AGREEMENT
-------------------------
THIS INDEMNIFICATION AGREEMENT ("Agreement") is made and
entered into as of the 31st day of May, 1996, among all of the
stockholders of McCall Enterprises, Inc., a Louisiana corporation
("McCall"), listed on Exhibit A hereto (collectively, the
"Stockholders"), Norman McCall, acting as representative of the
Stockholders (in such capacity and his successor(s) being
referred to as the "Representative"), and SEACOR Holdings, Inc.,
a Delaware corporation ("SEACOR").
RECITALS:
--------
A. SEACOR, SEACOR Enterprises, Inc. ("Merger Sub") and
McCall have entered into an Agreement and Plan of Merger, dated
as of May 31, 1996 (the "Merger Agreement"), pursuant to which
Merger Sub will be merged with and into McCall;
B. The execution and delivery of this Agreement by each
of the Stockholders constitute a condition precedent to SEACOR's
obligations under the Merger Agreement; and
C. On the date hereof, pursuant to other acquisition
transactions contemplated by certain other agreements of even
date herewith (the "Other Agreements" and, together with the
Merger Agreement, the "Transaction Agreements"), SEACOR also is
acquiring, directly or indirectly, all of the equity interests in
the other Companies (as defined in the Merger Agreement) and, in
connection therewith, SEACOR and the stockholders of certain of
such other Companies will execute and deliver Indemnification
Agreements of even date herewith that are similar to this
Agreement (the "Other Indemnification Agreements" and, together
with this Agreement, the "Indemnification Agreements").
In consideration of the foregoing and of the
representations, warranties, covenants and agreements set forth
in this Agreement, the parties hereto, intending to be legally
bound, agree as follows:
1. Definitions. Capitalized terms used but not otherwise
-----------
defined in this Agreement shall have the meanings ascribed to
such terms in the Merger Agreement.
<PAGE>
2. Indemnification.
---------------
(a) Subject to the other provisions of this Agreement,
from and after the Closing, the Stockholders shall indemnify and
hold harmless, severally and not jointly, in accordance with
their respective proportionate interests as reflected on Exhibit
A hereto (except as provided in the proviso to this Section 2(a))
SEACOR and its Affiliates, each of their respective officers,
directors, employees, agents and representatives, and each of the
heirs, executors, successors and assigns of any of the foregoing
(individually, a "SEACOR Indemnified Party" and, collectively,
the "SEACOR Indemnified Parties"), against any losses, claims,
damages, liabilities or expenses whenever arising or incurred
(including, without limitation, amounts paid in settlement,
reasonable costs of investigation and reasonable attorneys' fees
and expenses) (hereinafter "Losses") arising out of or relating
to (i) any and all Taxes with respect to all taxable periods (or
portions thereof) of each member of the McCall Group ending on or
prior to the Closing Date and, to the extent provided in Section
3(a) hereof, all taxable periods that include, and end after, the
Closing Date (other than, in each case, Taxes for which
sufficient current accruals have been made on the Closing Balance
Sheet) and (ii) any breach of any representation, warranty,
covenant or agreement made by (A) McCall in the Merger Agreement,
(B) the Stockholders in the Investment and Registration Rights
Agreement among SEACOR and the Stockholders of even date herewith
(the "Registration Rights Agreement") and (C) the Stockholders in
this Agreement; provided, however, that, with respect to any
-------- -------
breach of any representation or warranty made by a Stockholder
pursuant to the Registration Rights Agreement or this Agreement,
no Stockholder (other than the Stockholder who commits such
breach) shall have liability for such breach. It is understood
that the Stockholders shall have no liability for indemnification
under clause (ii) above in the absence of a breach of any
representation, warranty, covenant or agreement referred to
therein.
(b) Subject to the other provisions of this Agreement, from
and after the Closing, SEACOR shall indemnify and hold harmless
the Stockholders and each of their employees, agents and
representatives, and each of the heirs, executors, successors and
assigns of any of the foregoing (individually, a "McCall
Indemnified Party" and, collectively, the "McCall Indemnified
Parties"), against any Losses arising out of or relating to any
breach of any representation, warranty, covenant or agreement
made by SEACOR in (i) the Merger Agreement, (ii) the Registration
Rights Agreement or (iii) this Agreement.
(c) For the purposes hereof, a SEACOR Indemnified Party or
a McCall Indemnified Party seeking indemnification pursuant to
this Agreement is referred to as an "Indemnified Party", and the
<PAGE>
party from whom such indemnification is sought is referred to as
the "Indemnifying Party."
(d) No Indemnified Party shall be entitled to make any
claim for indemnification pursuant to this Agreement after the
applicable Claims Period (as defined in Section 5 hereof).
(e) Except as otherwise provided in Section 3 hereof in
respect of matters relating to Taxes, the following provisions
shall apply:
(i) Promptly after receipt by an Indemnified
Party of notice of the commencement of any action or
proceeding involving a claim in respect of which
indemnification is being sought, such Indemnified Party
will, if a claim for indemnification hereunder is to be made
against the Indemnifying Party, give written notice to the
Indemnifying Party of the commencement of such action or
proceeding, the basis for such claim for indemnification and
such other information relating thereto as the Indemnifying
Party may reasonably request; provided, however, that
-------- -------
failure to so notify the Indemnifying Party or to provide
such information shall not relieve such Indemnifying Party
from any liability which it may have with respect to such
claim, except to the extent that it is actually materially
prejudiced by such failure to give notice.
(ii) In case any such action is brought against
an Indemnified Party, unless in such Indemnified Party's
reasonable judgment (A) a conflict of interest between the
Indemnified Party and the Indemnifying Party may exist in
respect of such claim, or (B) the Indemnified Party has
available to it reasonable defenses which are different from
or additional to those available to the Indemnifying Party,
the Indemnifying Party shall be entitled to assume and
control the defense of such action to the extent that it may
wish, with counsel reasonably satisfactory to such
Indemnified Party, and after notice from the Indemnifying
Party to such Indemnified Party of its election so to assume
and control the defense of such action, the Indemnifying
Party shall not be liable to such Indemnified Party for any
legal or other expenses subsequently incurred by the latter
in connection with the defense of such action other than
reasonable costs of investigation. If in such case the
Indemnifying Party elects not to do so, or if the
circumstances described in clause (A) or (B) above shall
apply, the Indemnified Party shall retain counsel reasonably
satisfactory to the Indemnifying Party, shall inform the
Indemnifying Party of the progress of the defense upon
request and shall respond to the reasonable requests of the
Indemnifying Party for information with respect thereto. In
any case in which the Indemnifying Party elects to assume
<PAGE>
the defense, any Indemnified Party shall have the right to
retain its own counsel, but the fees and disbursements of
such counsel shall be at the expense of such Indemnified
Party unless the Indemnifying Party and such Indemnified
Party shall have mutually agreed to the retention of such
counsel. It is understood that the Indemnifying Party shall
not, in connection with any action or related actions in the
same jurisdiction, be liable for the fees and disbursements
of more than one separate firm qualified in such
jurisdiction to act as counsel for all Indemnified Parties,
unless in any such Indemnified Party's reasonable judgment
(i) a conflict of interest between such Indemnified Party
and any other Indemnified Party may exist in respect of such
claim or (ii) such Indemnified Party has available to it
reasonable defenses which are different from or additional
to those available to other Indemnified Parties. The
Indemnifying Party shall not be liable for any settlement of
any proceeding effected without its written consent but if
settled with such consent or if there shall be a final
judgment for the plaintiff, the Indemnifying Party agrees to
indemnify the Indemnified Party from and against any Losses
by reason of such settlement or judgment (it being
understood that, as provided in Section 2(a), if the
Stockholders are the Indemnifying Party such indemnification
obligation shall be several and not joint, in accordance
with the Stockholders' proportionate interests as reflected
on Exhibit A hereto, except as otherwise provided in the
proviso to such Section 2(a)). Other than with respect to
claims under Section 2(a)(i) hereof, the Indemnifying Party
shall not, without the consent of the Indemnified Party,
consent to entry of any judgment or enter into any
settlement which does not include as an unconditional term
the giving by the claimant or plaintiff to such Indemnified
Party of a release from all liability in respect to such
claim or litigation. Any dispute as to whether any
Indemnified Party is entitled to indemnification in
connection with any action or proceeding under Section
2(e)(i) or this Section 2(e)(ii), the defense or settlement
of such action or proceeding, or any other rights or
obligations of the parties hereto in connection with such
action or proceeding shall be submitted to arbitration in
accordance with Section 7 of this Agreement.
(iii) In the event that an Indemnified Party
shall claim a right to payment pursuant to this Agreement
with respect to which there has been no action or proceeding
involving such claim pursuant to Section 2(e)(i) hereof,
such Indemnified Party shall send written notice of such
claim to the Indemnifying Party. Such notice shall specify
the basis for such claim in reasonable detail. As promptly
as possible after the Indemnified Party has given such
notice, such Indemnified Party and the Indemnifying Party
<PAGE>
shall establish the merits and amount of Losses, if any, to
which the Indemnified Party is entitled. If the parties do
not agree with respect to these matters within 30 days after
the giving of such notice, either party may submit the
matter to arbitration in accordance with Section 7 of this
Agreement. In such arbitration, if the arbitrator
determines that a breach of a representation, warranty,
covenant or agreement in the Merger Agreement, the
Registration Rights Agreement or this Agreement by the
Indemnifying Party occurred and that such breach caused
Losses to an Indemnified Party, the arbitrator will
determine the amount of any such Losses. Within ten
business days after the final determination of the merits of
such claim and amount of such Losses, the Indemnifying Party
shall, subject to the limitations set forth herein, deliver
to the Indemnified Party an amount of cash in immediately
available funds sufficient to satisfy such Losses or the
portion of such Losses for which such Indemnifying Party is
obligated to provide indemnity hereunder.
(iv) If a Stockholder fails to timely deliver
cash in the amount of any Losses payable by such Stockholder
under the terms of this Agreement, the SEACOR Indemnified
Party to whom such amount is payable shall have the right to
such number of Escrow Shares (as defined in Section 6
hereof) as shall have a value equal to such amount. For
purposes hereof, Escrow Shares shall be deemed to have the
same value per share as the Average Market Price; provided,
--------
however, in the event that the Current Market Price (as
-------
hereinafter defined) as of the date of payment is less than
the Average Market Price, Escrow Shares shall be deemed to
have the same value per share as the Current Market Price.
For purposes hereof, "Current Market Price" shall mean the
average of the daily closing sale prices per share of SEACOR
Common Stock on the NASDAQ Stock Market (or, if the NASDAQ
Stock Market ceases to be the principal national securities
exchange on which such stock is traded, on the principal
national securities exchange on which such stock is traded)
for the ten consecutive trading days that end on the trading
day prior to the date of payment.
3. Covenants Regarding Tax Matters. (a) To the extent
-------------------------------
permitted by applicable law, the Representative, McCall and
SEACOR will elect or cause to be elected with the relevant taxing
authority to close the taxable period of each member of the
McCall Group on the Closing Date. In any case where applicable
law does not permit each member of the McCall Group to close its
taxable year on the Closing Date, then Taxes, if any,
attributable to the taxable period of each member of the McCall
Group beginning before and ending after the Closing Date shall be
allocated (i) to the Stockholders for the period up to and
including the Closing Date to the extent such Taxes exceed the
<PAGE>
reserve therefor on the Closing Balance Sheet and (ii) to SEACOR
for the period up to and including the Closing Date to the extent
such Taxes do not exceed the reserve therefor on the Closing Date
Balance Sheet and for the period subsequent to the Closing Date.
For purposes of this Section 3(a), Taxes for the period up to and
including the Closing Date and for the period subsequent to the
Closing Date shall be determined on the basis of an interim
closing of the books as of the Closing Date or, to the extent not
susceptible to such allocation, by apportionment on the basis of
elapsed days.
(b) (i) The Representative shall be responsible for
causing to be filed all Returns required to be filed by or on
behalf of each member of the McCall Group on or before the
Closing Date (taking into account applicable extensions) and
shall pay or cause to be paid any Taxes shown to be due thereon.
The Representative shall file or cause to be filed all such
Returns in a manner consistent with past practices and, upon
SEACOR's request, shall provide copies of such Returns to SEACOR
for SEACOR's review and comment at least fifteen (15) business
days prior to filing. SEACOR shall be responsible for filing or
causing to be filed all Returns required to be filed by or on
behalf of each member of the McCall Group after the Closing Date
(taking into account applicable extensions) and shall pay or
cause to be paid any Taxes shown to be due thereon.
(ii) With respect to any Return of any member of
the McCall Group required to be filed by SEACOR for a taxable
period of such member of the McCall Group beginning before and
ending on or after the Closing Date, the Representative shall
provide SEACOR with a statement, within forty-five days after the
Closing Date, setting forth the amount of Tax that the
Representative believes is allocable to the Stockholders pursuant
to Section 3(a) hereof or for which the Stockholders are
responsible pursuant to Section 2(a)(i) hereof (the "Statement")
and copies of such Tax Return. The Statement shall provide (with
reasonable specificity) the bases on which such Taxes were
allocable to the Stockholders. SEACOR shall have the right to
review such Tax Return and the Statement prior to the filing of
such Tax Return. The Representative and SEACOR agree to consult
and resolve in good faith any issue arising as a result of the
review of such Tax Return and the Statement and to mutually
consent to the filing as promptly as possible of such Tax Return.
If the parties are unable to resolve any disagreement within
fifteen business days following SEACOR's receipt of such Tax
Return and Statement, the parties shall jointly request such
independent accounting firm as they shall select to resolve any
issue in dispute as promptly as possible and shall cooperate with
such accounting firm to resolve such disagreement. If such
independent accounting firm is unable to make a determination
with respect to any disputed issue prior to the due date
(including extensions) for the filing of the Tax Return in
<PAGE>
question, then SEACOR may file such Tax Return on the due date
(including extensions) therefor without such determination having
been made. Notwithstanding the filing of such Tax Return, such
independent accounting firm shall make a determination with
respect to any disputed issue, and the amount of Taxes that are
allocated to the Stockholders pursuant to Section 3(a) hereof for
which the Stockholders are responsible pursuant to Section
2(a)(i) hereof shall be as determined by such independent
accounting firm. The fees and expenses of such independent
accounting firm shall be paid one-half by SEACOR and one-half by
the Stockholders. Not later than five (5) business days before
the due date (including extensions) for the filing of such Tax
Return or, in the case of a dispute, not later than five (5)
business days after notice to the Representative of resolution
thereof, the Stockholders shall pay to SEACOR an amount equal to
the Taxes shown on the Statement as being the responsibility of
the Stockholders pursuant to Section 2(a)(i) hereof or allocable
to the Stockholders pursuant to Section 3(a) hereof (as the case
may be). No payment pursuant to this Section 3(b)(ii) shall
excuse the Stockholders from their indemnification obligations
pursuant to Section 2(a)(i) hereof should the amount of Taxes as
ultimately determined (on audit or otherwise), for the periods
covered by such Returns and which are the responsibility of the
Stockholders, exceed the amount of the Stockholders payment under
this Section 3(b)(ii).
(iii) The Stockholders may not file any amended
Returns or refund claims in respect of any taxable period of any
member of the McCall Group ending on or prior to the Closing Date
without the prior written consent of SEACOR.
(c) The Stockholders shall cooperate fully with SEACOR
and make available to SEACOR in a timely fashion such Tax data
and other information as may be reasonably required for the
preparation by SEACOR of any Returns required to be prepared and
filed by SEACOR hereunder. The Stockholders and SEACOR shall
make available to the other, as reasonably requested, all
information, records or documents in their possession relating to
Tax liabilities of each member of the McCall Group for all
taxable periods of each such member of the McCall Group ending
on, prior to or including the Closing Date and shall preserve all
such information, records and documents until the expiration of
any applicable Tax statute of limitations or extensions thereof
or, if a proceeding has been instituted for which the
information, records or documents is required, until there is a
final determination with respect to such proceeding.
(d) (i) SEACOR shall promptly notify the
Representative upon receipt by SEACOR or McCall of written notice
of any Tax audits of or proposed assessments against any member
of the McCall Group for taxable periods of any member of the
McCall Group ending on or prior to the Closing Date; provided,
--------
<PAGE>
however, that the failure of SEACOR to give the Representative
-------
prompt notice as required herein shall not relieve the
Stockholders of any of their obligations under Section 2 or 3
hereof, except to the extent that the Stockholders are actually
and materially prejudiced thereby. SEACOR shall have the right
to represent the interests of any member of the McCall Group in
any such Tax audit or administrative or court proceeding and to
employ counsel reasonably acceptable to the Representative;
provided, that SEACOR may not agree to a settlement or compromise
thereof without the prior written consent of the Representative,
which consent may be withheld solely in the event that the
Representative has been advised by counsel reasonably acceptable
to SEACOR that it is more likely than not that the issue under
audit (or the proposed assessment) would be decided favorably to
the member of the McCall Group. The Stockholders agree that they
will cooperate fully with SEACOR and its counsel in the defense
against or compromise of any claim in any said audit or
proceeding.
(ii) The Stockholders shall promptly notify SEACOR
upon receipt by the Stockholders of written notice of any Tax
audit or proposed assessment or other proposed change or
adjustment which may affect any member of the McCall Group or
their Tax attributes. The Stockholders shall keep SEACOR duly
informed of the progress thereof and, if the results of such Tax
audit or proceeding may have an adverse effect on any member of
the McCall Group, SEACOR or its affiliates for any taxable period
including or ending after the Closing Date, then the Stockholders
may not agree to a settlement or compromise thereof without
SEACOR's consent, which written consent will not be unreasonably
withheld.
(e) The Stockholders and SEACOR agree to treat any
indemnity payment made pursuant to this Agreement as an
adjustment to the Total Merger Consideration for federal, state,
local and foreign income tax purposes. If, notwithstanding such
treatment by the parties, any indemnity payment is determined to
be taxable to SEACOR, McCall or its Affiliates by any taxing
authority, the Stockholders shall indemnify SEACOR and its
Affiliates for any Taxes payable by reason of the receipt of such
indemnity payment (including any payments under this Section
3(e).
4. Liability Limits.
----------------
(a) Neither the Stockholders, on the one hand, nor
SEACOR on the other, shall have any liability for Losses in
respect of claims for indemnification under Section 2 hereof
until the aggregate amount of such Losses exceeds the greater
of $200,000 or 1% of the Total Merger Consideration (the
"Threshold"), in which event the applicable Indemnifying Party or
Parties shall, subject to the other provisions of this Section 4,
<PAGE>
be liable for the total amount of such Losses (including Losses
below the Threshold).
(b) The aggregate liability of any Stockholder for
Losses pursuant to this Agreement shall not exceed the following:
(i) in the absence of fraud, with respect to any
claim for indemnity pursuant to (A) Section
2(a)(i) hereof, (B) Section 2(a)(ii)(A) hereof for
any breach of any representation or warranty made
by McCall in the first sentence of Section 4.11(a)
of the Merger Agreement, in the second sentence of
Section 4.13(a) of the Merger Agreement, in
Section 4.13(d)(i) of the Merger Agreement or in
Section 4.18 of the Merger Agreement or (C)
pursuant to Section 2(a)(ii)(B) or 2(a)(ii)(C)
hereof, an amount equal to the value of the total
consideration paid to such Stockholder pursuant to
the Transaction Agreements; and
(ii) with respect to any other claim for indemnity
hereunder, an amount equal to 30% of the value of
the total consideration paid to such Stockholder
pursuant to the Transaction Agreements;
provided, however, that, in the absence of fraud, (1) in no event
-------- -------
shall the liability of any Stockholder under the Indemnification
Agreements exceed, in the aggregate, the value of the total
consideration paid to such Stockholder pursuant to the
Transaction Agreements and (2) in no event shall the liability of
any Stockholder under the Indemnification Agreements in respect
of matters for which liability, by the terms of such agreements,
is limited to an amount equal to 30% of the total consideration
paid such Stockholder pursuant to the Transaction Agreements
exceed, in the aggregate, an amount equal to 30% of such total
consideration.
(c) The aggregate liability of SEACOR for Losses
pursuant to this Agreement shall not exceed the following:
(i) with respect to any claim for indemnity
pursuant to (A) Section 2(b)(i) hereof for any
breach of any representation or warranty made by
SEACOR pursuant to Section 5.10 of the Merger
Agreement, or (B) Section 2(b)(ii) or 2(b)(iii)
hereof, an amount equal to the Total Merger
Consideration; and
(ii) with respect to any other claim for indemnity
hereunder, an amount equal to 30% of the Total
Merger Consideration;
<PAGE>
provided, however, that, in the absence of fraud, (1) in no event
-------- -------
shall the liability of SEACOR under the Indemnification
Agreements exceed, in the aggregate, the value of the total
consideration paid by SEACOR or its Affiliates pursuant to the
Transaction Agreements or (2) in no event shall the liability of
SEACOR under the Indemnification Agreements in respect of matters
for which liability, by the terms of such agreements, is limited
to an amount equal to 30% of the total consideration paid by
SEACOR or its Affiliates pursuant to the Transactions Agreements
exceed, in the aggregate, 30% of such total consideration.
5. Claim Periods. The term "Claims Period" shall mean the
-------------
following:
(a) With respect to any claim for indemnity under
Section 2(a)(i) hereof, 2(a)(ii)(A) hereof for any breach of any
representation or warranty made by McCall pursuant to Section
4.18 of the Merger Agreement or a breach of Section 3 hereof,
sixty (60) days following the expiration of the applicable Tax
statute of limitations with respect to the relevant taxable
period (including extensions);
(b) With respect to any claim for indemnity (i)
pursuant to Section 2(a)(ii)(A) hereof for any breach of any
representation or warranty made by McCall pursuant to (i) the
first sentence of Section 4.11(a) of the Merger Agreement, the
second sentence of Section 4.13(a) of the Merger Agreement or
Section 4.13(d)(i) of the Merger Agreement or (ii) pursuant to
Section 2(a)(ii)(B) or 2(a)(ii)(C) hereof, the period of time
commencing as of the date hereof and continuing for an unlimited
period of time thereafter;
(c) with respect to any other claim for indemnity
against the Stockholders hereunder, the period of time commencing
on the date hereof and expiring on the second anniversary of the
Closing Date;
(d) With respect to any claim for indemnity pursuant
to Section 2(b)(i) hereof for any breach of any representation or
warranty made by SEACOR pursuant to Section 5.10 of the Merger
Agreement or pursuant to Section 2(b)(ii) or 2(b)(iii) hereof,
the period of time commencing as of the date hereof continuing
for an unlimited period of time hereafter; and
(e) With respect to any other claim for indemnity
against SEACOR hereunder, the period of time commencing as of the
date hereof and expiring on the second anniversary of the Closing
Date.
6. Escrow of Shares. The Stockholders hereby agree that a
----------------
number of shares of SEACOR Common Stock equal to ten percent
(10%) of the number of shares of SEACOR Common Stock to be
<PAGE>
delivered to the Stockholders as Merger Consideration (the
"Escrow Shares") shall be delivered by the Exchange Agent to Bank
of Montreal Trust Company, as escrow agent (the "Escrow Agent"),
pursuant to the terms of an Escrow Agreement (the "Escrow
Agreement") in the form attached hereto as Exhibit B. The Escrow
Shares shall secure the obligations of the Stockholders to SEACOR
pursuant to Section 2(a) of this Agreement in accordance with the
terms of the Escrow Agreement. Each Stockholder shall be
entitled to direct the Escrow Agent to deliver all or any portion
of the Escrow Shares owned by such Stockholder to any Indemnified
Party as provided in Sections 2(e)(ii) and 2(e)(iii) hereof.
7. Jurisdiction and Forum; Arbitration. Any controversy
-----------------------------------
arising under, out of, in connection with, or relating to, this
Agreement, and any amendment hereof, or the breach hereof or
thereof, shall be determined and settled by arbitration in New
York, New York, by an arbitrator or arbitrators mutually agreed
upon by SEACOR and the Representative or, if SEACOR and the
Representative shall fail or be unable to so agree within ten
Business Days after the written request therefor by SEACOR or the
Representative to the other, such arbitrator or arbitrators as
may be selected in accordance with the rules of the American
Arbitration Association. Any award rendered therein shall
specify the findings of fact of the arbitrator or arbitrators and
the reasons for such award, with reference to and reliance on
relevant law. Any such award shall be final and binding on each
and all of the parties thereto and their personal representa-
tives, and judgment may be entered thereon in any court having
jurisdiction thereof.
8. Representations and Warranties of the Representative,
-----------------------------------------------------
the Stockholders and SEACOR.
---------------------------
(a) The Representative hereby represents and warrants
to each other party hereto that:
(i) this Agreement has been duly authorized,
executed and delivered by it and constitutes the legal,
valid and binding agreement of it, enforceable against it in
accordance with its terms, except as enforceability may be
limited by bankruptcy, insolvency, reorganization, or other
laws affecting creditors' rights and remedies generally and
by general principles of equity (regardless of whether such
enforceability is considered in a proceeding in equity or at
law); and
(ii) the execution, delivery and performance of
this Agreement and the consummation of the transactions
contemplated by this Agreement will not violate or conflict
with, constitute a breach of or default under, result in the
loss of any material benefit under, or permit the accelera-
tion of or entitle any party to accelerate any obligation
<PAGE>
under or pursuant to, any material mortgage, lien, lease,
agreement, instrument, order, arbitration award, judgment or
decree to which it is a party or by which it or any of its
assets are bound.
(b) Each Stockholder hereby represents and warrants to
each other party hereto that:
(i) this Agreement has been duly authorized,
executed and delivered by such Stockholder and constitutes
the legal, valid and binding agreement of such Stockholder,
enforceable against such Stockholder in accordance with its
terms, except as enforceability may be limited by bank-
ruptcy, insolvency, reorganization, or other laws affecting
creditors' rights and remedies generally and by general
principles of equity (regardless of whether such enforce-
ability is considered in a proceeding in equity or at law);
and
(ii) the execution, delivery and performance of
this Agreement and the consummation of the transactions
contemplated by this Agreement will not violate or conflict
with, constitute a breach of or default under, result in the
loss of any material benefit under, or permit the accelera-
tion of or entitle any party to accelerate any obligation
under or pursuant to, any material mortgage, lien, lease,
agreement, instrument, order, arbitration award, judgment or
decree to which such Stockholder is a party or by which it
or any of its assets are bound.
(c) SEACOR hereby represents and warrants to each
other party hereto that:
(i) this Agreement has been duly authorized,
executed and delivered by it and constitutes the legal,
valid and binding agreement of it, enforceable against it in
accordance with its terms, except as enforceability may be
limited by bankruptcy, insolvency, reorganization, or other
laws affecting creditors' rights and remedies generally and
by general principles of equity (regardless of whether such
enforceability is considered in a proceeding in equity or at
law); and
(ii) the execution, delivery and performance of
this Agreement and the consummation of the transactions
contemplated by this Agreement will not violate or conflict
with, constitute a breach of or default under, result in the
loss of any material benefit under, or permit the accelera-
tion of or entitle any party to accelerate any obligation
under or pursuant to, any material mortgage, lien, lease,
agreement, instrument, order, arbitration award, judgment or
<PAGE>
decree to which it is a party or by which it or any of its
assets are bound.
9. Representative.
--------------
(a) Each of the Stockholders hereby constitutes and
appoints the Representative to act as the Representative under
this Agreement, the Merger Agreement and the Escrow Agreement as
and to the extent provided herein and therein. Each of the
Stockholders agrees to indemnify and hold harmless the
Representative by reason of its acting or failing to act in
connection with any of the transactions contemplated hereby or by
the Escrow Agreement and against any loss, liability or expense
the Representative may sustain or incur as a result of serving as
Representative hereunder or under the Escrow Agreement, except
such losses, liabilities and expenses which are determined in an
arbitration proceeding to have resulted primarily from the gross
negligence or willful misconduct of the Representative. Each of
the Stockholders agrees that the Representative shall have no
liability whatsoever to any Indemnified Party, any Stockholder or
such Indemnified Party's or Stockholder's beneficiaries, heirs or
personal representatives for any matters arising out of this
Agreement or the Escrow Agreement except, in the case of the
Stockholders, for liability for such matters which are determined
in an arbitration proceeding to have resulted primarily from the
gross negligence or willful misconduct of the Representative.
Each of the Stockholders hereby agrees to reimburse the
Representative upon the request of the Representative for all
reasonable expenses, disbursements and advances incurred or made
by the Representative in the performance of its duties under this
Agreement or under the Escrow Agreement. The Representative
shall have the authority to act on behalf of and to bind the
Stockholders, in accordance with their proportionate interests as
set forth on Exhibit A, for purposes of the provisions of this
Agreement and the Escrow Agreement to the extent set forth in
this Agreement and the Escrow Agreement, respectively. In no
event shall the Representative be liable to any Indemnified Party
for any Stockholder's obligations under this Agreement or the
collection of any claim against any Stockholder.
(b) The initial Representative hereunder shall be
Norman McCall. In the event that Norman McCall, for any reason,
shall fail or be unable to continue to serve as Representative,
whether by reason of his death, incapacity, resignation or
otherwise, Alan McCall shall serve as successor Representative,
or in the event that Alan McCall, for any reason, shall fail or
be unable to serve as successor Representative, whether by reason
of his death, incapacity, resignation or otherwise, then the
successor Representative shall be elected by holders of a
majority of the interests reflected on Exhibit A hereto. The
rights, powers, privileges and obligations of the Representative
named hereunder shall be possessed by any successor
<PAGE>
Representative with the same effect as though such successor had
originally been a party to this Agreement. The word
"Representative" as used in this Agreement means the
Representative or any representative acting hereunder.
10. Notices. All notices, communications and deliveries
-------
required or permitted by this Agreement shall be made in writing
signed by the party making the same, shall specify the Section of
this Agreement pursuant to which it is given or being made, and
shall be deemed given or made (i) on the date delivered if
delivered by telecopy or in person, (ii) on the third business
day after it is mailed if mailed by registered or certified mail
(return receipt requested) (with postage and other fees prepaid),
or (iii) on the day after it is delivered, prepaid, to an
overnight express delivery service that confirms to the sender
delivery on such day, as follows:
To SEACOR:
SEACOR Holdings, Inc.
1370 Avenue of the Americas
25th Floor
New York, New York 10019
Attn: Randall Blank
Telecopy No.: (212) 582-8522
with a copy to:
Weil, Gotshal & Manges LLP
767 Fifth Avenue
New York, New York 10153
Attn: David E. Zeltner, Esq.
Telecopy No.: (212) 310-8007
To Stockholders and the Representative:
c/o McCall's Boat Rentals, Inc.
432 Marshall Street
Cameron, Louisiana 70631
Attn: Norman McCall
Telecopy No.: (318) 775-7025
with a copy to:
Stockwell, Sievert, Viccellio,
Clements & Shaddock
P.O. Box 2900
Lake Charles, Louisiana 70602
Attn: William E. Shaddock, Esq.
Telecopy No.: (318) 493-7210
<PAGE>
with an additional copy to:
Jones, Walker, Waechter, Poitevent,
Carrere & Denegre, L.L.P.
Place St. Charles
201 St. Charles Avenue
New Orleans, Louisiana 70170-5100
Attn: Carl C. Hanemann, Esq.
Telecopy No.: (504) 582-8398
or to such other representative or at such other address of a
party as such party hereto may furnish to the other Parties in
writing. If notice is given pursuant to this Section 10 of any
assignment to a permitted successor or assign of a party hereto,
the notice shall be given as set forth above to such successor or
assign of such party.
11. Time of the Essence; Computation of Time. Time is of
----------------------------------------
the essence for each and every provision of this Agreement.
Whenever the last day for the exercise of any privilege or the
discharge of any duty under this Agreement shall fall upon a
Saturday, Sunday or any date on which banks in New Orleans,
Louisiana or New York, New York are closed, the party having such
privilege or duty may exercise such privilege or discharge such
duty on the next succeeding day which is a regular business day.
12. Successors in Interest. This Agreement shall be
----------------------
binding upon and shall inure to the benefit of the Parties and
their permitted successors and assigns, and any reference to a
party shall also be a reference to a permitted successor or
assign.
13. Number; Gender. Whenever the context so requires, the
--------------
singular number shall include the plural and the plural shall
include the singular, and the gender of any pronoun shall include
the other genders.
14. Captions. The titles and captions contained in this
--------
Agreement are inserted in this Agreement only as a matter of
convenience and for reference and in no way define, limit, extend
or describe the scope of this Agreement or the intent of any
provision of this Agreement. Unless otherwise specified to the
contrary, all references to Sections are references to Sections
of this Agreement.
15. Amendments. To the extent permitted by law, this
----------
Agreement may be amended by a subsequent writing signed by all of
the Parties (other than the Stockholders) and Stockholders having
an aggregate proportionate interest, as reflected on Exhibit A
hereto at least equal to 80%.
<PAGE>
16. Controlling Law; Integration; Waiver. This Agreement
------------------------------------
shall be governed by and construed and enforced in accordance
with the laws of the State of New York, without giving effect to
the principles thereof relating to the conflict or choice of
laws. This Agreement supersedes all negotiations, agreements
and understandings among the parties with respect to the subject
matter of this Agreement and constitutes the entire agreement
among the parties to this Agreement with respect to such subject
matter. The failure of any party at any time or times to require
performance of any provisions of this Agreement shall in no
manner affect the right to enforce the same. No waiver by any
party of any conditions, or of the breach of any term, provision,
warranty, representation, agreement or covenant contained in this
Agreement, whether by conduct or otherwise, in any one or more
instances shall be deemed or construed as a further or continuing
waiver of any such condition or breach of any other term,
provision, warranty, representation, agreement or covenant
contained in this Agreement.
17. Exclusive Remedy. The Parties agree that, from and
----------------
after the Effective Time (as defined in the Merger Agreement),
the rights and remedies of any party under this Agreement shall
be the sole and exclusive remedy of the parties for Losses
arising out of any breach of this Agreement, the Merger
Agreement, the Registration Rights Agreement or any of the
transactions contemplated herein or therein.
18. Severability. Any provision of this Agreement which is
------------
prohibited or unenforceable in any jurisdiction will, as to such
jurisdiction, be ineffective to the extent of such prohibition or
unenforceability without invalidating the remaining provisions of
this Agreement, and any such prohibition or unenforceability in
any jurisdiction will not invalidate or render unenforceable such
provision in any other jurisdiction. To the extent permitted by
law, the Parties waive any provision of law which renders any
such provision prohibited or unenforceable in any respect.
<PAGE>
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be executed as of the date first above written.
SEACOR HOLDINGS, INC.
---------------------
By: /s/ Milton Rose
------------------------------------
Name: Milton Rose
Title: Vice-President
STOCKHOLDERS
------------
/s/ Norman F. McCall
----------------------------------------
Norman F. McCall
/s/ Joyce C. McCall
----------------------------------------
Joyce C. McCall
/s/ Deanne Colligan and Madeline Colligan
-----------------------------------------
Deanne Colligan and Madeline Colligan,
Trustees of the HAM Trust created by Norman
F. McCall and Jacqueline C. McCall by Act
dated December 9, 1980 before Gregory James
Klumpp, notary.
/s/ Deanne Colligan and Madeline Colligan
-----------------------------------------
Deanne Colligan and Madeline Colligan,
Trustees of the PDM Trust created by Norman
F. McCall and Jacqueline C. McCall by Act
dated December 9, 1980 before Gregory James
Klumpp, notary.
/s/ Deanne Colligan and Madeline Colligan
-----------------------------------------
Deanne Colligan and Madeline Colligan,
Trustees of the JKM Trust created by Norman
F. McCall and Jacqueline C. McCall by Act
dated December 9, 1980 before Gregory James
Klumpp, notary.
NYFS11...:\93\73293\0011\1711\EXH4226L.32H
EXHIBIT 10.2
INDEMNIFICATION AGREEMENT
-------------------------
THIS INDEMNIFICATION AGREEMENT ("Agreement") is made and
entered into as of the 31st day of May, 1996, among all of the
stockholders of McCall Support Vessels, Inc., a Louisiana
corporation ("McCall"), listed on Exhibit A hereto (collectively,
the "Stockholders"), Norman McCall, acting as representative of
the Stockholders (in such capacity and his successor(s) being
referred to as the "Representative"), and SEACOR Holdings, Inc.,
a Delaware corporation ("SEACOR").
RECITALS:
--------
A. SEACOR, SEACOR Support Services, Inc. ("Merger Sub")
and McCall have entered into an Agreement and Plan of Merger,
dated as of May 31, 1996 (the "Merger Agreement"), pursuant to
which Merger Sub will be merged with and into McCall;
B. The execution and delivery of this Agreement by each
of the Stockholders constitute a condition precedent to SEACOR's
obligations under the Merger Agreement; and
C. On the date hereof, pursuant to other acquisition
transactions contemplated by certain other agreements of even
date herewith (the "Other Agreements" and, together with the
Merger Agreement, the "Transaction Agreements"), SEACOR also is
acquiring, directly or indirectly, all of the equity interests in
the other Companies (as defined in the Merger Agreement) and, in
connection therewith, SEACOR and the stockholders of certain of
such other Companies will execute and deliver Indemnification
Agreements of even date herewith that are similar to this
Agreement (the "Other Indemnification Agreements" and, together
with this Agreement, the "Indemnification Agreements").
In consideration of the foregoing and of the
representations, warranties, covenants and agreements set forth
in this Agreement, the parties hereto, intending to be legally
bound, agree as follows:
1. Definitions. Capitalized terms used but not otherwise
-----------
defined in this Agreement shall have the meanings ascribed to
such terms in the Merger Agreement.
<PAGE>
2. Indemnification.
---------------
(a) Subject to the other provisions of this Agreement,
from and after the Closing, the Stockholders shall indemnify and
hold harmless, severally and not jointly, in accordance with
their respective proportionate interests as reflected on Exhibit
A hereto (except as provided in the proviso to this Section 2(a))
SEACOR and its Affiliates, each of their respective officers,
directors, employees, agents and representatives, and each of the
heirs, executors, successors and assigns of any of the foregoing
(individually, a "SEACOR Indemnified Party" and, collectively,
the "SEACOR Indemnified Parties"), against any losses, claims,
damages, liabilities or expenses whenever arising or incurred
(including, without limitation, amounts paid in settlement,
reasonable costs of investigation and reasonable attorneys' fees
and expenses) (hereinafter "Losses") arising out of or relating
to (i) any and all Taxes with respect to all taxable periods (or
portions thereof) of each member of the McCall Group ending on or
prior to the Closing Date and, to the extent provided in Section
3(a) hereof, all taxable periods that include, and end after, the
Closing Date (other than, in each case, Taxes for which
sufficient current accruals have been made on the Closing Balance
Sheet) and (ii) any breach of any representation, warranty,
covenant or agreement made by (A) McCall in the Merger Agreement,
(B) the Stockholders in the Investment and Registration Rights
Agreement among SEACOR and the Stockholders of even date herewith
(the "Registration Rights Agreement") and (C) the Stockholders in
this Agreement; provided, however, that, with respect to any
-------- -------
breach of any representation or warranty made by a Stockholder
pursuant to the Registration Rights Agreement or this Agreement,
no Stockholder (other than the Stockholder who commits such
breach) shall have liability for such breach. It is understood
that the Stockholders shall have no liability for indemnification
under clause (ii) above in the absence of a breach of any
representation, warranty, covenant or agreement referred to
therein.
(b) Subject to the other provisions of this Agreement, from
and after the Closing, SEACOR shall indemnify and hold harmless
the Stockholders and each of their employees, agents and
representatives, and each of the heirs, executors, successors and
assigns of any of the foregoing (individually, a "McCall
Indemnified Party" and, collectively, the "McCall Indemnified
Parties"), against any Losses arising out of or relating to any
breach of any representation, warranty, covenant or agreement
made by SEACOR in (i) the Merger Agreement, (ii) the Registration
Rights Agreement or (iii) this Agreement.
(c) For the purposes hereof, a SEACOR Indemnified Party or
a McCall Indemnified Party seeking indemnification pursuant to
this Agreement is referred to as an "Indemnified Party", and the
<PAGE>
party from whom such indemnification is sought is referred to as
the "Indemnifying Party."
(d) No Indemnified Party shall be entitled to make any
claim for indemnification pursuant to this Agreement after the
applicable Claims Period (as defined in Section 5 hereof).
(e) Except as otherwise provided in Section 3 hereof in
respect of matters relating to Taxes, the following provisions
shall apply:
(i) Promptly after receipt by an Indemnified
Party of notice of the commencement of any action or
proceeding involving a claim in respect of which
indemnification is being sought, such Indemnified Party
will, if a claim for indemnification hereunder is to be made
against the Indemnifying Party, give written notice to the
Indemnifying Party of the commencement of such action or
proceeding, the basis for such claim for indemnification and
such other information relating thereto as the Indemnifying
Party may reasonably request; provided, however, that
-------- -------
failure to so notify the Indemnifying Party or to provide
such information shall not relieve such Indemnifying Party
from any liability which it may have with respect to such
claim, except to the extent that it is actually materially
prejudiced by such failure to give notice.
(ii) In case any such action is brought against
an Indemnified Party, unless in such Indemnified Party's
reasonable judgment (A) a conflict of interest between the
Indemnified Party and the Indemnifying Party may exist in
respect of such claim, or (B) the Indemnified Party has
available to it reasonable defenses which are different from
or additional to those available to the Indemnifying Party,
the Indemnifying Party shall be entitled to assume and
control the defense of such action to the extent that it may
wish, with counsel reasonably satisfactory to such
Indemnified Party, and after notice from the Indemnifying
Party to such Indemnified Party of its election so to assume
and control the defense of such action, the Indemnifying
Party shall not be liable to such Indemnified Party for any
legal or other expenses subsequently incurred by the latter
in connection with the defense of such action other than
reasonable costs of investigation. If in such case the
Indemnifying Party elects not to do so, or if the
circumstances described in clause (A) or (B) above shall
apply, the Indemnified Party shall retain counsel reasonably
satisfactory to the Indemnifying Party, shall inform the
Indemnifying Party of the progress of the defense upon
request and shall respond to the reasonable requests of the
Indemnifying Party for information with respect thereto. In
any case in which the Indemnifying Party elects to assume
<PAGE>
the defense, any Indemnified Party shall have the right to
retain its own counsel, but the fees and disbursements of
such counsel shall be at the expense of such Indemnified
Party unless the Indemnifying Party and such Indemnified
Party shall have mutually agreed to the retention of such
counsel. It is understood that the Indemnifying Party shall
not, in connection with any action or related actions in the
same jurisdiction, be liable for the fees and disbursements
of more than one separate firm qualified in such
jurisdiction to act as counsel for all Indemnified Parties,
unless in any such Indemnified Party's reasonable judgment
(i) a conflict of interest between such Indemnified Party
and any other Indemnified Party may exist in respect of such
claim or (ii) such Indemnified Party has available to it
reasonable defenses which are different from or additional
to those available to other Indemnified Parties. The
Indemnifying Party shall not be liable for any settlement of
any proceeding effected without its written consent but if
settled with such consent or if there shall be a final
judgment for the plaintiff, the Indemnifying Party agrees to
indemnify the Indemnified Party from and against any Losses
by reason of such settlement or judgment (it being
understood that, as provided in Section 2(a), if the
Stockholders are the Indemnifying Party such indemnification
obligation shall be several and not joint, in accordance
with the Stockholders' proportionate interests as reflected
on Exhibit A hereto, except as otherwise provided in the
proviso to such Section 2(a)). Other than with respect to
claims under Section 2(a)(i) hereof, the Indemnifying Party
shall not, without the consent of the Indemnified Party,
consent to entry of any judgment or enter into any
settlement which does not include as an unconditional term
the giving by the claimant or plaintiff to such Indemnified
Party of a release from all liability in respect to such
claim or litigation. Any dispute as to whether any
Indemnified Party is entitled to indemnification in
connection with any action or proceeding under Section
2(e)(i) or this Section 2(e)(ii), the defense or settlement
of such action or proceeding, or any other rights or
obligations of the parties hereto in connection with such
action or proceeding shall be submitted to arbitration in
accordance with Section 7 of this Agreement.
(iii) In the event that an Indemnified Party
shall claim a right to payment pursuant to this Agreement
with respect to which there has been no action or proceeding
involving such claim pursuant to Section 2(e)(i) hereof,
such Indemnified Party shall send written notice of such
claim to the Indemnifying Party. Such notice shall specify
the basis for such claim in reasonable detail. As promptly
as possible after the Indemnified Party has given such
notice, such Indemnified Party and the Indemnifying Party
<PAGE>
shall establish the merits and amount of Losses, if any, to
which the Indemnified Party is entitled. If the parties do
not agree with respect to these matters within 30 days after
the giving of such notice, either party may submit the
matter to arbitration in accordance with Section 7 of this
Agreement. In such arbitration, if the arbitrator
determines that a breach of a representation, warranty,
covenant or agreement in the Merger Agreement, the
Registration Rights Agreement or this Agreement by the
Indemnifying Party occurred and that such breach caused
Losses to an Indemnified Party, the arbitrator will
determine the amount of any such Losses. Within ten
business days after the final determination of the merits of
such claim and amount of such Losses, the Indemnifying Party
shall, subject to the limitations set forth herein, deliver
to the Indemnified Party an amount of cash in immediately
available funds sufficient to satisfy such Losses or the
portion of such Losses for which such Indemnifying Party is
obligated to provide indemnity hereunder.
3. Covenants Regarding Tax Matters. (a) To the extent
-------------------------------
permitted by applicable law, the Representative, McCall and
SEACOR will elect or cause to be elected with the relevant taxing
authority to close the taxable period of each member of the
McCall Group on the Closing Date. In any case where applicable
law does not permit each member of the McCall Group to close its
taxable year on the Closing Date, then Taxes, if any,
attributable to the taxable period of each member of the McCall
Group beginning before and ending after the Closing Date shall be
allocated (i) to the Stockholders for the period up to and
including the Closing Date to the extent such Taxes exceed the
reserve therefor on the Closing Balance Sheet and (ii) to SEACOR
for the period up to and including the Closing Date to the extent
such Taxes do not exceed the reserve therefor on the Closing Date
Balance Sheet and for the period subsequent to the Closing Date.
For purposes of this Section 3(a), Taxes for the period up to and
including the Closing Date and for the period subsequent to the
Closing Date shall be determined on the basis of an interim
closing of the books as of the Closing Date or, to the extent not
susceptible to such allocation, by apportionment on the basis of
elapsed days.
(b) (i) The Representative shall be responsible for
causing to be filed all Returns required to be filed by or on
behalf of each member of the McCall Group on or before the
Closing Date (taking into account applicable extensions) and
shall pay or cause to be paid any Taxes shown to be due thereon.
The Representative shall file or cause to be filed all such
Returns in a manner consistent with past practices and, upon
SEACOR's request, shall provide copies of such Returns to SEACOR
for SEACOR's review and comment at least fifteen (15) business
days prior to filing. SEACOR shall be responsible for filing or
<PAGE>
causing to be filed all Returns required to be filed by or on
behalf of each member of the McCall Group after the Closing Date
(taking into account applicable extensions) and shall pay or
cause to be paid any Taxes shown to be due thereon.
(ii) With respect to any Return of any member of
the McCall Group required to be filed by SEACOR for a taxable
period of such member of the McCall Group beginning before and
ending on or after the Closing Date, the Representative shall
provide SEACOR with a statement, within forty-five days after the
Closing Date, setting forth the amount of Tax that the
Representative believes is allocable to the Stockholders pursuant
to Section 3(a) hereof or for which the Stockholders are
responsible pursuant to Section 2(a)(i) hereof (the "Statement")
and copies of such Tax Return. The Statement shall provide (with
reasonable specificity) the bases on which such Taxes were
allocable to the Stockholders. SEACOR shall have the right to
review such Tax Return and the Statement prior to the filing of
such Tax Return. The Representative and SEACOR agree to consult
and resolve in good faith any issue arising as a result of the
review of such Tax Return and the Statement and to mutually
consent to the filing as promptly as possible of such Tax Return.
If the parties are unable to resolve any disagreement within
fifteen business days following SEACOR's receipt of such Tax
Return and Statement, the parties shall jointly request such
independent accounting firm as they shall select to resolve any
issue in dispute as promptly as possible and shall cooperate with
such accounting firm to resolve such disagreement. If such
independent accounting firm is unable to make a determination
with respect to any disputed issue prior to the due date
(including extensions) for the filing of the Tax Return in
question, then SEACOR may file such Tax Return on the due date
(including extensions) therefor without such determination having
been made. Notwithstanding the filing of such Tax Return, such
independent accounting firm shall make a determination with
respect to any disputed issue, and the amount of Taxes that are
allocated to the Stockholders pursuant to Section 3(a) hereof for
which the Stockholders are responsible pursuant to Section
2(a)(i) hereof shall be as determined by such independent
accounting firm. The fees and expenses of such independent
accounting firm shall be paid one-half by SEACOR and one-half by
the Stockholders. Not later than five (5) business days before
the due date (including extensions) for the filing of such Tax
Return or, in the case of a dispute, not later than five (5)
business days after notice to the Representative of resolution
thereof, the Stockholders shall pay to SEACOR an amount equal to
the Taxes shown on the Statement as being the responsibility of
the Stockholders pursuant to Section 2(a)(i) hereof or allocable
to the Stockholders pursuant to Section 3(a) hereof (as the case
may be). No payment pursuant to this Section 3(b)(ii) shall
excuse the Stockholders from their indemnification obligations
pursuant to Section 2(a)(i) hereof should the amount of Taxes as
<PAGE>
ultimately determined (on audit or otherwise), for the periods
covered by such Returns and which are the responsibility of the
Stockholders, exceed the amount of the Stockholders payment under
this Section 3(b)(ii).
(iii) The Stockholders may not file any amended
Returns or refund claims in respect of any taxable period of any
member of the McCall Group ending on or prior to the Closing Date
without the prior written consent of SEACOR.
(c) The Stockholders shall cooperate fully with SEACOR
and make available to SEACOR in a timely fashion such Tax data
and other information as may be reasonably required for the
preparation by SEACOR of any Returns required to be prepared and
filed by SEACOR hereunder. The Stockholders and SEACOR shall
make available to the other, as reasonably requested, all
information, records or documents in their possession relating to
Tax liabilities of each member of the McCall Group for all
taxable periods of each such member of the McCall Group ending
on, prior to or including the Closing Date and shall preserve all
such information, records and documents until the expiration of
any applicable Tax statute of limitations or extensions thereof
or, if a proceeding has been instituted for which the
information, records or documents is required, until there is a
final determination with respect to such proceeding.
(d) (i) SEACOR shall promptly notify the
Representative upon receipt by SEACOR or McCall of written notice
of any Tax audits of or proposed assessments against any member
of the McCall Group for taxable periods of any member of the
McCall Group ending on or prior to the Closing Date; provided,
--------
however, that the failure of SEACOR to give the Representative
-------
prompt notice as required herein shall not relieve the
Stockholders of any of their obligations under Section 2 or 3
hereof, except to the extent that the Stockholders are actually
and materially prejudiced thereby. SEACOR shall have the right
to represent the interests of any member of the McCall Group in
any such Tax audit or administrative or court proceeding and to
employ counsel reasonably acceptable to the Representative;
provided, that SEACOR may not agree to a settlement or compromise
thereof without the prior written consent of the Representative,
which consent may be withheld solely in the event that the
Representative has been advised by counsel reasonably acceptable
to SEACOR that it is more likely than not that the issue under
audit (or the proposed assessment) would be decided favorably to
the member of the McCall Group. The Stockholders agree that they
will cooperate fully with SEACOR and its counsel in the defense
against or compromise of any claim in any said audit or
proceeding.
(ii) The Stockholders shall promptly notify SEACOR
upon receipt by the Stockholders of written notice of any Tax
<PAGE>
audit or proposed assessment or other proposed change or
adjustment which may affect any member of the McCall Group or
their Tax attributes. The Stockholders shall keep SEACOR duly
informed of the progress thereof and, if the results of such Tax
audit or proceeding may have an adverse effect on any member of
the McCall Group, SEACOR or its affiliates for any taxable period
including or ending after the Closing Date, then the Stockholders
may not agree to a settlement or compromise thereof without
SEACOR's consent, which written consent will not be unreasonably
withheld.
(e) The Stockholders and SEACOR agree to treat any
indemnity payment made pursuant to this Agreement as an
adjustment to the Total Merger Consideration for federal, state,
local and foreign income tax purposes. If, notwithstanding such
treatment by the parties, any indemnity payment is determined to
be taxable to SEACOR, McCall or its Affiliates by any taxing
authority, the Stockholders shall indemnify SEACOR and its
Affiliates for any Taxes payable by reason of the receipt of such
indemnity payment (including any payments under this Section
3(e).
4. Liability Limits.
----------------
(a) Neither the Stockholders, on the one hand, nor
SEACOR on the other, shall have any liability for Losses in
respect of claims for indemnification under Section 2 hereof
until the aggregate amount of such Losses exceeds the greater
of $200,000 or 1% of the Total Merger Consideration (the
"Threshold"), in which event the applicable Indemnifying Party or
Parties shall, subject to the other provisions of this Section 4,
be liable for the total amount of such Losses (including Losses
below the Threshold).
(b) The aggregate liability of any Stockholder for
Losses pursuant to this Agreement shall not exceed the following:
(i) in the absence of fraud, with respect to any
claim for indemnity pursuant to (A) Section
2(a)(i) hereof, (B) Section 2(a)(ii)(A) hereof for
any breach of any representation or warranty made
by McCall in the first sentence of Section 4.11(a)
of the Merger Agreement, in the second sentence of
Section 4.13(a) of the Merger Agreement, in
Section 4.13(d)(i) of the Merger Agreement or in
Section 4.18 of the Merger Agreement or (C)
pursuant to Section 2(a)(ii)(B) or 2(a)(ii)(C)
hereof, an amount equal to the value of the total
consideration paid to such Stockholder pursuant to
the Transaction Agreements; and
<PAGE>
(ii) with respect to any other claim for indemnity
hereunder, an amount equal to 30% of the value of
the total consideration paid to such Stockholder
pursuant to the Transaction Agreements;
provided, however, that, in the absence of fraud, (1) in no event
-------- -------
shall the liability of any Stockholder under the Indemnification
Agreements exceed, in the aggregate, the value of the total
consideration paid to such Stockholder pursuant to the
Transaction Agreements and (2) in no event shall the liability of
any Stockholder under the Indemnification Agreements in respect
of matters for which liability, by the terms of such agreements,
is limited to an amount equal to 30% of the total consideration
paid such Stockholder pursuant to the Transaction Agreements
exceed, in the aggregate, an amount equal to 30% of such total
consideration.
(c) The aggregate liability of SEACOR for Losses
pursuant to this Agreement shall not exceed the following:
(i) with respect to any claim for indemnity
pursuant to (A) Section 2(b)(i) hereof for any
breach of any representation or warranty made by
SEACOR pursuant to Section 5.10 of the Merger
Agreement, or (B) Section 2(b)(ii) or 2(b)(iii)
hereof, an amount equal to the Total Merger
Consideration; and
(ii) with respect to any other claim for indemnity
hereunder, an amount equal to 30% of the Total
Merger Consideration;
provided, however, that, in the absence of fraud, (1) in no event
-------- -------
shall the liability of SEACOR under the Indemnification
Agreements exceed, in the aggregate, the value of the total
consideration paid by SEACOR or its Affiliates pursuant to the
Transaction Agreements or (2) in no event shall the liability of
SEACOR under the Indemnification Agreements in respect of matters
for which liability, by the terms of such agreements, is limited
to an amount equal to 30% of the total consideration paid by
SEACOR or its Affiliates pursuant to the Transactions Agreements
exceed, in the aggregate, 30% of such total consideration.
5. Claim Periods. The term "Claims Period" shall mean the
-------------
following:
(a) With respect to any claim for indemnity under
Section 2(a)(i) hereof, 2(a)(ii)(A) hereof for any breach of any
representation or warranty made by McCall pursuant to Section
4.18 of the Merger Agreement or a breach of Section 3 hereof,
sixty (60) days following the expiration of the applicable Tax
<PAGE>
statute of limitations with respect to the relevant taxable
period (including extensions);
(b) With respect to any claim for indemnity (i)
pursuant to Section 2(a)(ii)(A) hereof for any breach of any
representation or warranty made by McCall pursuant to (i) the
first sentence of Section 4.11(a) of the Merger Agreement, the
second sentence of Section 4.13(a) of the Merger Agreement or
Section 4.13(d)(i) of the Merger Agreement or (ii) pursuant to
Section 2(a)(ii)(B) or 2(a)(ii)(C) hereof, the period of time
commencing as of the date hereof and continuing for an unlimited
period of time thereafter;
(c) with respect to any other claim for indemnity
against the Stockholders hereunder, the period of time commencing
on the date hereof and expiring on the second anniversary of the
Closing Date;
(d) With respect to any claim for indemnity pursuant
to Section 2(b)(i) hereof for any breach of any representation or
warranty made by SEACOR pursuant to Section 5.10 of the Merger
Agreement or pursuant to Section 2(b)(ii) or 2(b)(iii) hereof,
the period of time commencing as of the date hereof continuing
for an unlimited period of time hereafter; and
(e) With respect to any other claim for indemnity
against SEACOR hereunder, the period of time commencing as of the
date hereof and expiring on the second anniversary of the Closing
Date.
6. [Intentionally Omitted]
7. Jurisdiction and Forum; Arbitration. Any controversy
-----------------------------------
arising under, out of, in connection with, or relating to, this
Agreement, and any amendment hereof, or the breach hereof or
thereof, shall be determined and settled by arbitration in New
York, New York, by an arbitrator or arbitrators mutually agreed
upon by SEACOR and the Representative or, if SEACOR and the
Representative shall fail or be unable to so agree within ten
Business Days after the written request therefor by SEACOR or the
Representative to the other, such arbitrator or arbitrators as
may be selected in accordance with the rules of the American
Arbitration Association. Any award rendered therein shall
specify the findings of fact of the arbitrator or arbitrators and
the reasons for such award, with reference to and reliance on
relevant law. Any such award shall be final and binding on each
and all of the parties thereto and their personal representa-
tives, and judgment may be entered thereon in any court having
jurisdiction thereof.
<PAGE>
8. Representations and Warranties of the Representative,
-----------------------------------------------------
the Stockholders and SEACOR.
---------------------------
(a) The Representative hereby represents and warrants
to each other party hereto that:
(i) this Agreement has been duly authorized,
executed and delivered by it and constitutes the legal,
valid and binding agreement of it, enforceable against it in
accordance with its terms, except as enforceability may be
limited by bankruptcy, insolvency, reorganization, or other
laws affecting creditors' rights and remedies generally and
by general principles of equity (regardless of whether such
enforceability is considered in a proceeding in equity or at
law); and
(ii) the execution, delivery and performance of
this Agreement and the consummation of the transactions
contemplated by this Agreement will not violate or conflict
with, constitute a breach of or default under, result in the
loss of any material benefit under, or permit the accelera-
tion of or entitle any party to accelerate any obligation
under or pursuant to, any material mortgage, lien, lease,
agreement, instrument, order, arbitration award, judgment or
decree to which it is a party or by which it or any of its
assets are bound.
(b) Each Stockholder hereby represents and warrants to
each other party hereto that:
(i) this Agreement has been duly authorized,
executed and delivered by such Stockholder and constitutes
the legal, valid and binding agreement of such Stockholder,
enforceable against such Stockholder in accordance with its
terms, except as enforceability may be limited by bank-
ruptcy, insolvency, reorganization, or other laws affecting
creditors' rights and remedies generally and by general
principles of equity (regardless of whether such enforce-
ability is considered in a proceeding in equity or at law);
and
(ii) the execution, delivery and performance of
this Agreement and the consummation of the transactions
contemplated by this Agreement will not violate or conflict
with, constitute a breach of or default under, result in the
loss of any material benefit under, or permit the accelera-
tion of or entitle any party to accelerate any obligation
under or pursuant to, any material mortgage, lien, lease,
agreement, instrument, order, arbitration award, judgment or
decree to which such Stockholder is a party or by which it
or any of its assets are bound.
<PAGE>
(c) SEACOR hereby represents and warrants to each
other party hereto that:
(i) this Agreement has been duly authorized,
executed and delivered by it and constitutes the legal,
valid and binding agreement of it, enforceable against it in
accordance with its terms, except as enforceability may be
limited by bankruptcy, insolvency, reorganization, or other
laws affecting creditors' rights and remedies generally and
by general principles of equity (regardless of whether such
enforceability is considered in a proceeding in equity or at
law); and
(ii) the execution, delivery and performance of
this Agreement and the consummation of the transactions
contemplated by this Agreement will not violate or conflict
with, constitute a breach of or default under, result in the
loss of any material benefit under, or permit the accelera-
tion of or entitle any party to accelerate any obligation
under or pursuant to, any material mortgage, lien, lease,
agreement, instrument, order, arbitration award, judgment or
decree to which it is a party or by which it or any of its
assets are bound.
9. Representative.
--------------
(a) Each of the Stockholders hereby constitutes and
appoints the Representative to act as the Representative under
this Agreement and the Merger Agreement as and to the extent
provided herein and therein. Each of the Stockholders agrees to
indemnify and hold harmless the Representative by reason of its
acting or failing to act in connection with any of the
transactions contemplated hereby and against any loss, liability
or expense the Representative may sustain or incur as a result of
serving as Representative hereunder, except such losses,
liabilities and expenses which are determined in an arbitration
proceeding to have resulted primarily from the gross negligence
or willful misconduct of the Representative. Each of the
Stockholders agrees that the Representative shall have no
liability whatsoever to any Indemnified Party, any Stockholder or
such Indemnified Party's or Stockholder's beneficiaries, heirs or
personal representatives for any matters arising out of this
Agreement except, in the case of the Stockholders, for liability
for such matters which are determined in an arbitration
proceeding to have resulted primarily from the gross negligence
or willful misconduct of the Representative. Each of the
Stockholders hereby agrees to reimburse the Representative upon
the request of the Representative for all reasonable expenses,
disbursements and advances incurred or made by the Representative
in the performance of its duties under this Agreement. The
Representative shall have the authority to act on behalf of and
to bind the Stockholders, in accordance with their proportionate
<PAGE>
interests as set forth on Exhibit A, for purposes of the
provisions of this Agreement to the extent set forth in this
Agreement. In no event shall the Representative be liable to any
Indemnified Party for any Stockholder's obligations under this
Agreement or the collection of any claim against any Stockholder.
(b) The initial Representative hereunder shall be
Norman McCall. In the event that Norman McCall, for any reason,
shall fail or be unable to continue to serve as Representative,
whether by reason of his death, incapacity, resignation or
otherwise, Alan McCall shall serve as successor Representative,
or in the event that Alan McCall, for any reason, shall fail or
be unable to serve as successor Representative, whether by reason
of his death, incapacity, resignation or otherwise, then the
successor Representative shall be elected by holders of a
majority of the interests reflected on Exhibit A hereto. The
rights, powers, privileges and obligations of the Representative
named hereunder shall be possessed by any successor
Representative with the same effect as though such successor had
originally been a party to this Agreement. The word
"Representative" as used in this Agreement means the
Representative or any representative acting hereunder.
10. Notices. All notices, communications and deliveries
-------
required or permitted by this Agreement shall be made in writing
signed by the party making the same, shall specify the Section of
this Agreement pursuant to which it is given or being made, and
shall be deemed given or made (i) on the date delivered if
delivered by telecopy or in person, (ii) on the third business
day after it is mailed if mailed by registered or certified mail
(return receipt requested) (with postage and other fees prepaid),
or (iii) on the day after it is delivered, prepaid, to an
overnight express delivery service that confirms to the sender
delivery on such day, as follows:
To SEACOR:
SEACOR Holdings, Inc.
1370 Avenue of the Americas
25th Floor
New York, New York 10019
Attn: Randall Blank
Telecopy No.: (212) 582-8522
with a copy to:
Weil, Gotshal & Manges LLP
767 Fifth Avenue
New York, New York 10153
Attn: David E. Zeltner, Esq.
Telecopy No.: (212) 310-8007
<PAGE>
To Stockholders and the Representative:
c/o McCall's Boat Rentals, Inc.
432 Marshall Street
Cameron, Louisiana 70631
Attn: Norman McCall
Telecopy No.: (318) 775-7025
with a copy to:
Stockwell, Sievert, Viccellio,
Clements & Shaddock
P.O. Box 2900
Lake Charles, Louisiana 70602
Attn: William E. Shaddock, Esq.
Telecopy No.: (318) 493-7210
with an additional copy to:
Jones, Walker, Waechter, Poitevent,
Carrere & Denegre, L.L.P.
Place St. Charles
201 St. Charles Avenue
New Orleans, Louisiana 70170-5100
Attn: Carl C. Hanemann, Esq.
Telecopy No.: (504) 582-8398
or to such other representative or at such other address of a
party as such party hereto may furnish to the other Parties in
writing. If notice is given pursuant to this Section 10 of any
assignment to a permitted successor or assign of a party hereto,
the notice shall be given as set forth above to such successor or
assign of such party.
11. Time of the Essence; Computation of Time. Time is of
----------------------------------------
the essence for each and every provision of this Agreement.
Whenever the last day for the exercise of any privilege or the
discharge of any duty under this Agreement shall fall upon a
Saturday, Sunday or any date on which banks in New Orleans,
Louisiana or New York, New York are closed, the party having such
privilege or duty may exercise such privilege or discharge such
duty on the next succeeding day which is a regular business day.
12. Successors in Interest. This Agreement shall be
----------------------
binding upon and shall inure to the benefit of the Parties and
their permitted successors and assigns, and any reference to a
party shall also be a reference to a permitted successor or
assign.
<PAGE>
13. Number; Gender. Whenever the context so requires, the
--------------
singular number shall include the plural and the plural shall
include the singular, and the gender of any pronoun shall include
the other genders.
14. Captions. The titles and captions contained in this
--------
Agreement are inserted in this Agreement only as a matter of
convenience and for reference and in no way define, limit, extend
or describe the scope of this Agreement or the intent of any
provision of this Agreement. Unless otherwise specified to the
contrary, all references to Sections are references to Sections
of this Agreement.
15. Amendments. To the extent permitted by law, this
----------
Agreement may be amended by a subsequent writing signed by all of
the Parties (other than the Stockholders) and Stockholders having
an aggregate proportionate interest, as reflected on Exhibit A
hereto at least equal to 80%.
16. Controlling Law; Integration; Waiver. This Agreement
------------------------------------
shall be governed by and construed and enforced in accordance
with the laws of the State of New York, without giving effect to
the principles thereof relating to the conflict or choice of
laws. This Agreement supersedes all negotiations, agreements
and understandings among the parties with respect to the subject
matter of this Agreement and constitutes the entire agreement
among the parties to this Agreement with respect to such subject
matter. The failure of any party at any time or times to require
performance of any provisions of this Agreement shall in no
manner affect the right to enforce the same. No waiver by any
party of any conditions, or of the breach of any term, provision,
warranty, representation, agreement or covenant contained in this
Agreement, whether by conduct or otherwise, in any one or more
instances shall be deemed or construed as a further or continuing
waiver of any such condition or breach of any other term,
provision, warranty, representation, agreement or covenant
contained in this Agreement.
17. Exclusive Remedy. The Parties agree that, from and
----------------
after the Effective Time (as defined in the Merger Agreement),
the rights and remedies of any party under this Agreement shall
be the sole and exclusive remedy of the parties for Losses
arising out of any breach of this Agreement, the Merger
Agreement, the Registration Rights Agreement or any of the
transactions contemplated herein or therein.
18. Severability. Any provision of this Agreement which is
------------
prohibited or unenforceable in any jurisdiction will, as to such
jurisdiction, be ineffective to the extent of such prohibition or
unenforceability without invalidating the remaining provisions of
this Agreement, and any such prohibition or unenforceability in
any jurisdiction will not invalidate or render unenforceable such
<PAGE>
provision in any other jurisdiction. To the extent permitted by
law, the Parties waive any provision of law which renders any
such provision prohibited or unenforceable in any respect.
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be executed as of the date first above written.
SEACOR HOLDINGS, INC.
---------------------
By: /s/ Milton Rose
------------------------------------
Name: Milton Rose
Title: Vice-President
STOCKHOLDERS
------------
/s/ Norman F. McCall
----------------------------------------
Norman F. McCall
/s/ Joyce C. McCall
----------------------------------------
Joyce C. McCall
/s/ H. Alan McCall
----------------------------------------
H. Alan McCall
/s/ Phyllis McCall Johnston
----------------------------------------
Phyllis McCall Johnston
/s/ Joseph K. McCall
----------------------------------------
Joseph K. McCall
NYFS11...:\93\73293\0011\1196\EXH5306C.220
EXHIBIT 10.3
INDEMNIFICATION AGREEMENT
-------------------------
THIS INDEMNIFICATION AGREEMENT ("Agreement") is made and
entered into as of the 31st day of May, 1996, among all of the
stockholders of N.F. McCall Crews, Inc., a Louisiana corporation
("McCall"), listed on Exhibit A hereto (collectively, the
"Stockholders"), Norman McCall, acting as representative of the
Stockholders (in such capacity and his successor(s) being
referred to as the "Representative"), and SEACOR Holdings, Inc.,
a Delaware corporation ("SEACOR").
RECITALS:
--------
A. SEACOR, SEACOR N.F., Inc. ("Merger Sub") and McCall
have entered into an Agreement and Plan of Merger, dated as of
May 31, 1996 (the "Merger Agreement"), pursuant to which Merger
Sub will be merged with and into McCall;
B. The execution and delivery of this Agreement by each
of the Stockholders constitute a condition precedent to SEACOR's
obligations under the Merger Agreement; and
C. On the date hereof, pursuant to other acquisition
transactions contemplated by certain other agreements of even
date herewith (the "Other Agreements" and, together with the
Merger Agreement, the "Transaction Agreements"), SEACOR also is
acquiring, directly or indirectly, all of the equity interests in
the other Companies (as defined in the Merger Agreement) and, in
connection therewith, SEACOR and the stockholders of certain of
such other Companies will execute and deliver Indemnification
Agreements of even date herewith that are similar to this
Agreement (the "Other Indemnification Agreements" and, together
with this Agreement, the "Indemnification Agreements").
In consideration of the foregoing and of the
representations, warranties, covenants and agreements set forth
in this Agreement, the parties hereto, intending to be legally
bound, agree as follows:
1. Definitions. Capitalized terms used but not otherwise
-----------
defined in this Agreement shall have the meanings ascribed to
such terms in the Merger Agreement.
<PAGE>
2. Indemnification.
---------------
(a) Subject to the other provisions of this Agreement,
from and after the Closing, the Stockholders shall indemnify and
hold harmless, severally and not jointly, in accordance with
their respective proportionate interests as reflected on Exhibit
A hereto (except as provided in the proviso to this Section 2(a))
SEACOR and its Affiliates, each of their respective officers,
directors, employees, agents and representatives, and each of the
heirs, executors, successors and assigns of any of the foregoing
(individually, a "SEACOR Indemnified Party" and, collectively,
the "SEACOR Indemnified Parties"), against any losses, claims,
damages, liabilities or expenses whenever arising or incurred
(including, without limitation, amounts paid in settlement,
reasonable costs of investigation and reasonable attorneys' fees
and expenses) (hereinafter "Losses") arising out of or relating
to (i) any and all Taxes with respect to all taxable periods (or
portions thereof) of each member of the McCall Group ending on or
prior to the Closing Date and, to the extent provided in Section
3(a) hereof, all taxable periods that include, and end after, the
Closing Date (other than, in each case, Taxes for which
sufficient current accruals have been made on the Closing Balance
Sheet) and (ii) any breach of any representation, warranty,
covenant or agreement made by (A) McCall in the Merger Agreement,
(B) the Stockholders in the Investment and Registration Rights
Agreement among SEACOR and the Stockholders of even date herewith
(the "Registration Rights Agreement") and (C) the Stockholders in
this Agreement; provided, however, that, with respect to any
-------- -------
breach of any representation or warranty made by a Stockholder
pursuant to the Registration Rights Agreement or this Agreement,
no Stockholder (other than the Stockholder who commits such
breach) shall have liability for such breach. It is understood
that the Stockholders shall have no liability for indemnification
under clause (ii) above in the absence of a breach of any
representation, warranty, covenant or agreement referred to
therein.
(b) Subject to the other provisions of this Agreement, from
and after the Closing, SEACOR shall indemnify and hold harmless
the Stockholders and each of their employees, agents and
representatives, and each of the heirs, executors, successors and
assigns of any of the foregoing (individually, a "McCall
Indemnified Party" and, collectively, the "McCall Indemnified
Parties"), against any Losses arising out of or relating to any
breach of any representation, warranty, covenant or agreement
made by SEACOR in (i) the Merger Agreement, (ii) the Registration
Rights Agreement or (iii) this Agreement.
(c) For the purposes hereof, a SEACOR Indemnified Party or
a McCall Indemnified Party seeking indemnification pursuant to
this Agreement is referred to as an "Indemnified Party", and the
<PAGE>
party from whom such indemnification is sought is referred to as
the "Indemnifying Party."
(d) No Indemnified Party shall be entitled to make any
claim for indemnification pursuant to this Agreement after the
applicable Claims Period (as defined in Section 5 hereof).
(e) Except as otherwise provided in Section 3 hereof in
respect of matters relating to Taxes, the following provisions
shall apply:
(i) Promptly after receipt by an Indemnified
Party of notice of the commencement of any action or
proceeding involving a claim in respect of which
indemnification is being sought, such Indemnified Party
will, if a claim for indemnification hereunder is to be made
against the Indemnifying Party, give written notice to the
Indemnifying Party of the commencement of such action or
proceeding, the basis for such claim for indemnification and
such other information relating thereto as the Indemnifying
Party may reasonably request; provided, however, that
-------- -------
failure to so notify the Indemnifying Party or to provide
such information shall not relieve such Indemnifying Party
from any liability which it may have with respect to such
claim, except to the extent that it is actually materially
prejudiced by such failure to give notice.
(ii) In case any such action is brought against
an Indemnified Party, unless in such Indemnified Party's
reasonable judgment (A) a conflict of interest between the
Indemnified Party and the Indemnifying Party may exist in
respect of such claim, or (B) the Indemnified Party has
available to it reasonable defenses which are different from
or additional to those available to the Indemnifying Party,
the Indemnifying Party shall be entitled to assume and
control the defense of such action to the extent that it may
wish, with counsel reasonably satisfactory to such
Indemnified Party, and after notice from the Indemnifying
Party to such Indemnified Party of its election so to assume
and control the defense of such action, the Indemnifying
Party shall not be liable to such Indemnified Party for any
legal or other expenses subsequently incurred by the latter
in connection with the defense of such action other than
reasonable costs of investigation. If in such case the
Indemnifying Party elects not to do so, or if the
circumstances described in clause (A) or (B) above shall
apply, the Indemnified Party shall retain counsel reasonably
satisfactory to the Indemnifying Party, shall inform the
Indemnifying Party of the progress of the defense upon
request and shall respond to the reasonable requests of the
Indemnifying Party for information with respect thereto. In
any case in which the Indemnifying Party elects to assume
<PAGE>
the defense, any Indemnified Party shall have the right to
retain its own counsel, but the fees and disbursements of
such counsel shall be at the expense of such Indemnified
Party unless the Indemnifying Party and such Indemnified
Party shall have mutually agreed to the retention of such
counsel. It is understood that the Indemnifying Party shall
not, in connection with any action or related actions in the
same jurisdiction, be liable for the fees and disbursements
of more than one separate firm qualified in such
jurisdiction to act as counsel for all Indemnified Parties,
unless in any such Indemnified Party's reasonable judgment
(i) a conflict of interest between such Indemnified Party
and any other Indemnified Party may exist in respect of such
claim or (ii) such Indemnified Party has available to it
reasonable defenses which are different from or additional
to those available to other Indemnified Parties. The
Indemnifying Party shall not be liable for any settlement of
any proceeding effected without its written consent but if
settled with such consent or if there shall be a final
judgment for the plaintiff, the Indemnifying Party agrees to
indemnify the Indemnified Party from and against any Losses
by reason of such settlement or judgment (it being
understood that, as provided in Section 2(a), if the
Stockholders are the Indemnifying Party such indemnification
obligation shall be several and not joint, in accordance
with the Stockholders' proportionate interests as reflected
on Exhibit A hereto, except as otherwise provided in the
proviso to such Section 2(a)). Other than with respect to
claims under Section 2(a)(i) hereof, the Indemnifying Party
shall not, without the consent of the Indemnified Party,
consent to entry of any judgment or enter into any
settlement which does not include as an unconditional term
the giving by the claimant or plaintiff to such Indemnified
Party of a release from all liability in respect to such
claim or litigation. Any dispute as to whether any
Indemnified Party is entitled to indemnification in
connection with any action or proceeding under Section
2(e)(i) or this Section 2(e)(ii), the defense or settlement
of such action or proceeding, or any other rights or
obligations of the parties hereto in connection with such
action or proceeding shall be submitted to arbitration in
accordance with Section 7 of this Agreement.
(iii) In the event that an Indemnified Party
shall claim a right to payment pursuant to this Agreement
with respect to which there has been no action or proceeding
involving such claim pursuant to Section 2(e)(i) hereof,
such Indemnified Party shall send written notice of such
claim to the Indemnifying Party. Such notice shall specify
the basis for such claim in reasonable detail. As promptly
as possible after the Indemnified Party has given such
notice, such Indemnified Party and the Indemnifying Party
<PAGE>
shall establish the merits and amount of Losses, if any, to
which the Indemnified Party is entitled. If the parties do
not agree with respect to these matters within 30 days after
the giving of such notice, either party may submit the
matter to arbitration in accordance with Section 7 of this
Agreement. In such arbitration, if the arbitrator
determines that a breach of a representation, warranty,
covenant or agreement in the Merger Agreement, the
Registration Rights Agreement or this Agreement by the
Indemnifying Party occurred and that such breach caused
Losses to an Indemnified Party, the arbitrator will
determine the amount of any such Losses. Within ten
business days after the final determination of the merits of
such claim and amount of such Losses, the Indemnifying Party
shall, subject to the limitations set forth herein, deliver
to the Indemnified Party an amount of cash in immediately
available funds sufficient to satisfy such Losses or the
portion of such Losses for which such Indemnifying Party is
obligated to provide indemnity hereunder.
3. Covenants Regarding Tax Matters. (a) To the extent
-------------------------------
permitted by applicable law, the Representative, McCall and
SEACOR will elect or cause to be elected with the relevant taxing
authority to close the taxable period of each member of the
McCall Group on the Closing Date. In any case where applicable
law does not permit each member of the McCall Group to close its
taxable year on the Closing Date, then Taxes, if any,
attributable to the taxable period of each member of the McCall
Group beginning before and ending after the Closing Date shall be
allocated (i) to the Stockholders for the period up to and
including the Closing Date to the extent such Taxes exceed the
reserve therefor on the Closing Balance Sheet and (ii) to SEACOR
for the period up to and including the Closing Date to the extent
such Taxes do not exceed the reserve therefor on the Closing Date
Balance Sheet and for the period subsequent to the Closing Date.
For purposes of this Section 3(a), Taxes for the period up to and
including the Closing Date and for the period subsequent to the
Closing Date shall be determined on the basis of an interim
closing of the books as of the Closing Date or, to the extent not
susceptible to such allocation, by apportionment on the basis of
elapsed days.
(b) (i) The Representative shall be responsible for
causing to be filed all Returns required to be filed by or on
behalf of each member of the McCall Group on or before the
Closing Date (taking into account applicable extensions) and
shall pay or cause to be paid any Taxes shown to be due thereon.
The Representative shall file or cause to be filed all such
Returns in a manner consistent with past practices and, upon
SEACOR's request, shall provide copies of such Returns to SEACOR
for SEACOR's review and comment at least fifteen (15) business
days prior to filing. SEACOR shall be responsible for filing or
<PAGE>
causing to be filed all Returns required to be filed by or on
behalf of each member of the McCall Group after the Closing Date
(taking into account applicable extensions) and shall pay or
cause to be paid any Taxes shown to be due thereon.
(ii) With respect to any Return of any member of
the McCall Group required to be filed by SEACOR for a taxable
period of such member of the McCall Group beginning before and
ending on or after the Closing Date, the Representative shall
provide SEACOR with a statement, within forty-five days after the
Closing Date, setting forth the amount of Tax that the
Representative believes is allocable to the Stockholders pursuant
to Section 3(a) hereof or for which the Stockholders are
responsible pursuant to Section 2(a)(i) hereof (the "Statement")
and copies of such Tax Return. The Statement shall provide (with
reasonable specificity) the bases on which such Taxes were
allocable to the Stockholders. SEACOR shall have the right to
review such Tax Return and the Statement prior to the filing of
such Tax Return. The Representative and SEACOR agree to consult
and resolve in good faith any issue arising as a result of the
review of such Tax Return and the Statement and to mutually
consent to the filing as promptly as possible of such Tax Return.
If the parties are unable to resolve any disagreement within
fifteen business days following SEACOR's receipt of such Tax
Return and Statement, the parties shall jointly request such
independent accounting firm as they shall select to resolve any
issue in dispute as promptly as possible and shall cooperate with
such accounting firm to resolve such disagreement. If such
independent accounting firm is unable to make a determination
with respect to any disputed issue prior to the due date
(including extensions) for the filing of the Tax Return in
question, then SEACOR may file such Tax Return on the due date
(including extensions) therefor without such determination having
been made. Notwithstanding the filing of such Tax Return, such
independent accounting firm shall make a determination with
respect to any disputed issue, and the amount of Taxes that are
allocated to the Stockholders pursuant to Section 3(a) hereof for
which the Stockholders are responsible pursuant to Section
2(a)(i) hereof shall be as determined by such independent
accounting firm. The fees and expenses of such independent
accounting firm shall be paid one-half by SEACOR and one-half by
the Stockholders. Not later than five (5) business days before
the due date (including extensions) for the filing of such Tax
Return or, in the case of a dispute, not later than five (5)
business days after notice to the Representative of resolution
thereof, the Stockholders shall pay to SEACOR an amount equal to
the Taxes shown on the Statement as being the responsibility of
the Stockholders pursuant to Section 2(a)(i) hereof or allocable
to the Stockholders pursuant to Section 3(a) hereof (as the case
may be). No payment pursuant to this Section 3(b)(ii) shall
excuse the Stockholders from their indemnification obligations
pursuant to Section 2(a)(i) hereof should the amount of Taxes as
<PAGE>
ultimately determined (on audit or otherwise), for the periods
covered by such Returns and which are the responsibility of the
Stockholders, exceed the amount of the Stockholders payment under
this Section 3(b)(ii).
(iii) The Stockholders may not file any amended
Returns or refund claims in respect of any taxable period of any
member of the McCall Group ending on or prior to the Closing Date
without the prior written consent of SEACOR.
(c) The Stockholders shall cooperate fully with SEACOR
and make available to SEACOR in a timely fashion such Tax data
and other information as may be reasonably required for the
preparation by SEACOR of any Returns required to be prepared and
filed by SEACOR hereunder. The Stockholders and SEACOR shall
make available to the other, as reasonably requested, all
information, records or documents in their possession relating to
Tax liabilities of each member of the McCall Group for all
taxable periods of each such member of the McCall Group ending
on, prior to or including the Closing Date and shall preserve all
such information, records and documents until the expiration of
any applicable Tax statute of limitations or extensions thereof
or, if a proceeding has been instituted for which the
information, records or documents is required, until there is a
final determination with respect to such proceeding.
(d) (i) SEACOR shall promptly notify the
Representative upon receipt by SEACOR or McCall of written notice
of any Tax audits of or proposed assessments against any member
of the McCall Group for taxable periods of any member of the
McCall Group ending on or prior to the Closing Date; provided,
--------
however, that the failure of SEACOR to give the Representative
-------
prompt notice as required herein shall not relieve the
Stockholders of any of their obligations under Section 2 or 3
hereof, except to the extent that the Stockholders are actually
and materially prejudiced thereby. SEACOR shall have the right
to represent the interests of any member of the McCall Group in
any such Tax audit or administrative or court proceeding and to
employ counsel reasonably acceptable to the Representative;
provided, that SEACOR may not agree to a settlement or compromise
thereof without the prior written consent of the Representative,
which consent may be withheld solely in the event that the
Representative has been advised by counsel reasonably acceptable
to SEACOR that it is more likely than not that the issue under
audit (or the proposed assessment) would be decided favorably to
the member of the McCall Group. The Stockholders agree that they
will cooperate fully with SEACOR and its counsel in the defense
against or compromise of any claim in any said audit or
proceeding.
(ii) The Stockholders shall promptly notify SEACOR
upon receipt by the Stockholders of written notice of any Tax
<PAGE>
audit or proposed assessment or other proposed change or
adjustment which may affect any member of the McCall Group or
their Tax attributes. The Stockholders shall keep SEACOR duly
informed of the progress thereof and, if the results of such Tax
audit or proceeding may have an adverse effect on any member of
the McCall Group, SEACOR or its affiliates for any taxable period
including or ending after the Closing Date, then the Stockholders
may not agree to a settlement or compromise thereof without
SEACOR's consent, which written consent will not be unreasonably
withheld.
(e) The Stockholders and SEACOR agree to treat any
indemnity payment made pursuant to this Agreement as an
adjustment to the Total Merger Consideration for federal, state,
local and foreign income tax purposes. If, notwithstanding such
treatment by the parties, any indemnity payment is determined to
be taxable to SEACOR, McCall or its Affiliates by any taxing
authority, the Stockholders shall indemnify SEACOR and its
Affiliates for any Taxes payable by reason of the receipt of such
indemnity payment (including any payments under this Section
3(e).
4. Liability Limits.
----------------
(a) Neither the Stockholders, on the one hand, nor
SEACOR on the other, shall have any liability for Losses in
respect of claims for indemnification under Section 2 hereof
until the aggregate amount of such Losses exceeds the greater
of $200,000 or 1% of the Total Merger Consideration (the
"Threshold"), in which event the applicable Indemnifying Party or
Parties shall, subject to the other provisions of this Section 4,
be liable for the total amount of such Losses (including Losses
below the Threshold).
(b) The aggregate liability of any Stockholder for
Losses pursuant to this Agreement shall not exceed the following:
(i) in the absence of fraud, with respect to any
claim for indemnity pursuant to (A) Section
2(a)(i) hereof, (B) Section 2(a)(ii)(A) hereof for
any breach of any representation or warranty made
by McCall in the first sentence of Section 4.11(a)
of the Merger Agreement, in Section 4.13 of the
Merger Agreement, or (C) pursuant to Section
2(a)(ii)(B) or 2(a)(ii)(C) hereof, an amount equal
to the value of the total consideration paid to
such Stockholder pursuant to the Transaction
Agreements; and
(ii) with respect to any other claim for indemnity
hereunder, an amount equal to 30% of the value of
<PAGE>
the total consideration paid to such Stockholder
pursuant to the Transaction Agreements;
provided, however, that, in the absence of fraud, (1) in no event
-------- -------
shall the liability of any Stockholder under the Indemnification
Agreements exceed, in the aggregate, the value of the total
consideration paid to such Stockholder pursuant to the
Transaction Agreements and (2) in no event shall the liability of
any Stockholder under the Indemnification Agreements in respect
of matters for which liability, by the terms of such agreements,
is limited to an amount equal to 30% of the total consideration
paid such Stockholder pursuant to the Transaction Agreements
exceed, in the aggregate, an amount equal to 30% of such total
consideration.
(c) The aggregate liability of SEACOR for Losses
pursuant to this Agreement shall not exceed the following:
(i) with respect to any claim for indemnity
pursuant to (A) Section 2(b)(i) hereof for any
breach of any representation or warranty made by
SEACOR pursuant to Section 5.10 of the Merger
Agreement, or (B) Section 2(b)(ii) or 2(b)(iii)
hereof, an amount equal to the Total Merger
Consideration; and
(ii) with respect to any other claim for indemnity
hereunder, an amount equal to 30% of the Total
Merger Consideration;
provided, however, that, in the absence of fraud, (1) in no event
-------- -------
shall the liability of SEACOR under the Indemnification
Agreements exceed, in the aggregate, the value of the total
consideration paid by SEACOR or its Affiliates pursuant to the
Transaction Agreements or (2) in no event shall the liability of
SEACOR under the Indemnification Agreements in respect of matters
for which liability, by the terms of such agreements, is limited
to an amount equal to 30% of the total consideration paid by
SEACOR or its Affiliates pursuant to the Transactions Agreements
exceed, in the aggregate, 30% of such total consideration.
5. Claim Periods. The term "Claims Period" shall mean the
-------------
following:
(a) With respect to any claim for indemnity under
Section 2(a)(i) hereof, 2(a)(ii)(A) hereof for any breach of any
representation or warranty made by McCall pursuant to Section
4.18 of the Merger Agreement or a breach of Section 3 hereof,
sixty (60) days following the expiration of the applicable Tax
statute of limitations with respect to the relevant taxable
period (including extensions);
<PAGE>
(b) With respect to any claim for indemnity (i)
pursuant to Section 2(a)(ii)(A) hereof for any breach of any
representation or warranty made by McCall pursuant to (i) the
first sentence of Section 4.11(a) of the Merger Agreement,
Section 4.13 of the Merger Agreement or (ii) pursuant to Section
2(a)(ii)(B) or 2(a)(ii)(C) hereof, the period of time commencing
as of the date hereof and continuing for an unlimited period of
time thereafter;
(c) with respect to any other claim for indemnity
against the Stockholders hereunder, the period of time commencing
on the date hereof and expiring on the second anniversary of the
Closing Date;
(d) With respect to any claim for indemnity pursuant
to Section 2(b)(i) hereof for any breach of any representation or
warranty made by SEACOR pursuant to Section 5.10 of the Merger
Agreement or pursuant to Section 2(b)(ii) or 2(b)(iii) hereof,
the period of time commencing as of the date hereof continuing
for an unlimited period of time hereafter; and
(e) With respect to any other claim for indemnity
against SEACOR hereunder, the period of time commencing as of the
date hereof and expiring on the second anniversary of the Closing
Date.
6. [Intentionally Omitted]
7. Jurisdiction and Forum; Arbitration. Any controversy
-----------------------------------
arising under, out of, in connection with, or relating to, this
Agreement, and any amendment hereof, or the breach hereof or
thereof, shall be determined and settled by arbitration in New
York, New York, by an arbitrator or arbitrators mutually agreed
upon by SEACOR and the Representative or, if SEACOR and the
Representative shall fail or be unable to so agree within ten
Business Days after the written request therefor by SEACOR or the
Representative to the other, such arbitrator or arbitrators as
may be selected in accordance with the rules of the American
Arbitration Association. Any award rendered therein shall
specify the findings of fact of the arbitrator or arbitrators and
the reasons for such award, with reference to and reliance on
relevant law. Any such award shall be final and binding on each
and all of the parties thereto and their personal representa-
tives, and judgment may be entered thereon in any court having
jurisdiction thereof.
8. Representations and Warranties of the Representative,
-----------------------------------------------------
the Stockholders and SEACOR.
---------------------------
(a) The Representative hereby represents and warrants
to each other party hereto that:
<PAGE>
(i) this Agreement has been duly authorized,
executed and delivered by it and constitutes the legal,
valid and binding agreement of it, enforceable against it in
accordance with its terms, except as enforceability may be
limited by bankruptcy, insolvency, reorganization, or other
laws affecting creditors' rights and remedies generally and
by general principles of equity (regardless of whether such
enforceability is considered in a proceeding in equity or at
law); and
(ii) the execution, delivery and performance of
this Agreement and the consummation of the transactions
contemplated by this Agreement will not violate or conflict
with, constitute a breach of or default under, result in the
loss of any material benefit under, or permit the accelera-
tion of or entitle any party to accelerate any obligation
under or pursuant to, any material mortgage, lien, lease,
agreement, instrument, order, arbitration award, judgment or
decree to which it is a party or by which it or any of its
assets are bound.
(b) Each Stockholder hereby represents and warrants to
each other party hereto that:
(i) this Agreement has been duly authorized,
executed and delivered by such Stockholder and constitutes
the legal, valid and binding agreement of such Stockholder,
enforceable against such Stockholder in accordance with its
terms, except as enforceability may be limited by bank-
ruptcy, insolvency, reorganization, or other laws affecting
creditors' rights and remedies generally and by general
principles of equity (regardless of whether such enforce-
ability is considered in a proceeding in equity or at law);
and
(ii) the execution, delivery and performance of
this Agreement and the consummation of the transactions
contemplated by this Agreement will not violate or conflict
with, constitute a breach of or default under, result in the
loss of any material benefit under, or permit the accelera-
tion of or entitle any party to accelerate any obligation
under or pursuant to, any material mortgage, lien, lease,
agreement, instrument, order, arbitration award, judgment or
decree to which such Stockholder is a party or by which it
or any of its assets are bound.
(c) SEACOR hereby represents and warrants to each
other party hereto that:
(i) this Agreement has been duly authorized,
executed and delivered by it and constitutes the legal,
valid and binding agreement of it, enforceable against it in
<PAGE>
accordance with its terms, except as enforceability may be
limited by bankruptcy, insolvency, reorganization, or other
laws affecting creditors' rights and remedies generally and
by general principles of equity (regardless of whether such
enforceability is considered in a proceeding in equity or at
law); and
(ii) the execution, delivery and performance of
this Agreement and the consummation of the transactions
contemplated by this Agreement will not violate or conflict
with, constitute a breach of or default under, result in the
loss of any material benefit under, or permit the accelera-
tion of or entitle any party to accelerate any obligation
under or pursuant to, any material mortgage, lien, lease,
agreement, instrument, order, arbitration award, judgment or
decree to which it is a party or by which it or any of its
assets are bound.
9. Representative.
--------------
(a) Each of the Stockholders hereby constitutes and
appoints the Representative to act as the Representative under
this Agreement and the Merger Agreement as and to the extent
provided herein and therein. Each of the Stockholders agrees to
indemnify and hold harmless the Representative by reason of its
acting or failing to act in connection with any of the
transactions contemplated hereby and against any loss, liability
or expense the Representative may sustain or incur as a result of
serving as Representative hereunder, except such losses,
liabilities and expenses which are determined in an arbitration
proceeding to have resulted primarily from the gross negligence
or willful misconduct of the Representative. Each of the
Stockholders agrees that the Representative shall have no
liability whatsoever to any Indemnified Party, any Stockholder or
such Indemnified Party's or Stockholder's beneficiaries, heirs or
personal representatives for any matters arising out of this
Agreement except, in the case of the Stockholders, for liability
for such matters which are determined in an arbitration
proceeding to have resulted primarily from the gross negligence
or willful misconduct of the Representative. Each of the
Stockholders hereby agrees to reimburse the Representative upon
the request of the Representative for all reasonable expenses,
disbursements and advances incurred or made by the Representative
in the performance of its duties under this Agreement. The
Representative shall have the authority to act on behalf of and
to bind the Stockholders, in accordance with their proportionate
interests as set forth on Exhibit A, for purposes of the
provisions of this Agreement to the extent set forth in this
Agreement. In no event shall the Representative be liable to any
Indemnified Party for any Stockholder's obligations under this
Agreement or the collection of any claim against any Stockholder.
<PAGE>
(b) The initial Representative hereunder shall be
Norman McCall. In the event that Norman McCall, for any reason,
shall fail or be unable to continue to serve as Representative,
whether by reason of his death, incapacity, resignation or
otherwise, Alan McCall shall serve as successor Representative,
or in the event that Alan McCall, for any reason, shall fail or
be unable to serve as successor Representative, whether by reason
of his death, incapacity, resignation or otherwise, then the
successor Representative shall be elected by holders of a
majority of the interests reflected on Exhibit A hereto. The
rights, powers, privileges and obligations of the Representative
named hereunder shall be possessed by any successor
Representative with the same effect as though such successor had
originally been a party to this Agreement. The word
"Representative" as used in this Agreement means the
Representative or any representative acting hereunder.
10. Notices. All notices, communications and deliveries
-------
required or permitted by this Agreement shall be made in writing
signed by the party making the same, shall specify the Section of
this Agreement pursuant to which it is given or being made, and
shall be deemed given or made (i) on the date delivered if
delivered by telecopy or in person, (ii) on the third business
day after it is mailed if mailed by registered or certified mail
(return receipt requested) (with postage and other fees prepaid),
or (iii) on the day after it is delivered, prepaid, to an
overnight express delivery service that confirms to the sender
delivery on such day, as follows:
To SEACOR:
SEACOR Holdings, Inc.
1370 Avenue of the Americas
25th Floor
New York, New York 10019
Attn: Randall Blank
Telecopy No.: (212) 582-8522
with a copy to:
Weil, Gotshal & Manges LLP
767 Fifth Avenue
New York, New York 10153
Attn: David E. Zeltner, Esq.
Telecopy No.: (212) 310-8007
To Stockholders and the Representative:
c/o McCall's Boat Rentals, Inc.
432 Marshall Street
Cameron, Louisiana 70631
Attn: Norman McCall
Telecopy No.: (318) 775-7025
<PAGE>
with a copy to:
Stockwell, Sievert, Viccellio,
Clements & Shaddock
P.O. Box 2900
Lake Charles, Louisiana 70602
Attn: William E. Shaddock, Esq.
Telecopy No.: (318) 493-7210
with an additional copy to:
Jones, Walker, Waechter, Poitevent,
Carrere & Denegre, L.L.P.
Place St. Charles
201 St. Charles Avenue
New Orleans, Louisiana 70170-5100
Attn: Carl C. Hanemann, Esq.
Telecopy No.: (504) 582-8398
or to such other representative or at such other address of a
party as such party hereto may furnish to the other Parties in
writing. If notice is given pursuant to this Section 10 of any
assignment to a permitted successor or assign of a party hereto,
the notice shall be given as set forth above to such successor or
assign of such party.
11. Time of the Essence; Computation of Time. Time is of
----------------------------------------
the essence for each and every provision of this Agreement.
Whenever the last day for the exercise of any privilege or the
discharge of any duty under this Agreement shall fall upon a
Saturday, Sunday or any date on which banks in New Orleans,
Louisiana or New York, New York are closed, the party having such
privilege or duty may exercise such privilege or discharge such
duty on the next succeeding day which is a regular business day.
12. Successors in Interest. This Agreement shall be
----------------------
binding upon and shall inure to the benefit of the Parties and
their permitted successors and assigns, and any reference to a
party shall also be a reference to a permitted successor or
assign.
13. Number; Gender. Whenever the context so requires, the
--------------
singular number shall include the plural and the plural shall
include the singular, and the gender of any pronoun shall include
the other genders.
14. Captions. The titles and captions contained in this
--------
Agreement are inserted in this Agreement only as a matter of
convenience and for reference and in no way define, limit, extend
or describe the scope of this Agreement or the intent of any
<PAGE>
provision of this Agreement. Unless otherwise specified to the
contrary, all references to Sections are references to Sections
of this Agreement.
15. Amendments. To the extent permitted by law, this
----------
Agreement may be amended by a subsequent writing signed by all of
the Parties (other than the Stockholders) and Stockholders having
an aggregate proportionate interest, as reflected on Exhibit A
hereto at least equal to 80%.
16. Controlling Law; Integration; Waiver. This Agreement
------------------------------------
shall be governed by and construed and enforced in accordance
with the laws of the State of New York, without giving effect to
the principles thereof relating to the conflict or choice of
laws. This Agreement supersedes all negotiations, agreements
and understandings among the parties with respect to the subject
matter of this Agreement and constitutes the entire agreement
among the parties to this Agreement with respect to such subject
matter. The failure of any party at any time or times to require
performance of any provisions of this Agreement shall in no
manner affect the right to enforce the same. No waiver by any
party of any conditions, or of the breach of any term, provision,
warranty, representation, agreement or covenant contained in this
Agreement, whether by conduct or otherwise, in any one or more
instances shall be deemed or construed as a further or continuing
waiver of any such condition or breach of any other term,
provision, warranty, representation, agreement or covenant
contained in this Agreement.
17. Exclusive Remedy. The Parties agree that, from and
----------------
after the Effective Time (as defined in the Merger Agreement),
the rights and remedies of any party under this Agreement shall
be the sole and exclusive remedy of the parties for Losses
arising out of any breach of this Agreement, the Merger
Agreement, the Registration Rights Agreement or any of the
transactions contemplated herein or therein.
18. Severability. Any provision of this Agreement which is
------------
prohibited or unenforceable in any jurisdiction will, as to such
jurisdiction, be ineffective to the extent of such prohibition or
unenforceability without invalidating the remaining provisions of
this Agreement, and any such prohibition or unenforceability in
any jurisdiction will not invalidate or render unenforceable such
provision in any other jurisdiction. To the extent permitted by
law, the Parties waive any provision of law which renders any
such provision prohibited or unenforceable in any respect.
<PAGE>
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be executed as of the date first above written.
SEACOR HOLDINGS, INC.
---------------------
By: /s/ Milton Rose
-----------------------------------
Name: Milton Rose
Title: Vice-President
STOCKHOLDERS
------------
/s/ Norman F. McCall
----------------------------------------
Norman F. McCall
/s/ Joyce C. McCall
----------------------------------------
Joyce C. McCall
NYFS11...:\93\73293\0011\1711\EXH5306C.56A
EXHIBIT 10.4
INDEMNIFICATION AGREEMENT
-------------------------
THIS INDEMNIFICATION AGREEMENT ("Agreement") is made and
entered into as of the 31st day of May, 1996, among all of the
members of McCall Crewboats, L.L.C., a Louisiana limited
liability company (the "Company"), listed on Exhibit A hereto
(collectively, the "Members"), Norman McCall, acting as
representative of the Members (in such capacity and his
successor(s) being referred to as the "Representative"), and
SEACOR Holdings, Inc., a Delaware corporation ("SEACOR").
RECITALS:
--------
A. SEACOR, McCall Enterprises, Inc., McCall Support
Vessels, Inc. (McCall Enterprises, Inc. and McCall Support
Vessels, Inc. being referred to collectively as "McCall"), and
the Members have entered into an Interest Exchange Agreement
relating to the Company, dated as of May 31, 1996 (the "Exchange
Agreement"), pursuant to which McCall shall acquire the Company
Interests owned by the Members in exchange for SEACOR Common
Stock;
B. The execution and delivery of this Agreement by each
of the Members constitute a condition precedent to the
obligations of McCall and SEACOR under the Exchange Agreement;
and
C. On the date hereof, pursuant to other acquisition
transactions contemplated by certain other agreements of even
date herewith (the "Other Agreements" and, together with the
Exchange Agreement, the "Transaction Agreements"), SEACOR also is
acquiring, directly or indirectly, all of the equity interests in
the other Companies (as defined in the Exchange Agreement) and,
in connection therewith, SEACOR and the stockholders of certain
of such other Companies will execute and deliver Indemnification
Agreements of even date herewith that are similar to this
Agreement (the "Other Indemnification Agreements" and, together
with this Agreement, the "Indemnification Agreements").
In consideration of the foregoing and of the
representations, warranties, covenants and agreements set forth
in this Agreement, the parties hereto, intending to be legally
bound, agree as follows:
<PAGE>
1. Definitions. Capitalized terms used but not otherwise
-----------
defined in this Agreement shall have the meanings ascribed to
such terms in the Exchange Agreement.
2. Indemnification.
---------------
(a) Subject to the other provisions of this Agreement,
from and after the Closing, the Members shall indemnify and hold
harmless, severally and not jointly, in accordance with their
respective proportionate interests as reflected on Exhibit A
hereto (except as provided in the proviso to this Section 2(a))
SEACOR and its Affiliates, each of their respective officers,
directors, employees, agents and representatives, and each of the
heirs, executors, successors and assigns of any of the foregoing
(individually, a "SEACOR Indemnified Party" and, collectively,
the "SEACOR Indemnified Parties"), against any losses, claims,
damages, liabilities or expenses whenever arising or incurred
(including, without limitation, amounts paid in settlement,
reasonable costs of investigation and reasonable attorneys' fees
and expenses) (hereinafter "Losses") arising out of or relating
to (i) any and all Taxes with respect to all taxable periods (or
portions thereof) of the Company ending on or prior to the
Closing Date and, to the extent provided in Section 3(a) hereof,
all taxable periods that include, and end after, the Closing Date
(other than, in each case, Taxes for which sufficient current
accruals have been made on the Closing Balance Sheet) and (ii)
any breach of any representation, warranty, covenant or agreement
made by (A) the Members in the Exchange Agreement, (B) the
Members in the Investment and Registration Rights Agreement among
SEACOR and the Stockholders referred to therein (which, as
defined therein, include the Members) of even date herewith (the
"Registration Rights Agreement") and (C) the Members in this
Agreement; provided, however, that, with respect to any breach of
-------- -------
any representation or warranty made by a Member pursuant to the
Registration Rights Agreement or this Agreement, no Member (other
than the Member who commits such breach) shall have liability for
such breach. It is understood that the Members shall have no
liability for indemnification under clause (ii) above in the
absence of a breach of any representation, warranty, covenant or
agreement referred to therein.
(b) Subject to the other provisions of this Agreement, from
and after the Closing, SEACOR shall indemnify and hold harmless
the Members and each of their employees, agents and
representatives, and each of the heirs, executors, successors and
assigns of any of the foregoing (individually, a "Member
Indemnified Party" and, collectively, the "Member Indemnified
Parties"), against any Losses arising out of or relating to any
breach of any representation, warranty, covenant or agreement
made by SEACOR in (i) the Exchange Agreement, (ii) the
Registration Rights Agreement or (iii) this Agreement.
<PAGE>
(c) For the purposes hereof, a SEACOR Indemnified Party or
a Member Indemnified Party seeking indemnification pursuant to
this Agreement is referred to as an "Indemnified Party", and the
party from whom such indemnification is sought is referred to as
the "Indemnifying Party."
(d) No Indemnified Party shall be entitled to make any
claim for indemnification pursuant to this Agreement after the
applicable Claims Period (as defined in Section 5 hereof).
(e) Except as otherwise provided in Section 3 hereof in
respect of matters relating to Taxes, the following provisions
shall apply:
(i) Promptly after receipt by an Indemnified
Party of notice of the commencement of any action or
proceeding involving a claim in respect of which
indemnification is being sought, such Indemnified Party
will, if a claim for indemnification hereunder is to be made
against the Indemnifying Party, give written notice to the
Indemnifying Party of the commencement of such action or
proceeding, the basis for such claim for indemnification and
such other information relating thereto as the Indemnifying
Party may reasonably request; provided, however, that
-------- -------
failure to so notify the Indemnifying Party or to provide
such information shall not relieve such Indemnifying Party
from any liability which it may have with respect to such
claim, except to the extent that it is actually materially
prejudiced by such failure to give notice.
(ii) In case any such action is brought against
an Indemnified Party, unless in such Indemnified Party's
reasonable judgment (A) a conflict of interest between the
Indemnified Party and the Indemnifying Party may exist in
respect of such claim, or (B) the Indemnified Party has
available to it reasonable defenses which are different from
or additional to those available to the Indemnifying Party,
the Indemnifying Party shall be entitled to assume and
control the defense of such action to the extent that it may
wish, with counsel reasonably satisfactory to such
Indemnified Party, and after notice from the Indemnifying
Party to such Indemnified Party of its election so to assume
and control the defense of such action, the Indemnifying
Party shall not be liable to such Indemnified Party for any
legal or other expenses subsequently incurred by the latter
in connection with the defense of such action other than
reasonable costs of investigation. If in such case the
Indemnifying Party elects not to do so, or if the
circumstances described in clause (A) or (B) above shall
apply, the Indemnified Party shall retain counsel reasonably
satisfactory to the Indemnifying Party, shall inform the
Indemnifying Party of the progress of the defense upon
<PAGE>
request and shall respond to the reasonable requests of the
Indemnifying Party for information with respect thereto. In
any case in which the Indemnifying Party elects to assume
the defense, any Indemnified Party shall have the right to
retain its own counsel, but the fees and disbursements of
such counsel shall be at the expense of such Indemnified
Party unless the Indemnifying Party and such Indemnified
Party shall have mutually agreed to the retention of such
counsel. It is understood that the Indemnifying Party shall
not, in connection with any action or related actions in the
same jurisdiction, be liable for the fees and disbursements
of more than one separate firm qualified in such
jurisdiction to act as counsel for all Indemnified Parties,
unless in any such Indemnified Party's reasonable judgment
(i) a conflict of interest between such Indemnified Party
and any other Indemnified Party may exist in respect of such
claim or (ii) such Indemnified Party has available to it
reasonable defenses which are different from or additional
to those available to other Indemnified Parties. The
Indemnifying Party shall not be liable for any settlement of
any proceeding effected without its written consent but if
settled with such consent or if there shall be a final
judgment for the plaintiff, the Indemnifying Party agrees to
indemnify the Indemnified Party from and against any Losses
by reason of such settlement or judgment (it being
understood that, as provided in Section 2(a), if the Members
are the Indemnifying Party such indemnification obligation
shall be several and not joint, in accordance with the
Members' proportionate interests as reflected on Exhibit A
hereto, except as otherwise provided in the proviso to such
Section 2(a)). Other than with respect to claims under
Section 2(a)(i) hereof, the Indemnifying Party shall not,
without the consent of the Indemnified Party, consent to
entry of any judgment or enter into any settlement which
does not include as an unconditional term the giving by the
claimant or plaintiff to such Indemnified Party of a release
from all liability in respect to such claim or litigation.
Any dispute as to whether any Indemnified Party is entitled
to indemnification in connection with any action or
proceeding under Section 2(e)(i) or this Section 2(e)(ii),
the defense or settlement of such action or proceeding, or
any other rights or obligations of the parties hereto in
connection with such action or proceeding shall be submitted
to arbitration in accordance with Section 7 of this
Agreement.
(iii) In the event that an Indemnified Party
shall claim a right to payment pursuant to this Agreement
with respect to which there has been no action or proceeding
involving such claim pursuant to Section 2(e)(i) hereof,
such Indemnified Party shall send written notice of such
claim to the Indemnifying Party. Such notice shall specify
<PAGE>
the basis for such claim in reasonable detail. As promptly
as possible after the Indemnified Party has given such
notice, such Indemnified Party and the Indemnifying Party
shall establish the merits and amount of Losses, if any, to
which the Indemnified Party is entitled. If the parties do
not agree with respect to these matters within 30 days after
the giving of such notice, either party may submit the
matter to arbitration in accordance with Section 7 of this
Agreement. In such arbitration, if the arbitrator
determines that a breach of a representation, warranty,
covenant or agreement in the Exchange Agreement, the
Registration Rights Agreement or this Agreement by the
Indemnifying Party occurred and that such breach caused
Losses to an Indemnified Party, the arbitrator will
determine the amount of any such Losses. Within ten
business days after the final determination of the merits of
such claim and amount of such Losses, the Indemnifying Party
shall, subject to the limitations set forth herein, deliver
to the Indemnified Party an amount of cash in immediately
available funds sufficient to satisfy such Losses or the
portion of such Losses for which such Indemnifying Party is
obligated to provide indemnity hereunder.
3. Covenants Regarding Tax Matters. (a) To the extent
-------------------------------
permitted by applicable law, the Representative, the Company and
SEACOR will elect or cause to be elected with the relevant taxing
authority to close the taxable period of the Company on the
Closing Date. In any case where applicable law does not permit
the Company to close its taxable year on the Closing Date, then
Taxes, if any, attributable to the taxable period of the Company
beginning before and ending after the Closing Date shall be
allocated (i) to the Members for the period up to and including
the Closing Date to the extent such Taxes exceed the reserve
therefor on the Closing Balance Sheet and (ii) to SEACOR for the
period up to and including the Closing Date to the extent such
Taxes do not exceed the reserve therefor on the Closing Date
Balance Sheet and for the period subsequent to the Closing Date.
For purposes of this Section 3(a), Taxes for the period up to and
including the Closing Date and for the period subsequent to the
Closing Date shall be determined on the basis of an interim
closing of the books as of the Closing Date or, to the extent not
susceptible to such allocation, by apportionment on the basis of
elapsed days.
(b) (i) The Representative shall be responsible for
causing to be filed all Returns required to be filed by or on
behalf of the Company on or before the Closing Date (taking into
account applicable extensions) and shall pay or cause to be paid
any Taxes shown to be due thereon. The Representative shall file
or cause to be filed all such Returns in a manner consistent with
past practices and, upon SEACOR's request, shall provide copies
of such Returns to SEACOR for SEACOR's review and comment at
<PAGE>
least fifteen (15) business days prior to filing. SEACOR shall
be responsible for filing or causing to be filed all Returns
required to be filed by or on behalf of the Company after the
Closing Date (taking into account applicable extensions) and
shall pay or cause to be paid any Taxes shown to be due thereon.
(ii) With respect to any Return of the Company
required to be filed by SEACOR for a taxable period of the
Company beginning before and ending on or after the Closing Date,
the Representative shall provide SEACOR with a statement, within
forty-five days after the Closing Date, setting forth the amount
of Tax that the Representative believes is allocable to the
Members pursuant to Section 3(a) hereof or for which the Members
are responsible pursuant to Section 2(a)(i) hereof (the
"Statement") and copies of such Tax Return. The Statement shall
provide (with reasonable specificity) the bases on which such
Taxes were allocable to the Members. SEACOR shall have the right
to review such Tax Return and the Statement prior to the filing
of such Tax Return. The Representative and SEACOR agree to
consult and resolve in good faith any issue arising as a result
of the review of such Tax Return and the Statement and to
mutually consent to the filing as promptly as possible of such
Tax Return. If the parties are unable to resolve any
disagreement within fifteen business days following SEACOR's
receipt of such Tax Return and Statement, the parties shall
jointly request such independent accounting firm as they shall
select to resolve any issue in dispute as promptly as possible
and shall cooperate with such accounting firm to resolve such
disagreement. If such independent accounting firm is unable to
make a determination with respect to any disputed issue prior to
the due date (including extensions) for the filing of the Tax
Return in question, then SEACOR may file such Tax Return on the
due date (including extensions) therefor without such
determination having been made. Notwithstanding the filing of
such Tax Return, such independent accounting firm shall make a
determination with respect to any disputed issue, and the amount
of Taxes that are allocated to the Members pursuant to Section
3(a) hereof for which the Members are responsible pursuant to
Section 2(a)(i) hereof shall be as determined by such independent
accounting firm. The fees and expenses of such independent
accounting firm shall be paid one-half by SEACOR and one-half by
the Members. Not later than five (5) business days before the
due date (including extensions) for the filing of such Tax Return
or, in the case of a dispute, not later than five (5) business
days after notice to the Representative of resolution thereof,
the Members shall pay to SEACOR an amount equal to the Taxes
shown on the Statement as being the responsibility of the Members
pursuant to Section 2(a)(i) hereof or allocable to the Members
pursuant to Section 3(a) hereof (as the case may be). No payment
pursuant to this Section 3(b)(ii) shall excuse the Members from
their indemnification obligations pursuant to Section 2(a)(i)
hereof should the amount of Taxes as ultimately determined (on
<PAGE>
audit or otherwise), for the periods covered by such Returns and
which are the responsibility of the Members, exceed the amount of
the Members payment under this Section 3(b)(ii).
(iii) The Members may not file any amended Returns or
refund claims in respect of any taxable period of the Company
ending on or prior to the Closing Date without the prior written
consent of SEACOR.
(c) The Members shall cooperate fully with SEACOR and
make available to SEACOR in a timely fashion such Tax data and
other information as may be reasonably required for the
preparation by SEACOR of any Returns required to be prepared and
filed by SEACOR hereunder. The Members and SEACOR shall make
available to the other, as reasonably requested, all information,
records or documents in their possession relating to Tax
liabilities of the Company for all taxable periods of the Company
ending on, prior to or including the Closing Date and shall
preserve all such information, records and documents until the
expiration of any applicable Tax statute of limitations or
extensions thereof or, if a proceeding has been instituted for
which the information, records or documents is required, until
there is a final determination with respect to such proceeding.
(d) (i) SEACOR shall promptly notify the
Representative upon receipt by SEACOR or the Company of written
notice of any Tax audits of or proposed assessments against the
Company for taxable periods of the Company ending on or prior to
the Closing Date; provided, however, that the failure of SEACOR
-------- -------
to give the Representative prompt notice as required herein shall
not relieve the Members of any of their obligations under Section
2 or 3 hereof, except to the extent that the Members are actually
and materially prejudiced thereby. SEACOR shall have the right
to represent the interests of the Company in any such Tax audit
or administrative or court proceeding and to employ counsel
reasonably acceptable to the Representative; provided, that
SEACOR may not agree to a settlement or compromise thereof
without the prior written consent of the Representative, which
consent may be withheld solely in the event that the
Representative has been advised by counsel reasonably acceptable
to SEACOR that it is more likely than not that the issue under
audit (or the proposed assessment) would be decided favorably to
the Company. The Members agree that they will cooperate fully
with SEACOR and its counsel in the defense against or compromise
of any claim in any said audit or proceeding.
(ii) The Members shall promptly notify SEACOR upon
receipt by the Members of written notice of any Tax audit or
proposed assessment or other proposed change or adjustment which
may affect the Company or their Tax attributes. The Members
shall keep SEACOR duly informed of the progress thereof and, if
the results of such Tax audit or proceeding may have an adverse
<PAGE>
effect on the Company, SEACOR or its affiliates for any taxable
period including or ending after the Closing Date, then the
Members may not agree to a settlement or compromise thereof
without SEACOR's consent, which written consent will not be
unreasonably withheld.
(e) The Members and SEACOR agree to treat any
indemnity payment made pursuant to this Agreement as an
adjustment to the Total Exchanged Shares for federal, state,
local and foreign income tax purposes. If, notwithstanding such
treatment by the parties, any indemnity payment is determined to
be taxable to SEACOR, the Company or its Affiliates by any taxing
authority, the Members shall indemnify SEACOR and its Affiliates
for any Taxes payable by reason of the receipt of such indemnity
payment (including any payments under this Section 3(e).
4. Liability Limits.
----------------
(a) Neither the Members, on the one hand, nor SEACOR
on the other, shall have any liability for Losses in respect of
claims for indemnification under Section 2 hereof until the
aggregate amount of such Losses exceeds the greater of $200,000
or 1% of the Total Exchanged Shares (the "Threshold"), in which
event the applicable Indemnifying Party or Parties shall, subject
to the other provisions of this Section 4, be liable for the
total amount of such Losses (including Losses below the
Threshold).
(b) The aggregate liability of any Member for Losses
pursuant to this Agreement shall not exceed the following:
(i) in the absence of fraud, with respect to any
claim for indemnity pursuant to (A) Section
2(a)(i) hereof, (B) Section 2(a)(ii)(A) hereof for
any breach of any representation or warranty made
by the Members in the first sentence of Section
4.11(a) of the Exchange Agreement, in the second
sentence of Section 4.13(a) of the Exchange
Agreement, in Section 4.13(d)(i) of the Exchange
Agreement or in Section 4.18 of the Exchange
Agreement or (C) pursuant to Section 2(a)(ii)(B)
or 2(a)(ii)(C) hereof, an amount equal to the
value of the total consideration paid to such
Member pursuant to the Transaction Agreements; and
(ii) with respect to any other claim for indemnity
hereunder, an amount equal to 30% of the value of
the total consideration paid to such Member
pursuant to the Transaction Agreements;
provided, however, that, in the absence of fraud, (1) in no event
-------- -------
shall the liability of any Member under the Indemnification
<PAGE>
Agreements exceed, in the aggregate, the value of the total
consideration paid to such Member pursuant to the Transaction
Agreements and (2) in no event shall the liability of any Member
under the Indemnification Agreements in respect of matters for
which liability, by the terms of such agreements, is limited to
an amount equal to 30% of the total consideration paid such
Member pursuant to the Transaction Agreements exceed, in the
aggregate, an amount equal to 30% of such total consideration.
(c) The aggregate liability of SEACOR for Losses
pursuant to this Agreement shall not exceed the following:
(i) with respect to any claim for indemnity
pursuant to (A) Section 2(b)(i) hereof for any
breach of any representation or warranty made by
SEACOR pursuant to Section 5.10 of the Exchange
Agreement, or (B) Section 2(b)(ii) or 2(b)(iii)
hereof, an amount equal to the Total Exchanged
Shares; and
(ii) with respect to any other claim for indemnity
hereunder, an amount equal to 30% of the Total
Exchanged Shares;
provided, however, that, in the absence of fraud, (1) in no event
-------- -------
shall the liability of SEACOR under the Indemnification
Agreements exceed, in the aggregate, the value of the total
consideration paid by SEACOR or its Affiliates pursuant to the
Transaction Agreements or (2) in no event shall the liability of
SEACOR under the Indemnification Agreements in respect of matters
for which liability, by the terms of such agreements, is limited
to an amount equal to 30% of the total consideration paid by
SEACOR or its Affiliates pursuant to the Transactions Agreements
exceed, in the aggregate, 30% of such total consideration.
5. Claim Periods. The term "Claims Period" shall mean the
-------------
following:
(a) With respect to any claim for indemnity under
Section 2(a)(i) hereof, 2(a)(ii)(A) hereof for any breach of any
representation or warranty made by the Members pursuant to
Section 4.18 of the Exchange Agreement or a breach of Section 3
hereof, sixty (60) days following the expiration of the
applicable Tax statute of limitations with respect to the
relevant taxable period (including extensions);
(b) With respect to any claim for indemnity (i)
pursuant to Section 2(a)(ii)(A) hereof for any breach of any
representation or warranty made by the Members pursuant to (i)
the first sentence of Section 4.11(a) of the Exchange Agreement,
the second sentence of Section 4.13(a) of the Exchange Agreement
or Section 4.13(d)(i) of the Exchange Agreement or (ii) pursuant
<PAGE>
to Section 2(a)(ii)(B) or 2(a)(ii)(C) hereof, the period of time
commencing as of the date hereof and continuing for an unlimited
period of time thereafter;
(c) with respect to any other claim for indemnity
against the Members hereunder, the period of time commencing on
the date hereof and expiring on the second anniversary of the
Closing Date;
(d) With respect to any claim for indemnity pursuant
to Section 2(b)(i) hereof for any breach of any representation or
warranty made by SEACOR pursuant to Section 5.10 of the Exchange
Agreement or pursuant to Section 2(b)(ii) or 2(b)(iii) hereof,
the period of time commencing as of the date hereof continuing
for an unlimited period of time hereafter; and
(e) With respect to any other claim for indemnity
against SEACOR hereunder, the period of time commencing as of the
date hereof and expiring on the second anniversary of the Closing
Date.
6. [Intentionally Omitted]
7. Jurisdiction and Forum; Arbitration. Any controversy
-----------------------------------
arising under, out of, in connection with, or relating to, this
Agreement, and any amendment hereof, or the breach hereof or
thereof, shall be determined and settled by arbitration in New
York, New York, by an arbitrator or arbitrators mutually agreed
upon by SEACOR and the Representative or, if SEACOR and the
Representative shall fail or be unable to so agree within ten
Business Days after the written request therefor by SEACOR or the
Representative to the other, such arbitrator or arbitrators as
may be selected in accordance with the rules of the American
Arbitration Association. Any award rendered therein shall
specify the findings of fact of the arbitrator or arbitrators and
the reasons for such award, with reference to and reliance on
relevant law. Any such award shall be final and binding on each
and all of the parties thereto and their personal representa-
tives, and judgment may be entered thereon in any court having
jurisdiction thereof.
8. Representations and Warranties of the Representative,
-----------------------------------------------------
the Members and SEACOR.
----------------------
(a) The Representative hereby represents and warrants
to each other party hereto that:
(i) this Agreement has been duly authorized,
executed and delivered by it and constitutes the legal,
valid and binding agreement of it, enforceable against it in
accordance with its terms, except as enforceability may be
limited by bankruptcy, insolvency, reorganization, or other
<PAGE>
laws affecting creditors' rights and remedies generally and
by general principles of equity (regardless of whether such
enforceability is considered in a proceeding in equity or at
law); and
(ii) the execution, delivery and performance of
this Agreement and the consummation of the transactions
contemplated by this Agreement will not violate or conflict
with, constitute a breach of or default under, result in the
loss of any material benefit under, or permit the accelera-
tion of or entitle any party to accelerate any obligation
under or pursuant to, any material mortgage, lien, lease,
agreement, instrument, order, arbitration award, judgment or
decree to which it is a party or by which it or any of its
assets are bound.
(b) Each Member hereby represents and warrants to each
other party hereto that:
(i) this Agreement has been duly authorized,
executed and delivered by such Member and constitutes the
legal, valid and binding agreement of such Member,
enforceable against such Member in accordance with its
terms, except as enforceability may be limited by bank-
ruptcy, insolvency, reorganization, or other laws affecting
creditors' rights and remedies generally and by general
principles of equity (regardless of whether such enforce-
ability is considered in a proceeding in equity or at law);
and
(ii) the execution, delivery and performance of
this Agreement and the consummation of the transactions
contemplated by this Agreement will not violate or conflict
with, constitute a breach of or default under, result in the
loss of any material benefit under, or permit the accelera-
tion of or entitle any party to accelerate any obligation
under or pursuant to, any material mortgage, lien, lease,
agreement, instrument, order, arbitration award, judgment or
decree to which such Member is a party or by which it or any
of its assets are bound.
(c) SEACOR hereby represents and warrants to each
other party hereto that:
(i) this Agreement has been duly authorized,
executed and delivered by it and constitutes the legal,
valid and binding agreement of it, enforceable against it in
accordance with its terms, except as enforceability may be
limited by bankruptcy, insolvency, reorganization, or other
laws affecting creditors' rights and remedies generally and
by general principles of equity (regardless of whether such
<PAGE>
enforceability is considered in a proceeding in equity or at
law); and
(ii) the execution, delivery and performance of
this Agreement and the consummation of the transactions
contemplated by this Agreement will not violate or conflict
with, constitute a breach of or default under, result in the
loss of any material benefit under, or permit the accelera-
tion of or entitle any party to accelerate any obligation
under or pursuant to, any material mortgage, lien, lease,
agreement, instrument, order, arbitration award, judgment or
decree to which it is a party or by which it or any of its
assets are bound.
9. Representative.
--------------
(a) Each of the Members hereby constitutes and
appoints the Representative to act as the Representative under
this Agreement and the Exchange Agreement as and to the extent
provided herein and therein. Each of the Members agrees to
indemnify and hold harmless the Representative by reason of its
acting or failing to act in connection with any of the
transactions contemplated hereby and against any loss, liability
or expense the Representative may sustain or incur as a result of
serving as Representative hereunder, except such losses,
liabilities and expenses which are determined in an arbitration
proceeding to have resulted primarily from the gross negligence
or willful misconduct of the Representative. Each of the Members
agrees that the Representative shall have no liability whatsoever
to any Indemnified Party, any Member or such Indemnified Party's
or Member's beneficiaries, heirs or personal representatives for
any matters arising out of this Agreement except, in the case of
the Members, for liability for such matters which are determined
in an arbitration proceeding to have resulted primarily from the
gross negligence or willful misconduct of the Representative.
Each of the Members hereby agrees to reimburse the Representative
upon the request of the Representative for all reasonable
expenses, disbursements and advances incurred or made by the
Representative in the performance of its duties under this
Agreement. The Representative shall have the authority to act on
behalf of and to bind the Members, in accordance with their
proportionate interests as set forth on Exhibit A, for purposes
of the provisions of this Agreement to the extent set forth in
this Agreement. In no event shall the Representative be liable
to any Indemnified Party for any Member's obligations under this
Agreement or the collection of any claim against any Member.
(b) The initial Representative hereunder shall be
Norman McCall. In the event that Norman McCall, for any reason,
shall fail or be unable to continue to serve as Representative,
whether by reason of his death, incapacity, resignation or
otherwise, Alan McCall shall serve as successor Representative,
<PAGE>
or in the event that Alan McCall, for any reason, shall fail or
be unable to serve as successor Representative, whether by reason
of his death, incapacity, resignation or otherwise, then the
successor Representative shall be elected by holders of a
majority of the interests reflected on Exhibit A hereto. The
rights, powers, privileges and obligations of the Representative
named hereunder shall be possessed by any successor
Representative with the same effect as though such successor had
originally been a party to this Agreement. The word
"Representative" as used in this Agreement means the
Representative or any representative acting hereunder.
10. Notices. All notices, communications and deliveries
-------
required or permitted by this Agreement shall be made in writing
signed by the party making the same, shall specify the Section of
this Agreement pursuant to which it is given or being made, and
shall be deemed given or made (i) on the date delivered if
delivered by telecopy or in person, (ii) on the third business
day after it is mailed if mailed by registered or certified mail
(return receipt requested) (with postage and other fees prepaid),
or (iii) on the day after it is delivered, prepaid, to an
overnight express delivery service that confirms to the sender
delivery on such day, as follows:
To SEACOR:
SEACOR Holdings, Inc.
1370 Avenue of the Americas
25th Floor
New York, New York 10019
Attn: Randall Blank
Telecopy No.: (212) 582-8522
with a copy to:
Weil, Gotshal & Manges LLP
767 Fifth Avenue
New York, New York 10153
Attn: David E. Zeltner, Esq.
Telecopy No.: (212) 310-8007
To Members and the Representative:
c/o McCall's Boat Rentals, Inc.
432 Marshall Street
Cameron, Louisiana 70631
Attn: Norman McCall
Telecopy No.: (318) 775-7025
<PAGE>
with a copy to:
Stockwell, Sievert, Viccellio,
Clements & Shaddock
P.O. Box 2900
Lake Charles, Louisiana 70602
Attn: William E. Shaddock, Esq.
Telecopy No.: (318) 493-7210
with an additional copy to:
Jones, Walker, Waechter, Poitevent,
Carrere & Denegre, L.L.P.
Place St. Charles
201 St. Charles Avenue
New Orleans, Louisiana 70170-5100
Attn: Carl C. Hanemann, Esq.
Telecopy No.: (504) 582-8398
or to such other representative or at such other address of a
party as such party hereto may furnish to the other Parties in
writing. If notice is given pursuant to this Section 10 of any
assignment to a permitted successor or assign of a party hereto,
the notice shall be given as set forth above to such successor or
assign of such party.
11. Time of the Essence; Computation of Time. Time is of
----------------------------------------
the essence for each and every provision of this Agreement.
Whenever the last day for the exercise of any privilege or the
discharge of any duty under this Agreement shall fall upon a
Saturday, Sunday or any date on which banks in New Orleans,
Louisiana or New York, New York are closed, the party having such
privilege or duty may exercise such privilege or discharge such
duty on the next succeeding day which is a regular business day.
12. Successors in Interest. This Agreement shall be
----------------------
binding upon and shall inure to the benefit of the Parties and
their permitted successors and assigns, and any reference to a
party shall also be a reference to a permitted successor or
assign.
13. Number; Gender. Whenever the context so requires, the
--------------
singular number shall include the plural and the plural shall
include the singular, and the gender of any pronoun shall include
the other genders.
14. Captions. The titles and captions contained in this
--------
Agreement are inserted in this Agreement only as a matter of
convenience and for reference and in no way define, limit, extend
or describe the scope of this Agreement or the intent of any
provision of this Agreement. Unless otherwise specified to the
contrary, all references to Sections are references to Sections
of this Agreement.
<PAGE>
15. Amendments. To the extent permitted by law, this
----------
Agreement may be amended by a subsequent writing signed by all of
the Parties (other than the Members) and Members having an
aggregate proportionate interest, as reflected on Exhibit A
hereto at least equal to 80%.
16. Controlling Law; Integration; Waiver. This Agreement
------------------------------------
shall be governed by and construed and enforced in accordance
with the laws of the State of New York, without giving effect to
the principles thereof relating to the conflict or choice of
laws. This Agreement supersedes all negotiations, agreements
and understandings among the parties with respect to the subject
matter of this Agreement and constitutes the entire agreement
among the parties to this Agreement with respect to such subject
matter. The failure of any party at any time or times to require
performance of any provisions of this Agreement shall in no
manner affect the right to enforce the same. No waiver by any
party of any conditions, or of the breach of any term, provision,
warranty, representation, agreement or covenant contained in this
Agreement, whether by conduct or otherwise, in any one or more
instances shall be deemed or construed as a further or continuing
waiver of any such condition or breach of any other term,
provision, warranty, representation, agreement or covenant
contained in this Agreement.
17. Exclusive Remedy. The Parties agree that, from and
----------------
after the Closing Date, the rights and remedies of any party
under this Agreement shall be the sole and exclusive remedy of
the parties for Losses arising out of any breach of this
Agreement, the Exchange Agreement, the Registration Rights
Agreement or any of the transactions contemplated herein or
therein.
18. Severability. Any provision of this Agreement which is
------------
prohibited or unenforceable in any jurisdiction will, as to such
jurisdiction, be ineffective to the extent of such prohibition or
unenforceability without invalidating the remaining provisions of
this Agreement, and any such prohibition or unenforceability in
any jurisdiction will not invalidate or render unenforceable such
provision in any other jurisdiction. To the extent permitted by
law, the Parties waive any provision of law which renders any
such provision prohibited or unenforceable in any respect.
<PAGE>
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be executed as of the date first above written.
SEACOR HOLDINGS, INC.
---------------------
By: /s/ Milton Rose
-----------------------------------
Name: Milton Rose
Title: Vice-President
MEMBER REPRESENTATIVE
---------------------
/s/ Norman McCall
----------------------------------------
Norman McCall
MEMBERS
-------
/s/ H. Alan McCall
----------------------------------------
H. Alan McCall
/s/ Phyllis McCall Johnston
----------------------------------------
Phyllis McCall Johnston
/s/ Joseph K. McCall
----------------------------------------
Joseph K. McCall
NYFS11...:\93\73293\0011\1711\AGR5306S.050
EXHIBIT 10.5
INDEMNIFICATION AGREEMENT
-------------------------
THIS INDEMNIFICATION AGREEMENT ("Agreement") is made and
entered into as of the 31st day of May, 1996, among all of the
stockholders of Cameron Boat Rentals, Inc., a Louisiana
corporation (the "Company"), listed on Exhibit A hereto
(collectively, the "Stockholders"), Norman McCall, acting as
representative of the Stockholders (in such capacity and his
successor(s) being referred to as the "Representative"), and
SEACOR Holdings, Inc., a Delaware corporation ("SEACOR").
RECITALS:
--------
A. SEACOR, McCall Enterprises, Inc. ("McCall") and the
Stockholders have entered into a Share Exchange Agreement and
Plan of Reorganization relating to the Company, dated as of May
31, 1996 (the "Exchange Agreement"), pursuant to which McCall
shall acquire the Company Shares owned by the Stockholders in
exchange for SEACOR Common Stock;
B. The execution and delivery of this Agreement by each
of the Stockholders constitute a condition precedent to SEACOR's
obligations under the Exchange Agreement; and
C. On the date hereof, pursuant to other acquisition
transactions contemplated by certain other agreements of even
date herewith (the "Other Agreements" and, together with the
Exchange Agreement, the "Transaction Agreements"), SEACOR also is
acquiring, directly or indirectly, all of the equity interests in
the other Companies (as defined in the Exchange Agreement) and,
in connection therewith, SEACOR and the stockholders of certain
of such other Companies will execute and deliver Indemnification
Agreements of even date herewith that are similar to this
Agreement (the "Other Indemnification Agreements" and, together
with this Agreement, the "Indemnification Agreements").
In consideration of the foregoing and of the
representations, warranties, covenants and agreements set forth
in this Agreement, the parties hereto, intending to be legally
bound, agree as follows:
1. Definitions. Capitalized terms used but not otherwise
-----------
defined in this Agreement shall have the meanings ascribed to
such terms in the Exchange Agreement.
<PAGE>
2. Indemnification.
---------------
(a) Subject to the other provisions of this Agreement,
from and after the Closing, the Stockholders shall indemnify and
hold harmless, severally and not jointly, in accordance with
their respective proportionate interests as reflected on Exhibit
A hereto (except as provided in the proviso to this Section 2(a))
SEACOR and its Affiliates, each of their respective officers,
directors, employees, agents and representatives, and each of the
heirs, executors, successors and assigns of any of the foregoing
(individually, a "SEACOR Indemnified Party" and, collectively,
the "SEACOR Indemnified Parties"), against any losses, claims,
damages, liabilities or expenses whenever arising or incurred
(including, without limitation, amounts paid in settlement,
reasonable costs of investigation and reasonable attorneys' fees
and expenses) (hereinafter "Losses") arising out of or relating
to (i) any and all Taxes with respect to all taxable periods (or
portions thereof) of each member of the Cameron Group ending on
or prior to the Closing Date and, to the extent provided in
Section 3(a) hereof, all taxable periods that include, and end
after, the Closing Date (other than, in each case, Taxes for
which sufficient current accruals have been made on the Closing
Balance Sheet) and (ii) any breach of any representation,
warranty, covenant or agreement made by (A) the Stockholders in
the Exchange Agreement, (B) the Stockholders in the Investment
and Registration Rights Agreement among SEACOR and the
Stockholders of even date herewith (the "Registration Rights
Agreement") and (C) the Stockholders in this Agreement; provided,
--------
however, that, with respect to any breach of any representation
-------
or warranty made by a Stockholder pursuant to the Registration
Rights Agreement or this Agreement, no Stockholder (other than
the Stockholder who commits such breach) shall have liability for
such breach. It is understood that the Stockholders shall have
no liability for indemnification under clause (ii) above in the
absence of a breach of any representation, warranty, covenant or
agreement referred to therein.
(b) Subject to the other provisions of this Agreement, from
and after the Closing, SEACOR shall indemnify and hold harmless
the Stockholders and each of their employees, agents and
representatives, and each of the heirs, executors, successors and
assigns of any of the foregoing (individually, a "Company
Indemnified Party" and, collectively, the "Company Indemnified
Parties"), against any Losses arising out of or relating to any
breach of any representation, warranty, covenant or agreement
made by SEACOR in (i) the Exchange Agreement, (ii) the
Registration Rights Agreement or (iii) this Agreement.
(c) For the purposes hereof, a SEACOR Indemnified Party or
a Company Indemnified Party seeking indemnification pursuant to
this Agreement is referred to as an "Indemnified Party", and the
<PAGE>
party from whom such indemnification is sought is referred to as
the "Indemnifying Party."
(d) No Indemnified Party shall be entitled to make any
claim for indemnification pursuant to this Agreement after the
applicable Claims Period (as defined in Section 5 hereof).
(e) Except as otherwise provided in Section 3 hereof in
respect of matters relating to Taxes, the following provisions
shall apply:
(i) Promptly after receipt by an Indemnified
Party of notice of the commencement of any action or
proceeding involving a claim in respect of which
indemnification is being sought, such Indemnified Party
will, if a claim for indemnification hereunder is to be made
against the Indemnifying Party, give written notice to the
Indemnifying Party of the commencement of such action or
proceeding, the basis for such claim for indemnification and
such other information relating thereto as the Indemnifying
Party may reasonably request; provided, however, that
-------- -------
failure to so notify the Indemnifying Party or to provide
such information shall not relieve such Indemnifying Party
from any liability which it may have with respect to such
claim, except to the extent that it is actually materially
prejudiced by such failure to give notice.
(ii) In case any such action is brought against
an Indemnified Party, unless in such Indemnified Party's
reasonable judgment (A) a conflict of interest between the
Indemnified Party and the Indemnifying Party may exist in
respect of such claim, or (B) the Indemnified Party has
available to it reasonable defenses which are different from
or additional to those available to the Indemnifying Party,
the Indemnifying Party shall be entitled to assume and
control the defense of such action to the extent that it may
wish, with counsel reasonably satisfactory to such
Indemnified Party, and after notice from the Indemnifying
Party to such Indemnified Party of its election so to assume
and control the defense of such action, the Indemnifying
Party shall not be liable to such Indemnified Party for any
legal or other expenses subsequently incurred by the latter
in connection with the defense of such action other than
reasonable costs of investigation. If in such case the
Indemnifying Party elects not to do so, or if the
circumstances described in clause (A) or (B) above shall
apply, the Indemnified Party shall retain counsel reasonably
satisfactory to the Indemnifying Party, shall inform the
Indemnifying Party of the progress of the defense upon
request and shall respond to the reasonable requests of the
Indemnifying Party for information with respect thereto. In
any case in which the Indemnifying Party elects to assume
<PAGE>
the defense, any Indemnified Party shall have the right to
retain its own counsel, but the fees and disbursements of
such counsel shall be at the expense of such Indemnified
Party unless the Indemnifying Party and such Indemnified
Party shall have mutually agreed to the retention of such
counsel. It is understood that the Indemnifying Party shall
not, in connection with any action or related actions in the
same jurisdiction, be liable for the fees and disbursements
of more than one separate firm qualified in such
jurisdiction to act as counsel for all Indemnified Parties,
unless in any such Indemnified Party's reasonable judgment
(i) a conflict of interest between such Indemnified Party
and any other Indemnified Party may exist in respect of such
claim or (ii) such Indemnified Party has available to it
reasonable defenses which are different from or additional
to those available to other Indemnified Parties. The
Indemnifying Party shall not be liable for any settlement of
any proceeding effected without its written consent but if
settled with such consent or if there shall be a final
judgment for the plaintiff, the Indemnifying Party agrees to
indemnify the Indemnified Party from and against any Losses
by reason of such settlement or judgment (it being
understood that, as provided in Section 2(a), if the
Stockholders are the Indemnifying Party such indemnification
obligation shall be several and not joint, in accordance
with the Stockholders' proportionate interests as reflected
on Exhibit A hereto, except as otherwise provided in the
proviso to such Section 2(a)). Other than with respect to
claims under Section 2(a)(i) hereof, the Indemnifying Party
shall not, without the consent of the Indemnified Party,
consent to entry of any judgment or enter into any
settlement which does not include as an unconditional term
the giving by the claimant or plaintiff to such Indemnified
Party of a release from all liability in respect to such
claim or litigation. Any dispute as to whether any
Indemnified Party is entitled to indemnification in
connection with any action or proceeding under Section
2(e)(i) or this Section 2(e)(ii), the defense or settlement
of such action or proceeding, or any other rights or
obligations of the parties hereto in connection with such
action or proceeding shall be submitted to arbitration in
accordance with Section 7 of this Agreement.
(iii) In the event that an Indemnified Party
shall claim a right to payment pursuant to this Agreement
with respect to which there has been no action or proceeding
involving such claim pursuant to Section 2(e)(i) hereof,
such Indemnified Party shall send written notice of such
claim to the Indemnifying Party. Such notice shall specify
the basis for such claim in reasonable detail. As promptly
as possible after the Indemnified Party has given such
notice, such Indemnified Party and the Indemnifying Party
<PAGE>
shall establish the merits and amount of Losses, if any, to
which the Indemnified Party is entitled. If the parties do
not agree with respect to these matters within 30 days after
the giving of such notice, either party may submit the
matter to arbitration in accordance with Section 7 of this
Agreement. In such arbitration, if the arbitrator
determines that a breach of a representation, warranty,
covenant or agreement in the Exchange Agreement, the
Registration Rights Agreement or this Agreement by the
Indemnifying Party occurred and that such breach caused
Losses to an Indemnified Party, the arbitrator will
determine the amount of any such Losses. Within ten
business days after the final determination of the merits of
such claim and amount of such Losses, the Indemnifying Party
shall, subject to the limitations set forth herein, deliver
to the Indemnified Party an amount of cash in immediately
available funds sufficient to satisfy such Losses or the
portion of such Losses for which such Indemnifying Party is
obligated to provide indemnity hereunder.
(iv) If a Stockholder fails to timely deliver
cash in the amount of any Losses payable by such Stockholder
under the terms of this Agreement, the SEACOR Indemnified
Party to whom such amount is payable shall have the right to
such number of Escrow Shares (as defined in Section 6
hereof) as shall have a value equal to such amount. For
purposes hereof, Escrow Shares shall be deemed to have the
same value per share as the Average Market Price; provided,
--------
however, in the event that the Current Market Price (as
-------
hereinafter defined) as of the date of payment is less than
the Average Market Price, Escrow Shares shall be deemed to
have the same value per share as the Current Market Price.
For purposes hereof, "Current Market Price" shall mean the
average of the daily closing sale prices per share of SEACOR
Common Stock on the NASDAQ Stock Market (or, if the NASDAQ
Stock Market ceases to be the principal national securities
exchange on which such stock is traded, on the principal
national securities exchange on which such stock is traded)
for the ten consecutive trading days that end on the trading
day prior to the date of payment.
3. Covenants Regarding Tax Matters. (a) To the extent
-------------------------------
permitted by applicable law, the Representative, the Company and
SEACOR will elect or cause to be elected with the relevant taxing
authority to close the taxable period of each member of the
Cameron Group on the Closing Date. In any case where applicable
law does not permit each member of the Cameron Group to close its
taxable year on the Closing Date, then Taxes, if any,
attributable to the taxable period of each member of the Cameron
Group beginning before and ending after the Closing Date shall be
allocated (i) to the Stockholders for the period up to and
including the Closing Date to the extent such Taxes exceed the
<PAGE>
reserve therefor on the Closing Balance Sheet and (ii) to SEACOR
for the period up to and including the Closing Date to the extent
such Taxes do not exceed the reserve therefor on the Closing Date
Balance Sheet and for the period subsequent to the Closing Date.
For purposes of this Section 3(a), Taxes for the period up to and
including the Closing Date and for the period subsequent to the
Closing Date shall be determined on the basis of an interim
closing of the books as of the Closing Date or, to the extent not
susceptible to such allocation, by apportionment on the basis of
elapsed days.
(b) (i) The Representative shall be responsible for
causing to be filed all Returns required to be filed by or on
behalf of each member of the Cameron Group on or before the
Closing Date (taking into account applicable extensions) and
shall pay or cause to be paid any Taxes shown to be due thereon.
The Representative shall file or cause to be filed all such
Returns in a manner consistent with past practices and, upon
SEACOR's request, shall provide copies of such Returns to SEACOR
for SEACOR's review and comment at least fifteen (15) business
days prior to filing. SEACOR shall be responsible for filing or
causing to be filed all Returns required to be filed by or on
behalf of each member of the Cameron Group after the Closing Date
(taking into account applicable extensions) and shall pay or
cause to be paid any Taxes shown to be due thereon.
(ii) With respect to any Return of any member of
the Cameron Group required to be filed by SEACOR for a taxable
period of such member of the Cameron Group beginning before and
ending on or after the Closing Date, the Representative shall
provide SEACOR with a statement, within forty-five days after the
Closing Date, setting forth the amount of Tax that the
Representative believes is allocable to the Stockholders pursuant
to Section 3(a) hereof or for which the Stockholders are
responsible pursuant to Section 2(a)(i) hereof (the "Statement")
and copies of such Tax Return. The Statement shall provide (with
reasonable specificity) the bases on which such Taxes were
allocable to the Stockholders. SEACOR shall have the right to
review such Tax Return and the Statement prior to the filing of
such Tax Return. The Representative and SEACOR agree to consult
and resolve in good faith any issue arising as a result of the
review of such Tax Return and the Statement and to mutually
consent to the filing as promptly as possible of such Tax Return.
If the parties are unable to resolve any disagreement within
fifteen business days following SEACOR's receipt of such Tax
Return and Statement, the parties shall jointly request such
independent accounting firm as they shall select to resolve any
issue in dispute as promptly as possible and shall cooperate with
such accounting firm to resolve such disagreement. If such
independent accounting firm is unable to make a determination
with respect to any disputed issue prior to the due date
(including extensions) for the filing of the Tax Return in
<PAGE>
question, then SEACOR may file such Tax Return on the due date
(including extensions) therefor without such determination having
been made. Notwithstanding the filing of such Tax Return, such
independent accounting firm shall make a determination with
respect to any disputed issue, and the amount of Taxes that are
allocated to the Stockholders pursuant to Section 3(a) hereof for
which the Stockholders are responsible pursuant to Section
2(a)(i) hereof shall be as determined by such independent
accounting firm. The fees and expenses of such independent
accounting firm shall be paid one-half by SEACOR and one-half by
the Stockholders. Not later than five (5) business days before
the due date (including extensions) for the filing of such Tax
Return or, in the case of a dispute, not later than five (5)
business days after notice to the Representative of resolution
thereof, the Stockholders shall pay to SEACOR an amount equal to
the Taxes shown on the Statement as being the responsibility of
the Stockholders pursuant to Section 2(a)(i) hereof or allocable
to the Stockholders pursuant to Section 3(a) hereof (as the case
may be). No payment pursuant to this Section 3(b)(ii) shall
excuse the Stockholders from their indemnification obligations
pursuant to Section 2(a)(i) hereof should the amount of Taxes as
ultimately determined (on audit or otherwise), for the periods
covered by such Returns and which are the responsibility of the
Stockholders, exceed the amount of the Stockholders payment under
this Section 3(b)(ii).
(iii) The Stockholders may not file any amended
Returns or refund claims in respect of any taxable period of any
member of the Cameron Group ending on or prior to the Closing
Date without the prior written consent of SEACOR.
(c) The Stockholders shall cooperate fully with SEACOR
and make available to SEACOR in a timely fashion such Tax data
and other information as may be reasonably required for the
preparation by SEACOR of any Returns required to be prepared and
filed by SEACOR hereunder. The Stockholders and SEACOR shall
make available to the other, as reasonably requested, all
information, records or documents in their possession relating to
Tax liabilities of each member of the Cameron Group for all
taxable periods of each such member of the Cameron Group ending
on, prior to or including the Closing Date and shall preserve all
such information, records and documents until the expiration of
any applicable Tax statute of limitations or extensions thereof
or, if a proceeding has been instituted for which the
information, records or documents is required, until there is a
final determination with respect to such proceeding.
(d) (i) SEACOR shall promptly notify the
Representative upon receipt by SEACOR or the Company of written
notice of any Tax audits of or proposed assessments against any
member of the Cameron Group for taxable periods of any member of
the Cameron Group ending on or prior to the Closing Date;
<PAGE>
provided, however, that the failure of SEACOR to give the
-------- -------
Representative prompt notice as required herein shall not relieve
the Stockholders of any of their obligations under Section 2 or 3
hereof, except to the extent that the Stockholders are actually
and materially prejudiced thereby. SEACOR shall have the right
to represent the interests of any member of the Cameron Group in
any such Tax audit or administrative or court proceeding and to
employ counsel reasonably acceptable to the Representative;
provided, that SEACOR may not agree to a settlement or compromise
thereof without the prior written consent of the Representative,
which consent may be withheld solely in the event that the
Representative has been advised by counsel reasonably acceptable
to SEACOR that it is more likely than not that the issue under
audit (or the proposed assessment) would be decided favorably to
the member of the Cameron Group. The Stockholders agree that
they will cooperate fully with SEACOR and its counsel in the
defense against or compromise of any claim in any said audit or
proceeding.
(ii) The Stockholders shall promptly notify SEACOR
upon receipt by the Stockholders of written notice of any Tax
audit or proposed assessment or other proposed change or
adjustment which may affect any member of the Cameron Group or
their Tax attributes. The Stockholders shall keep SEACOR duly
informed of the progress thereof and, if the results of such Tax
audit or proceeding may have an adverse effect on any member of
the Cameron Group, SEACOR or its affiliates for any taxable
period including or ending after the Closing Date, then the
Stockholders may not agree to a settlement or compromise thereof
without SEACOR's consent, which written consent will not be
unreasonably withheld.
(e) The Stockholders and SEACOR agree to treat any
indemnity payment made pursuant to this Agreement as an
adjustment to the Total Exchanged Shares for federal, state,
local and foreign income tax purposes. If, notwithstanding such
treatment by the parties, any indemnity payment is determined to
be taxable to SEACOR, the Company or its Affiliates by any taxing
authority, the Stockholders shall indemnify SEACOR and its
Affiliates for any Taxes payable by reason of the receipt of such
indemnity payment (including any payments under this Section
3(e).
4. Liability Limits.
----------------
(a) Neither the Stockholders, on the one hand, nor
SEACOR on the other, shall have any liability for Losses in
respect of claims for indemnification under Section 2 hereof
until the aggregate amount of such Losses exceeds the greater
of $200,000 or 1% of the Total Exchanged Shares (the
"Threshold"), in which event the applicable Indemnifying Party or
Parties shall, subject to the other provisions of this Section 4,
<PAGE>
be liable for the total amount of such Losses (including Losses
below the Threshold).
(b) The aggregate liability of any Stockholder for
Losses pursuant to this Agreement shall not exceed the following:
(i) in the absence of fraud, with respect to any
claim for indemnity pursuant to (A) Section
2(a)(i) hereof, (B) Section 2(a)(ii)(A) hereof for
any breach of any representation or warranty made
by the Stockholders in the first sentence of
Section 4.11(a) of the Exchange Agreement, in the
second sentence of Section 4.13(a) of the Exchange
Agreement, in Section 4.13(d)(i) of the Exchange
Agreement or in Section 4.18 of the Exchange
Agreement or (C) pursuant to Section 2(a)(ii)(B)
or 2(a)(ii)(C) hereof, an amount equal to the
value of the total consideration paid to such
Stockholder pursuant to the Transaction
Agreements; and
(ii) with respect to any other claim for indemnity
hereunder, an amount equal to 30% of the value of
the total consideration paid to such Stockholder
pursuant to the Transaction Agreements;
provided, however, that, in the absence of fraud, (1) in no event
-------- -------
shall the liability of any Stockholder under the Indemnification
Agreements exceed, in the aggregate, the value of the total
consideration paid to such Stockholder pursuant to the
Transaction Agreements and (2) in no event shall the liability of
any Stockholder under the Indemnification Agreements in respect
of matters for which liability, by the terms of such agreements,
is limited to an amount equal to 30% of the total consideration
paid such Stockholder pursuant to the Transaction Agreements
exceed, in the aggregate, an amount equal to 30% of such total
consideration.
(c) The aggregate liability of SEACOR for Losses
pursuant to this Agreement shall not exceed the following:
(i) with respect to any claim for indemnity
pursuant to (A) Section 2(b)(i) hereof for any
breach of any representation or warranty made by
SEACOR pursuant to Section 5.10 of the Exchange
Agreement, or (B) Section 2(b)(ii) or 2(b)(iii)
hereof, an amount equal to the Total Exchanged
Shares; and
(ii) with respect to any other claim for indemnity
hereunder, an amount equal to 30% of the Total
Exchanged Shares;
<PAGE>
provided, however, that, in the absence of fraud, (1) in no event
-------- -------
shall the liability of SEACOR under the Indemnification
Agreements exceed, in the aggregate, the value of the total
consideration paid by SEACOR or its Affiliates pursuant to the
Transaction Agreements or (2) in no event shall the liability of
SEACOR under the Indemnification Agreements in respect of matters
for which liability, by the terms of such agreements, is limited
to an amount equal to 30% of the total consideration paid by
SEACOR or its Affiliates pursuant to the Transactions Agreements
exceed, in the aggregate, 30% of such total consideration.
5. Claim Periods. The term "Claims Period" shall mean the
-------------
following:
(a) With respect to any claim for indemnity under
Section 2(a)(i) hereof, 2(a)(ii)(A) hereof for any breach of any
representation or warranty made by the Stockholders pursuant to
Section 4.18 of the Exchange Agreement or a breach of Section 3
hereof, sixty (60) days following the expiration of the
applicable Tax statute of limitations with respect to the
relevant taxable period (including extensions);
(b) With respect to any claim for indemnity (i)
pursuant to Section 2(a)(ii)(A) hereof for any breach of any
representation or warranty made by the Stockholders pursuant to
(i) the first sentence of Section 4.11(a) of the Exchange
Agreement, the second sentence of Section 4.13(a) of the Exchange
Agreement or Section 4.13(d)(i) of the Exchange Agreement or (ii)
pursuant to Section 2(a)(ii)(B) or 2(a)(ii)(C) hereof, the period
of time commencing as of the date hereof and continuing for an
unlimited period of time thereafter;
(c) with respect to any other claim for indemnity
against the Stockholders hereunder, the period of time commencing
on the date hereof and expiring on the second anniversary of the
Closing Date;
(d) With respect to any claim for indemnity pursuant
to Section 2(b)(i) hereof for any breach of any representation or
warranty made by SEACOR pursuant to Section 5.10 of the Exchange
Agreement or pursuant to Section 2(b)(ii) or 2(b)(iii) hereof,
the period of time commencing as of the date hereof continuing
for an unlimited period of time hereafter; and
(e) With respect to any other claim for indemnity
against SEACOR hereunder, the period of time commencing as of the
date hereof and expiring on the second anniversary of the Closing
Date.
6. Escrow of Shares. The Stockholders hereby agree that a
----------------
number of shares of SEACOR Common Stock equal to ten percent
(10%) of the number of shares of SEACOR Common Stock to be
<PAGE>
delivered to the Stockholders as Exchanged Shares (the "Escrow
Shares") shall be delivered by the Exchange Agent to Bank of
Montreal Trust Company, as escrow agent (the "Escrow Agent"),
pursuant to the terms of an Escrow Agreement (the "Escrow
Agreement") in the form attached hereto as Exhibit B. The Escrow
Shares shall secure the obligations of the Stockholders to SEACOR
pursuant to Section 2(a) of this Agreement in accordance with the
terms of the Escrow Agreement. Each Stockholder shall be
entitled to direct the Escrow Agent to deliver all or any portion
of the Escrow Shares owned by such Stockholder to any Indemnified
Party as provided in Sections 2(e)(ii) and 2(e)(iii) hereof.
7. Jurisdiction and Forum; Arbitration. Any controversy
-----------------------------------
arising under, out of, in connection with, or relating to, this
Agreement, and any amendment hereof, or the breach hereof or
thereof, shall be determined and settled by arbitration in New
York, New York, by an arbitrator or arbitrators mutually agreed
upon by SEACOR and the Representative or, if SEACOR and the
Representative shall fail or be unable to so agree within ten
Business Days after the written request therefor by SEACOR or the
Representative to the other, such arbitrator or arbitrators as
may be selected in accordance with the rules of the American
Arbitration Association. Any award rendered therein shall
specify the findings of fact of the arbitrator or arbitrators and
the reasons for such award, with reference to and reliance on
relevant law. Any such award shall be final and binding on each
and all of the parties thereto and their personal representa-
tives, and judgment may be entered thereon in any court having
jurisdiction thereof.
8. Representations and Warranties of the Representative,
-----------------------------------------------------
the Stockholders and SEACOR.
---------------------------
(a) The Representative hereby represents and warrants
to each other party hereto that:
(i) this Agreement has been duly authorized,
executed and delivered by it and constitutes the legal,
valid and binding agreement of it, enforceable against it in
accordance with its terms, except as enforceability may be
limited by bankruptcy, insolvency, reorganization, or other
laws affecting creditors' rights and remedies generally and
by general principles of equity (regardless of whether such
enforceability is considered in a proceeding in equity or at
law); and
(ii) the execution, delivery and performance of
this Agreement and the consummation of the transactions
contemplated by this Agreement will not violate or conflict
with, constitute a breach of or default under, result in the
loss of any material benefit under, or permit the accelera-
tion of or entitle any party to accelerate any obligation
<PAGE>
under or pursuant to, any material mortgage, lien, lease,
agreement, instrument, order, arbitration award, judgment or
decree to which it is a party or by which it or any of its
assets are bound.
(b) Each Stockholder hereby represents and warrants to
each other party hereto that:
(i) this Agreement has been duly authorized,
executed and delivered by such Stockholder and constitutes
the legal, valid and binding agreement of such Stockholder,
enforceable against such Stockholder in accordance with its
terms, except as enforceability may be limited by bank-
ruptcy, insolvency, reorganization, or other laws affecting
creditors' rights and remedies generally and by general
principles of equity (regardless of whether such enforce-
ability is considered in a proceeding in equity or at law);
and
(ii) the execution, delivery and performance of
this Agreement and the consummation of the transactions
contemplated by this Agreement will not violate or conflict
with, constitute a breach of or default under, result in the
loss of any material benefit under, or permit the accelera-
tion of or entitle any party to accelerate any obligation
under or pursuant to, any material mortgage, lien, lease,
agreement, instrument, order, arbitration award, judgment or
decree to which such Stockholder is a party or by which it
or any of its assets are bound.
(c) SEACOR hereby represents and warrants to each
other party hereto that:
(i) this Agreement has been duly authorized,
executed and delivered by it and constitutes the legal,
valid and binding agreement of it, enforceable against it in
accordance with its terms, except as enforceability may be
limited by bankruptcy, insolvency, reorganization, or other
laws affecting creditors' rights and remedies generally and
by general principles of equity (regardless of whether such
enforceability is considered in a proceeding in equity or at
law); and
(ii) the execution, delivery and performance of
this Agreement and the consummation of the transactions
contemplated by this Agreement will not violate or conflict
with, constitute a breach of or default under, result in the
loss of any material benefit under, or permit the accelera-
tion of or entitle any party to accelerate any obligation
under or pursuant to, any material mortgage, lien, lease,
agreement, instrument, order, arbitration award, judgment or
<PAGE>
decree to which it is a party or by which it or any of its
assets are bound.
9. Representative.
--------------
(a) Each of the Stockholders hereby constitutes and
appoints the Representative to act as the Representative under
this Agreement, the Exchange Agreement and the Escrow Agreement
as and to the extent provided herein and therein. Each of the
Stockholders agrees to indemnify and hold harmless the
Representative by reason of its acting or failing to act in
connection with any of the transactions contemplated hereby or by
the Escrow Agreement and against any loss, liability or expense
the Representative may sustain or incur as a result of serving as
Representative hereunder or under the Escrow Agreement, except
such losses, liabilities and expenses which are determined in an
arbitration proceeding to have resulted primarily from the gross
negligence or willful misconduct of the Representative. Each of
the Stockholders agrees that the Representative shall have no
liability whatsoever to any Indemnified Party, any Stockholder or
such Indemnified Party's or Stockholder's beneficiaries, heirs or
personal representatives for any matters arising out of this
Agreement or the Escrow Agreement except, in the case of the
Stockholders, for liability for such matters which are determined
in an arbitration proceeding to have resulted primarily from the
gross negligence or willful misconduct of the Representative.
Each of the Stockholders hereby agrees to reimburse the
Representative upon the request of the Representative for all
reasonable expenses, disbursements and advances incurred or made
by the Representative in the performance of its duties under this
Agreement or under the Escrow Agreement. The Representative
shall have the authority to act on behalf of and to bind the
Stockholders, in accordance with their proportionate interests as
set forth on Exhibit A, for purposes of the provisions of this
Agreement and the Escrow Agreement to the extent set forth in
this Agreement and the Escrow Agreement, respectively. In no
event shall the Representative be liable to any Indemnified Party
for any Stockholder's obligations under this Agreement or the
collection of any claim against any Stockholder.
(b) The initial Representative hereunder shall be
Norman McCall. In the event that Norman McCall, for any reason,
shall fail or be unable to continue to serve as Representative,
whether by reason of his death, incapacity, resignation or
otherwise, Alan McCall shall serve as successor Representative,
or in the event that Alan McCall, for any reason, shall fail or
be unable to serve as successor Representative, whether by reason
of his death, incapacity, resignation or otherwise, then the
successor Representative shall be elected by holders of a
majority of the interests reflected on Exhibit A hereto. The
rights, powers, privileges and obligations of the Representative
named hereunder shall be possessed by any successor
<PAGE>
Representative with the same effect as though such successor had
originally been a party to this Agreement. The word
"Representative" as used in this Agreement means the
Representative or any representative acting hereunder.
10. Notices. All notices, communications and deliveries
-------
required or permitted by this Agreement shall be made in writing
signed by the party making the same, shall specify the Section of
this Agreement pursuant to which it is given or being made, and
shall be deemed given or made (i) on the date delivered if
delivered by telecopy or in person, (ii) on the third business
day after it is mailed if mailed by registered or certified mail
(return receipt requested) (with postage and other fees prepaid),
or (iii) on the day after it is delivered, prepaid, to an
overnight express delivery service that confirms to the sender
delivery on such day, as follows:
To SEACOR:
SEACOR Holdings, Inc.
1370 Avenue of the Americas
25th Floor
New York, New York 10019
Attn: Randall Blank
Telecopy No.: (212) 582-8522
with a copy to:
Weil, Gotshal & Manges LLP
767 Fifth Avenue
New York, New York 10153
Attn: David E. Zeltner, Esq.
Telecopy No.: (212) 310-8007
To Stockholders and the Representative:
c/o McCall's Boat Rentals, Inc.
432 Marshall Street
Cameron, Louisiana 70631
Attn: Norman McCall
Telecopy No.: (318) 775-7025
with a copy to:
Stockwell, Sievert, Viccellio,
Clements & Shaddock
P.O. Box 2900
Lake Charles, Louisiana 70602
Attn: William E. Shaddock, Esq.
Telecopy No.: (318) 493-7210
<PAGE>
with an additional copy to:
Jones, Walker, Waechter, Poitevent,
Carrere & Denegre, L.L.P.
Place St. Charles
201 St. Charles Avenue
New Orleans, Louisiana 70170-5100
Attn: Carl C. Hanemann, Esq.
Telecopy No.: (504) 582-8398
or to such other representative or at such other address of a
party as such party hereto may furnish to the other Parties in
writing. If notice is given pursuant to this Section 10 of any
assignment to a permitted successor or assign of a party hereto,
the notice shall be given as set forth above to such successor or
assign of such party.
11. Time of the Essence; Computation of Time. Time is of
----------------------------------------
the essence for each and every provision of this Agreement.
Whenever the last day for the exercise of any privilege or the
discharge of any duty under this Agreement shall fall upon a
Saturday, Sunday or any date on which banks in New Orleans,
Louisiana or New York, New York are closed, the party having such
privilege or duty may exercise such privilege or discharge such
duty on the next succeeding day which is a regular business day.
12. Successors in Interest. This Agreement shall be
----------------------
binding upon and shall inure to the benefit of the Parties and
their permitted successors and assigns, and any reference to a
party shall also be a reference to a permitted successor or
assign.
13. Number; Gender. Whenever the context so requires, the
--------------
singular number shall include the plural and the plural shall
include the singular, and the gender of any pronoun shall include
the other genders.
14. Captions. The titles and captions contained in this
--------
Agreement are inserted in this Agreement only as a matter of
convenience and for reference and in no way define, limit, extend
or describe the scope of this Agreement or the intent of any
provision of this Agreement. Unless otherwise specified to the
contrary, all references to Sections are references to Sections
of this Agreement.
15. Amendments. To the extent permitted by law, this
----------
Agreement may be amended by a subsequent writing signed by all of
the Parties (other than the Stockholders) and Stockholders having
an aggregate proportionate interest, as reflected on Exhibit A
hereto at least equal to 80%.
<PAGE>
16. Controlling Law; Integration; Waiver. This Agreement
------------------------------------
shall be governed by and construed and enforced in accordance
with the laws of the State of New York, without giving effect to
the principles thereof relating to the conflict or choice of
laws. This Agreement supersedes all negotiations, agreements
and understandings among the parties with respect to the subject
matter of this Agreement and constitutes the entire agreement
among the parties to this Agreement with respect to such subject
matter. The failure of any party at any time or times to require
performance of any provisions of this Agreement shall in no
manner affect the right to enforce the same. No waiver by any
party of any conditions, or of the breach of any term, provision,
warranty, representation, agreement or covenant contained in this
Agreement, whether by conduct or otherwise, in any one or more
instances shall be deemed or construed as a further or continuing
waiver of any such condition or breach of any other term,
provision, warranty, representation, agreement or covenant
contained in this Agreement.
17. Exclusive Remedy. The Parties agree that, from and
----------------
after the Closing Date, the rights and remedies of any party
under this Agreement shall be the sole and exclusive remedy of
the parties for Losses arising out of any breach of this
Agreement, the Exchange Agreement, the Registration Rights
Agreement or any of the transactions contemplated herein or
therein.
18. Severability. Any provision of this Agreement which is
------------
prohibited or unenforceable in any jurisdiction will, as to such
jurisdiction, be ineffective to the extent of such prohibition or
unenforceability without invalidating the remaining provisions of
this Agreement, and any such prohibition or unenforceability in
any jurisdiction will not invalidate or render unenforceable such
provision in any other jurisdiction. To the extent permitted by
law, the Parties waive any provision of law which renders any
such provision prohibited or unenforceable in any respect.
<PAGE>
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be executed as of the date first above written.
SEACOR HOLDINGS, INC.
---------------------
By: /s/ Milton Rose
------------------------------------
Name: Milton Rose
Title: Vice-President
STOCKHOLDERS
------------
/s/ Deanne Colligan and Madeline Colligan
-----------------------------------------
Deanne Colligan and Madeline Colligan,
Trustees of the HAM Trust created by Norman
F. McCall and Jacqueline C. McCall by Act
dated December 9, 1980 before Gregory James
Klumpp, notary.
/s/ Deanne Colligan and Madeline Colligan
-----------------------------------------
Deanne Colligan and Madeline Colligan,
Trustees of the PDM Trust created by Norman
F. McCall and Jacqueline C. McCall by Act
dated December 9, 1980 before Gregory James
Klumpp, notary.
/s/ Deanne Colligan and Madeline Colligan
-----------------------------------------
Deanne Colligan and Madeline Colligan,
Trustees of the JKM Trust created by Norman
F. McCall and Jacqueline C. McCall by Act
dated December 9, 1980 before Gregory James
Klumpp, notary.
/s/ Gertrude Colligan
----------------------------------------
Gertrude Colligan, Individually and as
Usufructuary.
/s/ James A. Colligan
----------------------------------------
James A. Colligan
/s/ Nell Colligan
----------------------------------------
Nell Colligan
<PAGE>
/s/ Madeline Colligan
----------------------------------------
Madeline Colligan
/s/ Deanne Colligan
----------------------------------------
Deanne Colligan
NYFS11...:\93\73293\0011\1711\EXH5306C.370
EXHIBIT 10.6
INDEMNIFICATION AGREEMENT
-------------------------
THIS INDEMNIFICATION AGREEMENT ("Agreement") is made and
entered into as of the 31st day of May, 1996, among the
stockholder of Philip A. McCall, Inc., a Louisiana corporation
(the "Company"), listed on Exhibit A hereto (the "Stockholder"),
and SEACOR Holdings, Inc., a Delaware corporation ("SEACOR").
RECITALS:
--------
A. SEACOR, McCall Enterprises, Inc. ("McCall") and the
Stockholder have entered into a Share Exchange Agreement and Plan
of Reorganization relating to the Company, dated as of May 31,
1996 (the "Exchange Agreement"), pursuant to which McCall shall
acquire the Company Shares owned by the Stockholder in exchange
for SEACOR Common Stock;
B. The execution and delivery of this Agreement by the
Stockholder constitute a condition precedent to SEACOR's
obligations under the Exchange Agreement; and
C. On the date hereof, pursuant to other acquisition
transactions contemplated by certain other agreements of even
date herewith (the "Other Agreements" and, together with the
Exchange Agreement, the "Transaction Agreements"), SEACOR also is
acquiring, directly or indirectly, all of the equity interests in
the other Companies (as defined in the Exchange Agreement) and,
in connection therewith, SEACOR and the stockholders of certain
of such other Companies will execute and deliver Indemnification
Agreements of even date herewith that are similar to this
Agreement (the "Other Indemnification Agreements" and, together
with this Agreement, the "Indemnification Agreements").
In consideration of the foregoing and of the
representations, warranties, covenants and agreements set forth
in this Agreement, the parties hereto, intending to be legally
bound, agree as follows:
1. Definitions. Capitalized terms used but not otherwise
-----------
defined in this Agreement shall have the meanings ascribed to
such terms in the Exchange Agreement.
2. Indemnification.
---------------
(a) Subject to the other provisions of this Agreement,
from and after the Closing, the Stockholder shall indemnify and
<PAGE>
hold harmless SEACOR and its Affiliates, each of their respective
officers, directors, employees, agents and representatives, and
each of the heirs, executors, successors and assigns of any of
the foregoing (individually, a "SEACOR Indemnified Party" and,
collectively, the "SEACOR Indemnified Parties"), against any
losses, claims, damages, liabilities or expenses whenever arising
or incurred (including, without limitation, amounts paid in
settlement, reasonable costs of investigation and reasonable
attorneys' fees and expenses) (hereinafter "Losses") arising out
of or relating to (i) any and all Taxes with respect to all
taxable periods (or portions thereof) of the Company ending on or
prior to the Closing Date and, to the extent provided in Section
3(a) hereof, all taxable periods that include, and end after, the
Closing Date (other than, in each case, Taxes for which
sufficient current accruals have been made on the Closing Balance
Sheet) and (ii) any breach of any representation, warranty,
covenant or agreement made by (A) the Stockholder in the Exchange
Agreement, (B) the Stockholder in the Investment and Registration
Rights Agreement among SEACOR and the Stockholders of even date
herewith (the "Registration Rights Agreement") and (C) the
Stockholder in this Agreement; provided, however, that, with
-------- -------
respect to any breach of any representation or warranty made by a
Stockholder pursuant to the Registration Rights Agreement or this
Agreement, no Stockholder (other than the Stockholder who commits
such breach) shall have liability for such breach. It is
understood that the Stockholder shall have no liability for
indemnification under clause (ii) above in the absence of a
breach of any representation, warranty, covenant or agreement
referred to therein.
(b) Subject to the other provisions of this Agreement, from
and after the Closing, SEACOR shall indemnify and hold harmless
the Stockholder and each of his employees, agents and
representatives, and each of the heirs, executors, successors and
assigns of any of the foregoing (individually, a "Company
Indemnified Party" and, collectively, the "Company Indemnified
Parties"), against any Losses arising out of or relating to any
breach of any representation, warranty, covenant or agreement
made by SEACOR in (i) the Exchange Agreement, (ii) the
Registration Rights Agreement or (iii) this Agreement.
(c) For the purposes hereof, a SEACOR Indemnified Party or
a Company Indemnified Party seeking indemnification pursuant to
this Agreement is referred to as an "Indemnified Party", and the
party from whom such indemnification is sought is referred to as
the "Indemnifying Party."
(d) No Indemnified Party shall be entitled to make any
claim for indemnification pursuant to this Agreement after the
applicable Claims Period (as defined in Section 5 hereof).
<PAGE>
(e) Except as otherwise provided in Section 3 hereof in
respect of matters relating to Taxes, the following provisions
shall apply:
(i) Promptly after receipt by an Indemnified
Party of notice of the commencement of any action or
proceeding involving a claim in respect of which
indemnification is being sought, such Indemnified Party
will, if a claim for indemnification hereunder is to be made
against the Indemnifying Party, give written notice to the
Indemnifying Party of the commencement of such action or
proceeding, the basis for such claim for indemnification and
such other information relating thereto as the Indemnifying
Party may reasonably request; provided, however, that
-------- -------
failure to so notify the Indemnifying Party or to provide
such information shall not relieve such Indemnifying Party
from any liability which it may have with respect to such
claim, except to the extent that it is actually materially
prejudiced by such failure to give notice.
(ii) In case any such action is brought against
an Indemnified Party, unless in such Indemnified Party's
reasonable judgment (A) a conflict of interest between the
Indemnified Party and the Indemnifying Party may exist in
respect of such claim, or (B) the Indemnified Party has
available to it reasonable defenses which are different from
or additional to those available to the Indemnifying Party,
the Indemnifying Party shall be entitled to assume and
control the defense of such action to the extent that it may
wish, with counsel reasonably satisfactory to such
Indemnified Party, and after notice from the Indemnifying
Party to such Indemnified Party of its election so to assume
and control the defense of such action, the Indemnifying
Party shall not be liable to such Indemnified Party for any
legal or other expenses subsequently incurred by the latter
in connection with the defense of such action other than
reasonable costs of investigation. If in such case the
Indemnifying Party elects not to do so, or if the
circumstances described in clause (A) or (B) above shall
apply, the Indemnified Party shall retain counsel reasonably
satisfactory to the Indemnifying Party, shall inform the
Indemnifying Party of the progress of the defense upon
request and shall respond to the reasonable requests of the
Indemnifying Party for information with respect thereto. In
any case in which the Indemnifying Party elects to assume
the defense, any Indemnified Party shall have the right to
retain its own counsel, but the fees and disbursements of
such counsel shall be at the expense of such Indemnified
Party unless the Indemnifying Party and such Indemnified
Party shall have mutually agreed to the retention of such
counsel. It is understood that the Indemnifying Party shall
not, in connection with any action or related actions in the
<PAGE>
same jurisdiction, be liable for the fees and disbursements
of more than one separate firm qualified in such
jurisdiction to act as counsel for all Indemnified Parties,
unless in any such Indemnified Party's reasonable judgment
(i) a conflict of interest between such Indemnified Party
and any other Indemnified Party may exist in respect of such
claim or (ii) such Indemnified Party has available to it
reasonable defenses which are different from or additional
to those available to other Indemnified Parties. The
Indemnifying Party shall not be liable for any settlement of
any proceeding effected without its written consent but if
settled with such consent or if there shall be a final
judgment for the plaintiff, the Indemnifying Party agrees to
indemnify the Indemnified Party from and against any Losses
by reason of such settlement or judgment (it being
understood that, as provided in Section 2(a), except as
otherwise provided in the proviso to such Section 2(a)).
Other than with respect to claims under Section 2(a)(i)
hereof, the Indemnifying Party shall not, without the
consent of the Indemnified Party, consent to entry of any
judgment or enter into any settlement which does not include
as an unconditional term the giving by the claimant or
plaintiff to such Indemnified Party of a release from all
liability in respect to such claim or litigation. Any
dispute as to whether any Indemnified Party is entitled to
indemnification in connection with any action or proceeding
under Section 2(e)(i) or this Section 2(e)(ii), the defense
or settlement of such action or proceeding, or any other
rights or obligations of the parties hereto in connection
with such action or proceeding shall be submitted to
arbitration in accordance with Section 7 of this Agreement.
(iii) In the event that an Indemnified Party
shall claim a right to payment pursuant to this Agreement
with respect to which there has been no action or proceeding
involving such claim pursuant to Section 2(e)(i) hereof,
such Indemnified Party shall send written notice of such
claim to the Indemnifying Party. Such notice shall specify
the basis for such claim in reasonable detail. As promptly
as possible after the Indemnified Party has given such
notice, such Indemnified Party and the Indemnifying Party
shall establish the merits and amount of Losses, if any, to
which the Indemnified Party is entitled. If the parties do
not agree with respect to these matters within 30 days after
the giving of such notice, either party may submit the
matter to arbitration in accordance with Section 7 of this
Agreement. In such arbitration, if the arbitrator
determines that a breach of a representation, warranty,
covenant or agreement in the Exchange Agreement, the
Registration Rights Agreement or this Agreement by the
Indemnifying Party occurred and that such breach caused
Losses to an Indemnified Party, the arbitrator will
<PAGE>
determine the amount of any such Losses. Within ten
business days after the final determination of the merits of
such claim and amount of such Losses, the Indemnifying Party
shall, subject to the limitations set forth herein, deliver
to the Indemnified Party an amount of cash in immediately
available funds sufficient to satisfy such Losses or the
portion of such Losses for which such Indemnifying Party is
obligated to provide indemnity hereunder.
(iv) If the Stockholder fails to timely deliver
cash in the amount of any Losses payable by the Stockholder
under the terms of this Agreement, the SEACOR Indemnified
Party to whom such amount is payable shall have the right to
such number of Escrow Shares (as defined in Section 6
hereof) as shall have a value equal to such amount. For
purposes hereof, Escrow Shares shall be deemed to have the
same value per share as the Average Market Price; provided,
--------
however, in the event that the Current Market Price (as
-------
hereinafter defined) as of the date of payment is less than
the Average Market Price, Escrow Shares shall be deemed to
have the same value per share as the Current Market Price.
For purposes hereof, "Current Market Price" shall mean the
average of the daily closing sale prices per share of SEACOR
Common Stock on the NASDAQ Stock Market (or, if the NASDAQ
Stock Market ceases to be the principal national securities
exchange on which such stock is traded, on the principal
national securities exchange on which such stock is traded)
for the ten consecutive trading days that end on the trading
day prior to the date of payment.
3. Covenants Regarding Tax Matters. (a) To the extent
-------------------------------
permitted by applicable law, the Stockholder, the Company and
SEACOR will elect or cause to be elected with the relevant taxing
authority to close the taxable period of the Company on the
Closing Date. In any case where applicable law does not permit
the Company to close its taxable year on the Closing Date, then
Taxes, if any, attributable to the taxable period of the Company
beginning before and ending after the Closing Date shall be
allocated (i) to the Stockholder for the period up to and
including the Closing Date to the extent such Taxes exceed the
reserve therefor on the Closing Balance Sheet and (ii) to SEACOR
for the period up to and including the Closing Date to the extent
such Taxes do not exceed the reserve therefor on the Closing Date
Balance Sheet and for the period subsequent to the Closing Date.
For purposes of this Section 3(a), Taxes for the period up to and
including the Closing Date and for the period subsequent to the
Closing Date shall be determined on the basis of an interim
closing of the books as of the Closing Date or, to the extent not
susceptible to such allocation, by apportionment on the basis of
elapsed days.
<PAGE>
(b) (i) The Stockholder shall be responsible for
causing to be filed all Returns required to be filed by or on
behalf of the Company on or before the Closing Date (taking into
account applicable extensions) and shall pay or cause to be paid
any Taxes shown to be due thereon. The Stockholder shall file or
cause to be filed all such Returns in a manner consistent with
past practices and, upon SEACOR's request, shall provide copies
of such Returns to SEACOR for SEACOR's review and comment at
least fifteen (15) business days prior to filing. SEACOR shall
be responsible for filing or causing to be filed all Returns
required to be filed by or on behalf of the Company after the
Closing Date (taking into account applicable extensions) and
shall pay or cause to be paid any Taxes shown to be due thereon.
(ii) With respect to any Return of the Company
required to be filed by SEACOR for a taxable period of the
Company beginning before and ending on or after the Closing Date,
the Stockholder shall provide SEACOR with a statement, within
forty-five days after the Closing Date, setting forth the amount
of Tax that the Stockholder believes is allocable to him pursuant
to Section 3(a) hereof or for which he is responsible pursuant to
Section 2(a)(i) hereof (the "Statement") and copies of such Tax
Return. The Statement shall provide (with reasonable
specificity) the bases on which such Taxes were allocable to the
Stockholder. SEACOR shall have the right to review such Tax
Return and the Statement prior to the filing of such Tax Return.
The Stockholder and SEACOR agree to consult and resolve in good
faith any issue arising as a result of the review of such Tax
Return and the Statement and to mutually consent to the filing as
promptly as possible of such Tax Return. If the parties are
unable to resolve any disagreement within fifteen business days
following SEACOR's receipt of such Tax Return and Statement, the
parties shall jointly request such independent accounting firm as
they shall select to resolve any issue in dispute as promptly as
possible and shall cooperate with such accounting firm to resolve
such disagreement. If such independent accounting firm is unable
to make a determination with respect to any disputed issue prior
to the due date (including extensions) for the filing of the Tax
Return in question, then SEACOR may file such Tax Return on the
due date (including extensions) therefor without such
determination having been made. Notwithstanding the filing of
such Tax Return, such independent accounting firm shall make a
determination with respect to any disputed issue, and the amount
of Taxes that are allocated to the Stockholder pursuant to
Section 3(a) hereof for which the Stockholder is responsible
pursuant to Section 2(a)(i) hereof shall be as determined by such
independent accounting firm. The fees and expenses of such
independent accounting firm shall be paid one-half by SEACOR and
one-half by the Stockholder. Not later than five (5) business
days before the due date (including extensions) for the filing of
such Tax Return or, in the case of a dispute, not later than five
(5) business days after notice to the Stockholder of resolution
<PAGE>
thereof, the Stockholder shall pay to SEACOR an amount equal to
the Taxes shown on the Statement as being the responsibility of
the Stockholder pursuant to Section 2(a)(i) hereof or allocable
to the Stockholder pursuant to Section 3(a) hereof (as the case
may be). No payment pursuant to this Section 3(b)(ii) shall
excuse the Stockholder from their indemnification obligations
pursuant to Section 2(a)(i) hereof should the amount of Taxes as
ultimately determined (on audit or otherwise), for the periods
covered by such Returns and which are the responsibility of the
Stockholder, exceed the amount of the Stockholder payment under
this Section 3(b)(ii).
(iii) The Stockholder may not file any amended Returns
or refund claims in respect of any taxable period of the Company
ending on or prior to the Closing Date without the prior written
consent of SEACOR.
(c) The Stockholder shall cooperate fully with SEACOR
and make available to SEACOR in a timely fashion such Tax data
and other information as may be reasonably required for the
preparation by SEACOR of any Returns required to be prepared and
filed by SEACOR hereunder. The Stockholder and SEACOR shall make
available to the other, as reasonably requested, all information,
records or documents in their possession relating to Tax
liabilities of the Company for all taxable periods of the Company
ending on, prior to or including the Closing Date and shall
preserve all such information, records and documents until the
expiration of any applicable Tax statute of limitations or
extensions thereof or, if a proceeding has been instituted for
which the information, records or documents is required, until
there is a final determination with respect to such proceeding.
(d) (i) SEACOR shall promptly notify the Stockholder
upon receipt by SEACOR or the Company of written notice of any
Tax audits of or proposed assessments against the Company for
taxable periods of the Company ending on or prior to the Closing
Date; provided, however, that the failure of SEACOR to give the
-------- -------
Stockholder prompt notice as required herein shall not relieve
the Stockholder of any of his obligations under Section 2 or 3
hereof, except to the extent that the Stockholder is actually and
materially prejudiced thereby. SEACOR shall have the right to
represent the interests of the Company in any such Tax audit or
administrative or court proceeding and to employ counsel
reasonably acceptable to the Stockholder; provided, that SEACOR
may not agree to a settlement or compromise thereof without the
prior written consent of the Stockholder, which consent may be
withheld solely in the event that the Stockholder has been
advised by counsel reasonably acceptable to SEACOR that it is
more likely than not that the issue under audit (or the proposed
assessment) would be decided favorably to the Company. The
Stockholder agrees that he will cooperate fully with SEACOR and
<PAGE>
its counsel in the defense against or compromise of any claim in
any said audit or proceeding.
(ii) The Stockholder shall promptly notify SEACOR
upon receipt by the Stockholder of written notice of any Tax
audit or proposed assessment or other proposed change or
adjustment which may affect the Company or their Tax attributes.
The Stockholder shall keep SEACOR duly informed of the progress
thereof and, if the results of such Tax audit or proceeding may
have an adverse effect on the Company, SEACOR or its affiliates
for any taxable period including or ending after the Closing
Date, then the Stockholder may not agree to a settlement or
compromise thereof without SEACOR's consent, which written
consent will not be unreasonably withheld.
(e) The Stockholder and SEACOR agree to treat any
indemnity payment made pursuant to this Agreement as an
adjustment to the Total Exchanged Shares for federal, state,
local and foreign income tax purposes. If, notwithstanding such
treatment by the parties, any indemnity payment is determined to
be taxable to SEACOR, the Company or its Affiliates by any taxing
authority, the Stockholder shall indemnify SEACOR and its
Affiliates for any Taxes payable by reason of the receipt of such
indemnity payment (including any payments under this Section
3(e).
4. Liability Limits.
----------------
(a) Neither the Stockholder, on the one hand, nor
SEACOR on the other, shall have any liability for Losses in
respect of claims for indemnification under Section 2 hereof
until the aggregate amount of such Losses exceeds the greater
of $200,000 or 1% of the Total Exchanged Shares (the
"Threshold"), in which event the applicable Indemnifying Party or
Parties shall, subject to the other provisions of this Section 4,
be liable for the total amount of such Losses (including Losses
below the Threshold).
(b) The aggregate liability of the Stockholder for
Losses pursuant to this Agreement shall not exceed the following:
(i) in the absence of fraud, with respect to any
claim for indemnity pursuant to (A) Section
2(a)(i) hereof, (B) Section 2(a)(ii)(A) hereof for
any breach of any representation or warranty made
by the Stockholders in the first sentence of
Section 4.11(a) of the Exchange Agreement, in
Section 4.13 of the Exchange Agreement, or in
Section 4.18 of the Exchange Agreement or (C)
pursuant to Section 2(a)(ii)(B) or 2(a)(ii)(C)
hereof, an amount equal to the value of the total
<PAGE>
consideration paid to such Stockholder pursuant to
the Transaction Agreements; and
(ii) with respect to any other claim for indemnity
hereunder, an amount equal to 30% of the value of
the total consideration paid to such Stockholder
pursuant to the Transaction Agreements;
provided, however, that, in the absence of fraud, (1) in no event
-------- -------
shall the liability of any Stockholder under the Indemnification
Agreements exceed, in the aggregate, the value of the total
consideration paid to such Stockholder pursuant to the
Transaction Agreements and (2) in no event shall the liability of
any Stockholder under the Indemnification Agreements in respect
of matters for which liability, by the terms of such agreements,
is limited to an amount equal to 30% of the total consideration
paid such Stockholder pursuant to the Transaction Agreements
exceed, in the aggregate, an amount equal to 30% of such total
consideration.
(c) The aggregate liability of SEACOR for Losses
pursuant to this Agreement shall not exceed the following:
(i) with respect to any claim for indemnity
pursuant to (A) Section 2(b)(i) hereof for any
breach of any representation or warranty made by
SEACOR pursuant to Section 5.10 of the Exchange
Agreement, or (B) Section 2(b)(ii) or 2(b)(iii)
hereof, an amount equal to the Total Exchanged
Shares; and
(ii) with respect to any other claim for indemnity
hereunder, an amount equal to 30% of the Total
Exchanged Shares;
provided, however, that, in the absence of fraud, (1) in no event
-------- -------
shall the liability of SEACOR under the Indemnification
Agreements exceed, in the aggregate, the value of the total
consideration paid by SEACOR or its Affiliates pursuant to the
Transaction Agreements or (2) in no event shall the liability of
SEACOR under the Indemnification Agreements in respect of matters
for which liability, by the terms of such agreements, is limited
to an amount equal to 30% of the total consideration paid by
SEACOR or its Affiliates pursuant to the Transactions Agreements
exceed, in the aggregate, 30% of such total consideration.
5. Claim Periods. The term "Claims Period" shall mean the
-------------
following:
(a) With respect to any claim for indemnity under
Section 2(a)(i) hereof, 2(a)(ii)(A) hereof for any breach of any
representation or warranty made by the Stockholder pursuant to
<PAGE>
Section 4.18 of the Exchange Agreement or a breach of Section 3
hereof, sixty (60) days following the expiration of the
applicable Tax statute of limitations with respect to the
relevant taxable period (including extensions);
(b) With respect to any claim for indemnity (i)
pursuant to Section 2(a)(ii)(A) hereof for any breach of any
representation or warranty made by the Stockholder pursuant to
(i) the first sentence of Section 4.11(a) of the Exchange
Agreement, Section 4.13 of the Exchange Agreement or (ii)
pursuant to Section 2(a)(ii)(B) or 2(a)(ii)(C) hereof, the period
of time commencing as of the date hereof and continuing for an
unlimited period of time thereafter;
(c) with respect to any other claim for indemnity
against the Stockholders hereunder, the period of time commencing
on the date hereof and expiring on the second anniversary of the
Closing Date;
(d) With respect to any claim for indemnity pursuant
to Section 2(b)(i) hereof for any breach of any representation or
warranty made by SEACOR pursuant to Section 5.10 of the Exchange
Agreement or pursuant to Section 2(b)(ii) or 2(b)(iii) hereof,
the period of time commencing as of the date hereof continuing
for an unlimited period of time hereafter; and
(e) With respect to any other claim for indemnity
against SEACOR hereunder, the period of time commencing as of the
date hereof and expiring on the second anniversary of the Closing
Date.
6. Escrow of Shares. The Stockholder hereby agrees that a
----------------
number of shares of SEACOR Common Stock equal to ten percent
(10%) of the number of shares of SEACOR Common Stock to be
delivered to the Stockholder as Exchanged Shares (the "Escrow
Shares") shall be delivered by the Exchange Agent to Bank of
Montreal Trust Company, as escrow agent (the "Escrow Agent"),
pursuant to the terms of an Escrow Agreement (the "Escrow
Agreement") in the form attached hereto as Exhibit B. The Escrow
Shares shall secure the obligations of the Stockholder to SEACOR
pursuant to Section 2(a) of this Agreement in accordance with the
terms of the Escrow Agreement. The Stockholder shall be entitled
to direct the Escrow Agent to deliver all or any portion of the
Escrow Shares owned by the Stockholder to any Indemnified Party
as provided in Sections 2(e)(ii) and 2(e)(iii) hereof.
7. Jurisdiction and Forum; Arbitration. Any controversy
-----------------------------------
arising under, out of, in connection with, or relating to, this
Agreement, and any amendment hereof, or the breach hereof or
thereof, shall be determined and settled by arbitration in New
York, New York, by an arbitrator or arbitrators mutually agreed
upon by SEACOR and the Stockholder or, if SEACOR and the
<PAGE>
Stockholder shall fail or be unable to so agree within ten
Business Days after the written request therefor by SEACOR or the
Stockholder to the other, such arbitrator or arbitrators as may
be selected in accordance with the rules of the American Arbi-
tration Association. Any award rendered therein shall specify
the findings of fact of the arbitrator or arbitrators and the
reasons for such award, with reference to and reliance on
relevant law. Any such award shall be final and binding on each
and all of the parties thereto and their personal representa-
tives, and judgment may be entered thereon in any court having
jurisdiction thereof.
8. Representations and Warranties of the Stockholder and
-----------------------------------------------------
SEACOR.
------
(a) The Stockholder hereby represents and warrants to
each other party hereto that:
(i) this Agreement has been duly authorized,
executed and delivered by such Stockholder and constitutes
the legal, valid and binding agreement of such Stockholder,
enforceable against such Stockholder in accordance with its
terms, except as enforceability may be limited by bank-
ruptcy, insolvency, reorganization, or other laws affecting
creditors' rights and remedies generally and by general
principles of equity (regardless of whether such enforce-
ability is considered in a proceeding in equity or at law);
and
(ii) the execution, delivery and performance of
this Agreement and the consummation of the transactions
contemplated by this Agreement will not violate or conflict
with, constitute a breach of or default under, result in the
loss of any material benefit under, or permit the accelera-
tion of or entitle any party to accelerate any obligation
under or pursuant to, any material mortgage, lien, lease,
agreement, instrument, order, arbitration award, judgment or
decree to which such Stockholder is a party or by which it
or any of its assets are bound.
(b) SEACOR hereby represents and warrants to each
other party hereto that:
(i) this Agreement has been duly authorized,
executed and delivered by it and constitutes the legal,
valid and binding agreement of it, enforceable against it in
accordance with its terms, except as enforceability may be
limited by bankruptcy, insolvency, reorganization, or other
laws affecting creditors' rights and remedies generally and
by general principles of equity (regardless of whether such
enforceability is considered in a proceeding in equity or at
law); and
<PAGE>
(ii) the execution, delivery and performance of
this Agreement and the consummation of the transactions
contemplated by this Agreement will not violate or conflict
with, constitute a breach of or default under, result in the
loss of any material benefit under, or permit the accelera-
tion of or entitle any party to accelerate any obligation
under or pursuant to, any material mortgage, lien, lease,
agreement, instrument, order, arbitration award, judgment or
decree to which it is a party or by which it or any of its
assets are bound.
9. [Intentionally Omitted]
10. Notices. All notices, communications and deliveries
-------
required or permitted by this Agreement shall be made in writing
signed by the party making the same, shall specify the Section of
this Agreement pursuant to which it is given or being made, and
shall be deemed given or made (i) on the date delivered if
delivered by telecopy or in person, (ii) on the third business
day after it is mailed if mailed by registered or certified mail
(return receipt requested) (with postage and other fees prepaid),
or (iii) on the day after it is delivered, prepaid, to an
overnight express delivery service that confirms to the sender
delivery on such day, as follows:
To SEACOR:
SEACOR Holdings, Inc.
1370 Avenue of the Americas
25th Floor
New York, New York 10019
Attn: Randall Blank
Telecopy No.: (212) 582-8522
with a copy to:
Weil, Gotshal & Manges LLP
767 Fifth Avenue
New York, New York 10153
Attn: David E. Zeltner, Esq.
Telecopy No.: (212) 310-8007
To the Stockholder:
c/o McCall's Boat Rentals, Inc.
432 Marshall Street
Cameron, Louisiana 70631
Attn: Norman McCall
Telecopy No.: (318) 775-7025
<PAGE>
with a copy to:
Stockwell, Sievert, Viccellio,
Clements & Shaddock
P.O. Box 2900
Lake Charles, Louisiana 70602
Attn: William E. Shaddock, Esq.
Telecopy No.: (318) 493-7210
with an additional copy to:
Jones, Walker, Waechter, Poitevent,
Carrere & Denegre, L.L.P.
Place St. Charles
201 St. Charles Avenue
New Orleans, Louisiana 70170-5100
Attn: Carl C. Hanemann, Esq.
Telecopy No.: (504) 582-8398
or to such other representative or at such other address of a
party as such party hereto may furnish to the other Parties in
writing. If notice is given pursuant to this Section 10 of any
assignment to a permitted successor or assign of a party hereto,
the notice shall be given as set forth above to such successor or
assign of such party.
11. Time of the Essence; Computation of Time. Time is of
----------------------------------------
the essence for each and every provision of this Agreement.
Whenever the last day for the exercise of any privilege or the
discharge of any duty under this Agreement shall fall upon a
Saturday, Sunday or any date on which banks in New Orleans,
Louisiana or New York, New York are closed, the party having such
privilege or duty may exercise such privilege or discharge such
duty on the next succeeding day which is a regular business day.
12. Successors in Interest. This Agreement shall be
----------------------
binding upon and shall inure to the benefit of the Parties and
their permitted successors and assigns, and any reference to a
party shall also be a reference to a permitted successor or
assign.
13. Number; Gender. Whenever the context so requires, the
--------------
singular number shall include the plural and the plural shall
include the singular, and the gender of any pronoun shall include
the other genders.
14. Captions. The titles and captions contained in this
--------
Agreement are inserted in this Agreement only as a matter of
convenience and for reference and in no way define, limit, extend
or describe the scope of this Agreement or the intent of any
provision of this Agreement. Unless otherwise specified to the
contrary, all references to Sections are references to Sections
of this Agreement.
<PAGE>
15. Amendments. To the extent permitted by law, this
----------
Agreement may be amended by a subsequent writing signed by all of
the Parties.
16. Controlling Law; Integration; Waiver. This Agreement
------------------------------------
shall be governed by and construed and enforced in accordance
with the laws of the State of New York, without giving effect to
the principles thereof relating to the conflict or choice of
laws. This Agreement supersedes all negotiations, agreements
and understandings among the parties with respect to the subject
matter of this Agreement and constitutes the entire agreement
among the parties to this Agreement with respect to such subject
matter. The failure of any party at any time or times to require
performance of any provisions of this Agreement shall in no
manner affect the right to enforce the same. No waiver by any
party of any conditions, or of the breach of any term, provision,
warranty, representation, agreement or covenant contained in this
Agreement, whether by conduct or otherwise, in any one or more
instances shall be deemed or construed as a further or continuing
waiver of any such condition or breach of any other term,
provision, warranty, representation, agreement or covenant
contained in this Agreement.
17. Exclusive Remedy. The Parties agree that, from and
----------------
after the Closing Date, the rights and remedies of any party
under this Agreement shall be the sole and exclusive remedy of
the parties for Losses arising out of any breach of this
Agreement, the Exchange Agreement, the Registration Rights
Agreement or any of the transactions contemplated herein or
therein.
18. Severability. Any provision of this Agreement which is
------------
prohibited or unenforceable in any jurisdiction will, as to such
jurisdiction, be ineffective to the extent of such prohibition or
unenforceability without invalidating the remaining provisions of
this Agreement, and any such prohibition or unenforceability in
any jurisdiction will not invalidate or render unenforceable such
provision in any other jurisdiction. To the extent permitted by
law, the Parties waive any provision of law which renders any
such provision prohibited or unenforceable in any respect.
<PAGE>
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be executed as of the date first above written.
SEACOR HOLDINGS, INC.
---------------------
By: /s/ Milton Rose
------------------------------------
Name: Milton Rose
Title: Vice-President
STOCKHOLDERS
------------
/s/ James A. Colligan
----------------------------------------
James A. Colligan
/s/ Nell Colligan
----------------------------------------
Nell Colligan
NYFS11...:\93\73293\0011\1711\EXH5306E.360
EXHIBIT 10.7
INDEMNIFICATION AGREEMENT
-------------------------
THIS INDEMNIFICATION AGREEMENT ("Agreement") is made and
entered into as of the 31st day of May, 1996, among all of the
stockholders of Cameron Crews, Inc., a Louisiana corporation (the
"Company"), listed on Exhibit A hereto (collectively, the
"Stockholders"), Norman McCall, acting as representative of the
Stockholders (in such capacity and his successor(s) being
referred to as the "Representative"), and SEACOR Holdings, Inc.,
a Delaware corporation ("SEACOR").
RECITALS:
--------
A. SEACOR, McCall Enterprises, Inc. ("McCall") and the
Stockholders have entered into a Share Exchange Agreement and
Plan of Reorganization relating to the Company, dated as of May
31, 1996 (the "Exchange Agreement"), pursuant to which McCall
shall acquire the Company Shares owned by the Stockholders in
exchange for SEACOR Common Stock;
B. The execution and delivery of this Agreement by each
of the Stockholders constitute a condition precedent to SEACOR's
obligations under the Exchange Agreement; and
C. On the date hereof, pursuant to other acquisition
transactions contemplated by certain other agreements of even
date herewith (the "Other Agreements" and, together with the
Exchange Agreement, the "Transaction Agreements"), SEACOR also is
acquiring, directly or indirectly, all of the equity interests in
the other Companies (as defined in the Exchange Agreement) and,
in connection therewith, SEACOR and the stockholders of certain
of such other Companies will execute and deliver Indemnification
Agreements of even date herewith that are similar to this
Agreement (the "Other Indemnification Agreements" and, together
with this Agreement, the "Indemnification Agreements").
In consideration of the foregoing and of the
representations, warranties, covenants and agreements set forth
in this Agreement, the parties hereto, intending to be legally
bound, agree as follows:
1. Definitions. Capitalized terms used but not otherwise
-----------
defined in this Agreement shall have the meanings ascribed to
such terms in the Exchange Agreement.
<PAGE>
2. Indemnification.
---------------
(a) Subject to the other provisions of this Agreement,
from and after the Closing, the Stockholders shall indemnify and
hold harmless, severally and not jointly, in accordance with
their respective proportionate interests as reflected on Exhibit
A hereto (except as provided in the proviso to this Section 2(a))
SEACOR and its Affiliates, each of their respective officers,
directors, employees, agents and representatives, and each of the
heirs, executors, successors and assigns of any of the foregoing
(individually, a "SEACOR Indemnified Party" and, collectively,
the "SEACOR Indemnified Parties"), against any losses, claims,
damages, liabilities or expenses whenever arising or incurred
(including, without limitation, amounts paid in settlement,
reasonable costs of investigation and reasonable attorneys' fees
and expenses) (hereinafter "Losses") arising out of or relating
to (i) any and all Taxes with respect to all taxable periods (or
portions thereof) of the Company ending on or prior to the
Closing Date and, to the extent provided in Section 3(a) hereof,
all taxable periods that include, and end after, the Closing Date
(other than, in each case, Taxes for which sufficient current
accruals have been made on the Closing Balance Sheet) and (ii)
any breach of any representation, warranty, covenant or agreement
made by (A) the Stockholders in the Exchange Agreement, (B) the
Stockholders in the Investment and Registration Rights Agreement
among SEACOR and the Stockholders of even date herewith (the
"Registration Rights Agreement") and (C) the Stockholders in this
Agreement; provided, however, that, with respect to any breach of
-------- -------
any representation or warranty made by a Stockholder pursuant to
the Registration Rights Agreement or this Agreement, no
Stockholder (other than the Stockholder who commits such breach)
shall have liability for such breach. It is understood that the
Stockholders shall have no liability for indemnification under
clause (ii) above in the absence of a breach of any
representation, warranty, covenant or agreement referred to
therein.
(b) Subject to the other provisions of this Agreement, from
and after the Closing, SEACOR shall indemnify and hold harmless
the Stockholders and each of their employees, agents and
representatives, and each of the heirs, executors, successors and
assigns of any of the foregoing (individually, a "Company
Indemnified Party" and, collectively, the "Company Indemnified
Parties"), against any Losses arising out of or relating to any
breach of any representation, warranty, covenant or agreement
made by SEACOR in (i) the Exchange Agreement, (ii) the
Registration Rights Agreement or (iii) this Agreement.
(c) For the purposes hereof, a SEACOR Indemnified Party or
a Company Indemnified Party seeking indemnification pursuant to
this Agreement is referred to as an "Indemnified Party", and the
<PAGE>
party from whom such indemnification is sought is referred to as
the "Indemnifying Party."
(d) No Indemnified Party shall be entitled to make any
claim for indemnification pursuant to this Agreement after the
applicable Claims Period (as defined in Section 5 hereof).
(e) Except as otherwise provided in Section 3 hereof in
respect of matters relating to Taxes, the following provisions
shall apply:
(i) Promptly after receipt by an Indemnified
Party of notice of the commencement of any action or
proceeding involving a claim in respect of which
indemnification is being sought, such Indemnified Party
will, if a claim for indemnification hereunder is to be made
against the Indemnifying Party, give written notice to the
Indemnifying Party of the commencement of such action or
proceeding, the basis for such claim for indemnification and
such other information relating thereto as the Indemnifying
Party may reasonably request; provided, however, that
-------- -------
failure to so notify the Indemnifying Party or to provide
such information shall not relieve such Indemnifying Party
from any liability which it may have with respect to such
claim, except to the extent that it is actually materially
prejudiced by such failure to give notice.
(ii) In case any such action is brought against
an Indemnified Party, unless in such Indemnified Party's
reasonable judgment (A) a conflict of interest between the
Indemnified Party and the Indemnifying Party may exist in
respect of such claim, or (B) the Indemnified Party has
available to it reasonable defenses which are different from
or additional to those available to the Indemnifying Party,
the Indemnifying Party shall be entitled to assume and
control the defense of such action to the extent that it may
wish, with counsel reasonably satisfactory to such
Indemnified Party, and after notice from the Indemnifying
Party to such Indemnified Party of its election so to assume
and control the defense of such action, the Indemnifying
Party shall not be liable to such Indemnified Party for any
legal or other expenses subsequently incurred by the latter
in connection with the defense of such action other than
reasonable costs of investigation. If in such case the
Indemnifying Party elects not to do so, or if the
circumstances described in clause (A) or (B) above shall
apply, the Indemnified Party shall retain counsel reasonably
satisfactory to the Indemnifying Party, shall inform the
Indemnifying Party of the progress of the defense upon
request and shall respond to the reasonable requests of the
Indemnifying Party for information with respect thereto. In
any case in which the Indemnifying Party elects to assume
<PAGE>
the defense, any Indemnified Party shall have the right to
retain its own counsel, but the fees and disbursements of
such counsel shall be at the expense of such Indemnified
Party unless the Indemnifying Party and such Indemnified
Party shall have mutually agreed to the retention of such
counsel. It is understood that the Indemnifying Party shall
not, in connection with any action or related actions in the
same jurisdiction, be liable for the fees and disbursements
of more than one separate firm qualified in such
jurisdiction to act as counsel for all Indemnified Parties,
unless in any such Indemnified Party's reasonable judgment
(i) a conflict of interest between such Indemnified Party
and any other Indemnified Party may exist in respect of such
claim or (ii) such Indemnified Party has available to it
reasonable defenses which are different from or additional
to those available to other Indemnified Parties. The
Indemnifying Party shall not be liable for any settlement of
any proceeding effected without its written consent but if
settled with such consent or if there shall be a final
judgment for the plaintiff, the Indemnifying Party agrees to
indemnify the Indemnified Party from and against any Losses
by reason of such settlement or judgment (it being
understood that, as provided in Section 2(a), if the
Stockholders are the Indemnifying Party such indemnification
obligation shall be several and not joint, in accordance
with the Stockholders' proportionate interests as reflected
on Exhibit A hereto, except as otherwise provided in the
proviso to such Section 2(a)). Other than with respect to
claims under Section 2(a)(i) hereof, the Indemnifying Party
shall not, without the consent of the Indemnified Party,
consent to entry of any judgment or enter into any
settlement which does not include as an unconditional term
the giving by the claimant or plaintiff to such Indemnified
Party of a release from all liability in respect to such
claim or litigation. Any dispute as to whether any
Indemnified Party is entitled to indemnification in
connection with any action or proceeding under Section
2(e)(i) or this Section 2(e)(ii), the defense or settlement
of such action or proceeding, or any other rights or
obligations of the parties hereto in connection with such
action or proceeding shall be submitted to arbitration in
accordance with Section 7 of this Agreement.
(iii) In the event that an Indemnified Party
shall claim a right to payment pursuant to this Agreement
with respect to which there has been no action or proceeding
involving such claim pursuant to Section 2(e)(i) hereof,
such Indemnified Party shall send written notice of such
claim to the Indemnifying Party. Such notice shall specify
the basis for such claim in reasonable detail. As promptly
as possible after the Indemnified Party has given such
notice, such Indemnified Party and the Indemnifying Party
<PAGE>
shall establish the merits and amount of Losses, if any, to
which the Indemnified Party is entitled. If the parties do
not agree with respect to these matters within 30 days after
the giving of such notice, either party may submit the
matter to arbitration in accordance with Section 7 of this
Agreement. In such arbitration, if the arbitrator
determines that a breach of a representation, warranty,
covenant or agreement in the Exchange Agreement, the
Registration Rights Agreement or this Agreement by the
Indemnifying Party occurred and that such breach caused
Losses to an Indemnified Party, the arbitrator will
determine the amount of any such Losses. Within ten
business days after the final determination of the merits of
such claim and amount of such Losses, the Indemnifying Party
shall, subject to the limitations set forth herein, deliver
to the Indemnified Party an amount of cash in immediately
available funds sufficient to satisfy such Losses or the
portion of such Losses for which such Indemnifying Party is
obligated to provide indemnity hereunder.
3. Covenants Regarding Tax Matters. (a) To the extent
-------------------------------
permitted by applicable law, the Representative, the Company and
SEACOR will elect or cause to be elected with the relevant taxing
authority to close the taxable period of the Company on the
Closing Date. In any case where applicable law does not permit
the Company to close its taxable year on the Closing Date, then
Taxes, if any, attributable to the taxable period of the Company
beginning before and ending after the Closing Date shall be
allocated (i) to the Stockholders for the period up to and
including the Closing Date to the extent such Taxes exceed the
reserve therefor on the Closing Balance Sheet and (ii) to SEACOR
for the period up to and including the Closing Date to the extent
such Taxes do not exceed the reserve therefor on the Closing Date
Balance Sheet and for the period subsequent to the Closing Date.
For purposes of this Section 3(a), Taxes for the period up to and
including the Closing Date and for the period subsequent to the
Closing Date shall be determined on the basis of an interim
closing of the books as of the Closing Date or, to the extent not
susceptible to such allocation, by apportionment on the basis of
elapsed days.
(b) (i) The Representative shall be responsible for
causing to be filed all Returns required to be filed by or on
behalf of the Company on or before the Closing Date (taking into
account applicable extensions) and shall pay or cause to be paid
any Taxes shown to be due thereon. The Representative shall file
or cause to be filed all such Returns in a manner consistent with
past practices and, upon SEACOR's request, shall provide copies
of such Returns to SEACOR for SEACOR's review and comment at
least fifteen (15) business days prior to filing. SEACOR shall
be responsible for filing or causing to be filed all Returns
required to be filed by or on behalf of the Company after the
<PAGE>
Closing Date (taking into account applicable extensions) and
shall pay or cause to be paid any Taxes shown to be due thereon.
(ii) With respect to any Return of the Company
required to be filed by SEACOR for a taxable period of the
Company beginning before and ending on or after the Closing Date,
the Representative shall provide SEACOR with a statement, within
forty-five days after the Closing Date, setting forth the amount
of Tax that the Representative believes is allocable to the
Stockholders pursuant to Section 3(a) hereof or for which the
Stockholders are responsible pursuant to Section 2(a)(i) hereof
(the "Statement") and copies of such Tax Return. The Statement
shall provide (with reasonable specificity) the bases on which
such Taxes were allocable to the Stockholders. SEACOR shall have
the right to review such Tax Return and the Statement prior to
the filing of such Tax Return. The Representative and SEACOR
agree to consult and resolve in good faith any issue arising as a
result of the review of such Tax Return and the Statement and to
mutually consent to the filing as promptly as possible of such
Tax Return. If the parties are unable to resolve any
disagreement within fifteen business days following SEACOR's
receipt of such Tax Return and Statement, the parties shall
jointly request such independent accounting firm as they shall
select to resolve any issue in dispute as promptly as possible
and shall cooperate with such accounting firm to resolve such
disagreement. If such independent accounting firm is unable to
make a determination with respect to any disputed issue prior to
the due date (including extensions) for the filing of the Tax
Return in question, then SEACOR may file such Tax Return on the
due date (including extensions) therefor without such
determination having been made. Notwithstanding the filing of
such Tax Return, such independent accounting firm shall make a
determination with respect to any disputed issue, and the amount
of Taxes that are allocated to the Stockholders pursuant to
Section 3(a) hereof for which the Stockholders are responsible
pursuant to Section 2(a)(i) hereof shall be as determined by such
independent accounting firm. The fees and expenses of such
independent accounting firm shall be paid one-half by SEACOR and
one-half by the Stockholders. Not later than five (5) business
days before the due date (including extensions) for the filing of
such Tax Return or, in the case of a dispute, not later than five
(5) business days after notice to the Representative of
resolution thereof, the Stockholders shall pay to SEACOR an
amount equal to the Taxes shown on the Statement as being the
responsibility of the Stockholders pursuant to Section 2(a)(i)
hereof or allocable to the Stockholders pursuant to Section 3(a)
hereof (as the case may be). No payment pursuant to this Section
3(b)(ii) shall excuse the Stockholders from their indemnification
obligations pursuant to Section 2(a)(i) hereof should the amount
of Taxes as ultimately determined (on audit or otherwise), for
the periods covered by such Returns and which are the
<PAGE>
responsibility of the Stockholders, exceed the amount of the
Stockholders payment under this Section 3(b)(ii).
(iii) The Stockholders may not file any amended
Returns or refund claims in respect of any taxable period of the
Company ending on or prior to the Closing Date without the prior
written consent of SEACOR.
(c) The Stockholders shall cooperate fully with SEACOR
and make available to SEACOR in a timely fashion such Tax data
and other information as may be reasonably required for the
preparation by SEACOR of any Returns required to be prepared and
filed by SEACOR hereunder. The Stockholders and SEACOR shall
make available to the other, as reasonably requested, all
information, records or documents in their possession relating to
Tax liabilities of the Company for all taxable periods of the
Company ending on, prior to or including the Closing Date and
shall preserve all such information, records and documents until
the expiration of any applicable Tax statute of limitations or
extensions thereof or, if a proceeding has been instituted for
which the information, records or documents is required, until
there is a final determination with respect to such proceeding.
(d) (i) SEACOR shall promptly notify the
Representative upon receipt by SEACOR or the Company of written
notice of any Tax audits of or proposed assessments against the
Company for taxable periods of the Company ending on or prior to
the Closing Date; provided, however, that the failure of SEACOR
-------- -------
to give the Representative prompt notice as required herein shall
not relieve the Stockholders of any of their obligations under
Section 2 or 3 hereof, except to the extent that the Stockholders
are actually and materially prejudiced thereby. SEACOR shall
have the right to represent the interests of the Company in any
such Tax audit or administrative or court proceeding and to
employ counsel reasonably acceptable to the Representative;
provided, that SEACOR may not agree to a settlement or compromise
thereof without the prior written consent of the Representative,
which consent may be withheld solely in the event that the
Representative has been advised by counsel reasonably acceptable
to SEACOR that it is more likely than not that the issue under
audit (or the proposed assessment) would be decided favorably to
the Company. The Stockholders agree that they will cooperate
fully with SEACOR and its counsel in the defense against or
compromise of any claim in any said audit or proceeding.
(ii) The Stockholders shall promptly notify SEACOR
upon receipt by the Stockholders of written notice of any Tax
audit or proposed assessment or other proposed change or
adjustment which may affect the Company or their Tax attributes.
The Stockholders shall keep SEACOR duly informed of the progress
thereof and, if the results of such Tax audit or proceeding may
have an adverse effect on the Company, SEACOR or its affiliates
<PAGE>
for any taxable period including or ending after the Closing
Date, then the Stockholders may not agree to a settlement or
compromise thereof without SEACOR's consent, which written
consent will not be unreasonably withheld.
(e) The Stockholders and SEACOR agree to treat any
indemnity payment made pursuant to this Agreement as an
adjustment to the Total Exchanged Shares for federal, state,
local and foreign income tax purposes. If, notwithstanding such
treatment by the parties, any indemnity payment is determined to
be taxable to SEACOR, the Company or its Affiliates by any taxing
authority, the Stockholders shall indemnify SEACOR and its
Affiliates for any Taxes payable by reason of the receipt of such
indemnity payment (including any payments under this Section
3(e).
4. Liability Limits.
----------------
(a) Neither the Stockholders, on the one hand, nor
SEACOR on the other, shall have any liability for Losses in
respect of claims for indemnification under Section 2 hereof
until the aggregate amount of such Losses exceeds the greater
of $200,000 or 1% of the Total Exchanged Shares (the
"Threshold"), in which event the applicable Indemnifying Party or
Parties shall, subject to the other provisions of this Section 4,
be liable for the total amount of such Losses (including Losses
below the Threshold).
(b) The aggregate liability of any Stockholder for
Losses pursuant to this Agreement shall not exceed the following:
(i) in the absence of fraud, with respect to any
claim for indemnity pursuant to (A) Section
2(a)(i) hereof, (B) Section 2(a)(ii)(A) hereof for
any breach of any representation or warranty made
by the Stockholders in the first sentence of
Section 4.11(a) of the Exchange Agreement, in the
second sentence of Section 4.13(a) of the Exchange
Agreement, in Section 4.13(d)(i) of the Exchange
Agreement or in Section 4.18 of the Exchange
Agreement or (C) pursuant to Section 2(a)(ii)(B)
or 2(a)(ii)(C) hereof, an amount equal to the
value of the total consideration paid to such
Stockholder pursuant to the Transaction
Agreements; and
(ii) with respect to any other claim for indemnity
hereunder, an amount equal to 30% of the value of
the total consideration paid to such Stockholder
pursuant to the Transaction Agreements;
<PAGE>
provided, however, that, in the absence of fraud, (1) in no event
-------- -------
shall the liability of any Stockholder under the Indemnification
Agreements exceed, in the aggregate, the value of the total
consideration paid to such Stockholder pursuant to the
Transaction Agreements and (2) in no event shall the liability of
any Stockholder under the Indemnification Agreements in respect
of matters for which liability, by the terms of such agreements,
is limited to an amount equal to 30% of the total consideration
paid such Stockholder pursuant to the Transaction Agreements
exceed, in the aggregate, an amount equal to 30% of such total
consideration.
(c) The aggregate liability of SEACOR for Losses
pursuant to this Agreement shall not exceed the following:
(i) with respect to any claim for indemnity
pursuant to (A) Section 2(b)(i) hereof for any
breach of any representation or warranty made by
SEACOR pursuant to Section 5.10 of the Exchange
Agreement, or (B) Section 2(b)(ii) or 2(b)(iii)
hereof, an amount equal to the Total Exchanged
Shares; and
(ii) with respect to any other claim for indemnity
hereunder, an amount equal to 30% of the Total
Exchanged Shares;
provided, however, that, in the absence of fraud, (1) in no event
-------- -------
shall the liability of SEACOR under the Indemnification
Agreements exceed, in the aggregate, the value of the total
consideration paid by SEACOR or its Affiliates pursuant to the
Transaction Agreements or (2) in no event shall the liability of
SEACOR under the Indemnification Agreements in respect of matters
for which liability, by the terms of such agreements, is limited
to an amount equal to 30% of the total consideration paid by
SEACOR or its Affiliates pursuant to the Transactions Agreements
exceed, in the aggregate, 30% of such total consideration.
5. Claim Periods. The term "Claims Period" shall mean the
-------------
following:
(a) With respect to any claim for indemnity under
Section 2(a)(i) hereof, 2(a)(ii)(A) hereof for any breach of any
representation or warranty made by the Stockholders pursuant to
Section 4.18 of the Exchange Agreement or a breach of Section 3
hereof, sixty (60) days following the expiration of the
applicable Tax statute of limitations with respect to the
relevant taxable period (including extensions);
(b) With respect to any claim for indemnity (i)
pursuant to Section 2(a)(ii)(A) hereof for any breach of any
representation or warranty made by the Stockholders pursuant to
<PAGE>
(i) the first sentence of Section 4.11(a) of the Exchange
Agreement, Section 4.13 of the Exchange Agreement or (ii)
pursuant to Section 2(a)(ii)(B) or 2(a)(ii)(C) hereof, the period
of time commencing as of the date hereof and continuing for an
unlimited period of time thereafter;
(c) with respect to any other claim for indemnity
against the Stockholders hereunder, the period of time commencing
on the date hereof and expiring on the second anniversary of the
Closing Date;
(d) With respect to any claim for indemnity pursuant
to Section 2(b)(i) hereof for any breach of any representation or
warranty made by SEACOR pursuant to Section 5.10 of the Exchange
Agreement or pursuant to Section 2(b)(ii) or 2(b)(iii) hereof,
the period of time commencing as of the date hereof continuing
for an unlimited period of time hereafter; and
(e) With respect to any other claim for indemnity
against SEACOR hereunder, the period of time commencing as of the
date hereof and expiring on the second anniversary of the Closing
Date.
6. [Intentionally Omitted]
7. Jurisdiction and Forum; Arbitration. Any controversy
-----------------------------------
arising under, out of, in connection with, or relating to, this
Agreement, and any amendment hereof, or the breach hereof or
thereof, shall be determined and settled by arbitration in New
York, New York, by an arbitrator or arbitrators mutually agreed
upon by SEACOR and the Representative or, if SEACOR and the
Representative shall fail or be unable to so agree within ten
Business Days after the written request therefor by SEACOR or the
Representative to the other, such arbitrator or arbitrators as
may be selected in accordance with the rules of the American
Arbitration Association. Any award rendered therein shall
specify the findings of fact of the arbitrator or arbitrators and
the reasons for such award, with reference to and reliance on
relevant law. Any such award shall be final and binding on each
and all of the parties thereto and their personal representa-
tives, and judgment may be entered thereon in any court having
jurisdiction thereof.
8. Representations and Warranties of the Representative,
-----------------------------------------------------
the Stockholders and SEACOR.
---------------------------
(a) The Representative hereby represents and warrants
to each other party hereto that:
(i) this Agreement has been duly authorized,
executed and delivered by it and constitutes the legal,
valid and binding agreement of it, enforceable against it in
<PAGE>
accordance with its terms, except as enforceability may be
limited by bankruptcy, insolvency, reorganization, or other
laws affecting creditors' rights and remedies generally and
by general principles of equity (regardless of whether such
enforceability is considered in a proceeding in equity or at
law); and
(ii) the execution, delivery and performance of
this Agreement and the consummation of the transactions
contemplated by this Agreement will not violate or conflict
with, constitute a breach of or default under, result in the
loss of any material benefit under, or permit the accelera-
tion of or entitle any party to accelerate any obligation
under or pursuant to, any material mortgage, lien, lease,
agreement, instrument, order, arbitration award, judgment or
decree to which it is a party or by which it or any of its
assets are bound.
(b) Each Stockholder hereby represents and warrants to
each other party hereto that:
(i) this Agreement has been duly authorized,
executed and delivered by such Stockholder and constitutes
the legal, valid and binding agreement of such Stockholder,
enforceable against such Stockholder in accordance with its
terms, except as enforceability may be limited by bank-
ruptcy, insolvency, reorganization, or other laws affecting
creditors' rights and remedies generally and by general
principles of equity (regardless of whether such enforce-
ability is considered in a proceeding in equity or at law);
and
(ii) the execution, delivery and performance of
this Agreement and the consummation of the transactions
contemplated by this Agreement will not violate or conflict
with, constitute a breach of or default under, result in the
loss of any material benefit under, or permit the accelera-
tion of or entitle any party to accelerate any obligation
under or pursuant to, any material mortgage, lien, lease,
agreement, instrument, order, arbitration award, judgment or
decree to which such Stockholder is a party or by which it
or any of its assets are bound.
(c) SEACOR hereby represents and warrants to each
other party hereto that:
(i) this Agreement has been duly authorized,
executed and delivered by it and constitutes the legal,
valid and binding agreement of it, enforceable against it in
accordance with its terms, except as enforceability may be
limited by bankruptcy, insolvency, reorganization, or other
laws affecting creditors' rights and remedies generally and
<PAGE>
by general principles of equity (regardless of whether such
enforceability is considered in a proceeding in equity or at
law); and
(ii) the execution, delivery and performance of
this Agreement and the consummation of the transactions
contemplated by this Agreement will not violate or conflict
with, constitute a breach of or default under, result in the
loss of any material benefit under, or permit the accelera-
tion of or entitle any party to accelerate any obligation
under or pursuant to, any material mortgage, lien, lease,
agreement, instrument, order, arbitration award, judgment or
decree to which it is a party or by which it or any of its
assets are bound.
9. Representative.
--------------
(a) Each of the Stockholders hereby constitutes and
appoints the Representative to act as the Representative under
this Agreement and the Exchange Agreement as and to the extent
provided herein and therein. Each of the Stockholders agrees to
indemnify and hold harmless the Representative by reason of its
acting or failing to act in connection with any of the
transactions contemplated hereby and against any loss, liability
or expense the Representative may sustain or incur as a result of
serving as Representative hereunder, except such losses,
liabilities and expenses which are determined in an arbitration
proceeding to have resulted primarily from the gross negligence
or willful misconduct of the Representative. Each of the
Stockholders agrees that the Representative shall have no
liability whatsoever to any Indemnified Party, any Stockholder or
such Indemnified Party's or Stockholder's beneficiaries, heirs or
personal representatives for any matters arising out of this
Agreement except, in the case of the Stockholders, for liability
for such matters which are determined in an arbitration
proceeding to have resulted primarily from the gross negligence
or willful misconduct of the Representative. Each of the
Stockholders hereby agrees to reimburse the Representative upon
the request of the Representative for all reasonable expenses,
disbursements and advances incurred or made by the Representative
in the performance of its duties under this Agreement. The
Representative shall have the authority to act on behalf of and
to bind the Stockholders, in accordance with their proportionate
interests as set forth on Exhibit A, for purposes of the
provisions of this Agreement to the extent set forth in this
Agreement. In no event shall the Representative be liable to any
Indemnified Party for any Stockholder's obligations under this
Agreement or the collection of any claim against any Stockholder.
(b) The initial Representative hereunder shall be
Norman McCall. In the event that Norman McCall, for any reason,
shall fail or be unable to continue to serve as Representative,
<PAGE>
whether by reason of his death, incapacity, resignation or
otherwise, Alan McCall shall serve as successor Representative,
or in the event that Alan McCall, for any reason, shall fail or
be unable to serve as successor Representative, whether by reason
of his death, incapacity, resignation or otherwise, then the
successor Representative shall be elected by holders of a
majority of the interests reflected on Exhibit A hereto. The
rights, powers, privileges and obligations of the Representative
named hereunder shall be possessed by any successor
Representative with the same effect as though such successor had
originally been a party to this Agreement. The word
"Representative" as used in this Agreement means the
Representative or any representative acting hereunder.
10. Notices. All notices, communications and deliveries
-------
required or permitted by this Agreement shall be made in writing
signed by the party making the same, shall specify the Section of
this Agreement pursuant to which it is given or being made, and
shall be deemed given or made (i) on the date delivered if
delivered by telecopy or in person, (ii) on the third business
day after it is mailed if mailed by registered or certified mail
(return receipt requested) (with postage and other fees prepaid),
or (iii) on the day after it is delivered, prepaid, to an
overnight express delivery service that confirms to the sender
delivery on such day, as follows:
To SEACOR:
SEACOR Holdings, Inc.
1370 Avenue of the Americas
25th Floor
New York, New York 10019
Attn: Randall Blank
Telecopy No.: (212) 582-8522
with a copy to:
Weil, Gotshal & Manges LLP
767 Fifth Avenue
New York, New York 10153
Attn: David E. Zeltner, Esq.
Telecopy No.: (212) 310-8007
To Stockholders and the Representative:
c/o McCall's Boat Rentals, Inc.
432 Marshall Street
Cameron, Louisiana 70631
Attn: Norman McCall
Telecopy No.: (318) 775-7025
<PAGE>
with a copy to:
Stockwell, Sievert, Viccellio,
Clements & Shaddock
P.O. Box 2900
Lake Charles, Louisiana 70602
Attn: William E. Shaddock, Esq.
Telecopy No.: (318) 493-7210
with an additional copy to:
Jones, Walker, Waechter, Poitevent,
Carrere & Denegre, L.L.P.
Place St. Charles
201 St. Charles Avenue
New Orleans, Louisiana 70170-5100
Attn: Carl C. Hanemann, Esq.
Telecopy No.: (504) 582-8398
or to such other representative or at such other address of a
party as such party hereto may furnish to the other Parties in
writing. If notice is given pursuant to this Section 10 of any
assignment to a permitted successor or assign of a party hereto,
the notice shall be given as set forth above to such successor or
assign of such party.
11. Time of the Essence; Computation of Time. Time is of
----------------------------------------
the essence for each and every provision of this Agreement.
Whenever the last day for the exercise of any privilege or the
discharge of any duty under this Agreement shall fall upon a
Saturday, Sunday or any date on which banks in New Orleans,
Louisiana or New York, New York are closed, the party having such
privilege or duty may exercise such privilege or discharge such
duty on the next succeeding day which is a regular business day.
12. Successors in Interest. This Agreement shall be
----------------------
binding upon and shall inure to the benefit of the Parties and
their permitted successors and assigns, and any reference to a
party shall also be a reference to a permitted successor or
assign.
13. Number; Gender. Whenever the context so requires, the
--------------
singular number shall include the plural and the plural shall
include the singular, and the gender of any pronoun shall include
the other genders.
14. Captions. The titles and captions contained in this
--------
Agreement are inserted in this Agreement only as a matter of
convenience and for reference and in no way define, limit, extend
or describe the scope of this Agreement or the intent of any
provision of this Agreement. Unless otherwise specified to the
<PAGE>
contrary, all references to Sections are references to Sections
of this Agreement.
15. Amendments. To the extent permitted by law, this
----------
Agreement may be amended by a subsequent writing signed by all of
the Parties (other than the Stockholders) and Stockholders having
an aggregate proportionate interest, as reflected on Exhibit A
hereto at least equal to 80%.
16. Controlling Law; Integration; Waiver. This Agreement
------------------------------------
shall be governed by and construed and enforced in accordance
with the laws of the State of New York, without giving effect to
the principles thereof relating to the conflict or choice of
laws. This Agreement supersedes all negotiations, agreements
and understandings among the parties with respect to the subject
matter of this Agreement and constitutes the entire agreement
among the parties to this Agreement with respect to such subject
matter. The failure of any party at any time or times to require
performance of any provisions of this Agreement shall in no
manner affect the right to enforce the same. No waiver by any
party of any conditions, or of the breach of any term, provision,
warranty, representation, agreement or covenant contained in this
Agreement, whether by conduct or otherwise, in any one or more
instances shall be deemed or construed as a further or continuing
waiver of any such condition or breach of any other term,
provision, warranty, representation, agreement or covenant
contained in this Agreement.
17. Exclusive Remedy. The Parties agree that, from and
----------------
after the Closing Date, the rights and remedies of any party
under this Agreement shall be the sole and exclusive remedy of
the parties for Losses arising out of any breach of this
Agreement, the Exchange Agreement, the Registration Rights
Agreement or any of the transactions contemplated herein or
therein.
18. Severability. Any provision of this Agreement which is
------------
prohibited or unenforceable in any jurisdiction will, as to such
jurisdiction, be ineffective to the extent of such prohibition or
unenforceability without invalidating the remaining provisions of
this Agreement, and any such prohibition or unenforceability in
any jurisdiction will not invalidate or render unenforceable such
provision in any other jurisdiction. To the extent permitted by
law, the Parties waive any provision of law which renders any
such provision prohibited or unenforceable in any respect.
<PAGE>
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be executed as of the date first above written.
SEACOR HOLDINGS, INC.
---------------------
By: /s/ Milton Rose
---------------------------------
Name: Milton Rose
Title: Vice-President
STOCKHOLDERS
------------
/s/ Deanne Colligan and Madeline Colligan
-----------------------------------------
Deanne Colligan and Madeline Colligan,
Trustees of the HAM Trust created by Norman
F. McCall and Jacqueline C. McCall by Act
dated December 9, 1980 before Gregory James
Klumpp, notary.
/s/ Deanne Colligan and Madeline Colligan
-----------------------------------------
Deanne Colligan and Madeline Colligan,
Trustees of the PDM Trust created by Norman
F. McCall and Jacqueline C. McCall by Act
dated December 9, 1980 before Gregory James
Klumpp, notary.
/s/ Deanne Colligan and Madeline Colligan
-----------------------------------------
Deanne Colligan and Madeline Colligan,
Trustees of the JKM Trust created by Norman
F. McCall and Jacqueline C. McCall by Act
dated December 9, 1980 before Gregory James
Klumpp, notary.
/s/ Gertrude Colligan
----------------------------------------
Gertrude Colligan, Individually and as
Usufructuary
/s/ James A. Colligan
----------------------------------------
James A. Colligan
<PAGE>
/s/ Nell Colligan
----------------------------------------
Nell Colligan
/s/ Madeline Colligan
----------------------------------------
Madeline Colligan
/s/ Deanne Colligan
----------------------------------------
Deanne Colligan
EXHIBIT 10.8
INVESTMENT AND REGISTRATION RIGHTS AGREEMENT
INVESTMENT AND REGISTRATION RIGHTS AGREEMENT, dated May 31,
1996 (this "Agreement"), among SEACOR Holdings, Inc., a Delaware
corporation (the "Company"), and the persons listed on the
signature pages hereof (collectively, the "Holders" and each, a
"Holder").
W I T N E S S E T H :
-------------------
WHEREAS, pursuant to the acquisition transactions (the
"Transactions") contemplated by certain agreements of even date
herewith, the Company is acquiring, directly or indirectly, all
of the equity interests in the "Companies" as defined in that
certain Agreement and Plan of Merger of even date herewith, among
the Company, McCall Enterprises, Inc., a Louisiana corporation
("McCall"), and SEACOR Enterprises, Inc., a Louisiana corporation
and wholly owned subsidiary of the Company (the "McCall Merger
Agreement"); and
WHEREAS, pursuant to the Transactions, each Holder shall
receive the number of shares (the "Shares") of Common Stock (as
hereinafter defined) set forth opposite his, her or its name, as
applicable, on Annex I hereto;
WHEREAS, the Shares will be issued and sold to the Holders
pursuant to the Transactions without registration under the
Securities Act in reliance on an applicable exemption from such
registration, and the Company and the Holders desire to provide
for the registration of the resale by the Holders of Registrable
Securities (as hereinafter defined) from time to time, upon the
terms and subject to conditions set forth below; and
WHEREAS, it is intended by the Company and the Holders that
this Agreement shall become effective immediately upon the
issuance and sale to the Holders of Shares pursuant to the
Transactions.
NOW, THEREFORE, in consideration of the foregoing and the
mutual covenants herein contained, the parties hereto, intending
to be legally bound, hereby agree as follows:
Section 1. Certain Other Definitions. All capitalized
-------------------------
terms used but not defined in this Agreement have the respective
meanings ascribed to such terms in the McCall Merger Agreement.
As used in this Agreement, the following capitalized terms (in
<PAGE>
their singular and plural forms, as applicable) have the
following meanings:
"Business Day" means any day on which commercial banks
------------
are open for business in the City of New York, Borough of
Manhattan.
"Commission" means the United States Securities and
----------
Exchange Commission and any successor United States federal
agency or governmental authority having similar powers.
"Common Stock" means the common stock, $0.01 par value,
------------
of the Company.
"Exchange Act" means the Securities Exchange Act of
------------
1934, as amended, and the rules and regulations of the Commission
thereunder.
The terms "register," "registered" and "registration"
-------- ---------- ------------
means a registration effected by preparing and filing with the
Commission a registration statement on an appropriate form in
compliance with the Securities Act, and the declaration or order
of the Commission of the effectiveness of such registration
statement under the Securities Act.
"Registrable Securities" means the Shares issued to the
----------------------
Holders pursuant to the Transactions and any other securities
issued by the Company after the closing of the Transactions in
respect of the Shares (and in respect of the Common Stock
generally) by means of exchange, reclassification, dividend,
distribution, split up, combination, subdivision,
recapitalization, merger, spin-off, reorganization or otherwise;
provided, however, that as to any Registrable Securities, such
-------- -------
securities shall cease to constitute the same for purposes of
this Agreement if and when (i) a registration statement with
respect to the sale of such securities shall have been declared
effective by the Commission and such securities shall have been
sold pursuant thereto in accordance with the intended plan and
method of distribution therefor set forth in the final prospectus
forming part of such registration statement; (ii) such securities
shall have been sold in satisfaction of all applicable resale
provisions of Rule 144 under the Securities Act; (iii) as
expressed in an opinion of independent counsel delivered and
satisfactory to the Company and the transfer agent for the Common
Stock, such securities no longer constitute "restricted
securities" within the meaning of Rule 144 under the Securities
Act and the transfer of such securities neither requires
registration under the Securities Act nor qualification under any
<PAGE>
state securities or "blue sky" law then in effect, or the use of
an applicable exemption therefrom; or (iv) such securities cease
to be issued and outstanding for any reason.
"Registration Expenses" means all expenses incurred by
---------------------
the Company in complying with Section 4 hereof, including,
without limitation, all registration and filing fees (including
fees and expenses associated with filings required to be made
with the National Association of Securities Dealers, Inc. and any
national securities exchange or U.S. automated inter-dealer
quotation system of a registered national securities association
on which the Common Stock is listed or otherwise admitted to
unlisted trading privileges), printing expenses, if any
(including expenses of printing certificates for the Common Stock
being registered in a form eligible for deposit with The
Depository Trust Company and of printing registration statements
and prospectuses), fees and disbursements of counsel for the
Company, fees and expenses of compliance with state securities or
"blue sky" laws (including reasonable fees and expenses of one
firm of counsel for underwriters, if any, in connection with
"blue sky" qualifications of the Registrable Securities being
registered and the determination of eligibility for investment
under the laws of such jurisdictions designated by the
underwriters, if any), accountants' fees and expenses (including
the expenses of any special audits or "comfort" letters incident
to or required by any such registration), transfer taxes, fees of
transfer agents and registrars, and fees and disbursements of
underwriters customarily paid by issuers or sellers of
securities, but excluding underwriting discounts and commissions
and broker-dealer concessions and allowances and marketing
expenses.
"Securities Act" means the Securities Act of 1933, as
--------------
amended, and the rules and regulations of the Commission
thereunder.
"Significant Subsidiary" has the meaning ascribed to
----------------------
such term in Rule 1-02(w) of Regulation S-X under the Securities
Act and the Exchange Act.
"Underwritten Offering" means a registration under the
---------------------
Securities Act pursuant to which securities of the Company are
sold to an underwriter for reoffering and distribution to the
public.
Section 2. Representations and Warranties of Holders. Each
-----------------------------------------
Holder severally (and not jointly) hereby represents,
acknowledges, covenants and agrees as follows: (i) the Shares
<PAGE>
are being acquired for such Holder's own account for investment
purposes only and not with a view to any public resale, public
distribution or public offering thereof within the meaning of the
Securities Act or any state securities or "blue sky" law; (ii) to
the knowledge of such Holder, the Shares have not been registered
under the Securities Act or any state securities or "blue sky"
law; (iii) such Holder either is an "accredited investor" within
the meaning of Rule 501 of Regulation D under the Securities Act,
or alone or together with such Holder's purchaser representative,
has such knowledge and experience in financial and business
matters that such Holder is capable of evaluating the relative
merits and risks of the prospective investment in the Shares and
able to bear the economic consequences thereof; (iv) such Holder
will not offer for sale, sell or otherwise transfer any of the
Shares (or any interest therein) except upon the terms and
subject to the conditions specified herein, and otherwise not in
violation of the Securities Act, provided that such Holder, prior
to effecting any transfer of Shares permitted hereunder, will
cause the intended transferee of the Shares to agree to take and
hold such Shares subject to the terms and conditions of this
Agreement (and, in that connection, to execute and deliver to the
Company such agreements and instruments as the Company reasonably
may request to evidence the same), and further acknowledges that
the certificates evidencing such Shares are required to have
endorsed thereon a legend to the effect set forth in Section 3(a)
hereof; (v) in making such Holder's decision to invest in the
Registrable Securities, such Holder has relied upon independent
investigations made by such Holder and, to the extent believed by
him or it to be appropriate, has relied on investigations made by
such Holder's representatives, including such Holder's own legal,
accounting, investment, financial, tax and other professional
advisors; (vi) such Holder has been afforded an opportunity to
review and has reviewed all of the Company's reports filed by the
Company under the Exchange Act since January 1, 1994 (the "Public
Filings"); and (vii) such Holder and such Holder's purchaser
representatives, as applicable, have been given the opportunity
to examine all documents, including the Public Filings, and to
ask questions of, and to receive answers from, the Company and
its representatives concerning the terms of the Merger Agreement
and such Holder's investment in the Shares.
Section 3. Restrictions on Transfer.
------------------------
(a) Legend. Each certificate representing the Shares
------
shall have endorsed thereon a legend in substantially the
following form:
<PAGE>
"THE SHARES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR
ANY STATE SECURITIES LAW, AND MAY NOT BE TRANSFERRED, SOLD
OR OTHERWISE DISPOSED OF IN THE ABSENCE OF SUCH REGISTRATION
UNLESS PURSUANT TO AN AVAILABLE EXEMPTION THEREFROM. IN ALL
CASES, SUCH SHARES MAY BE TRANSFERRED ONLY IN COMPLIANCE
WITH THE CONDITIONS SPECIFIED IN THE INVESTMENT AND
REGISTRATION RIGHTS AGREEMENT DATED MAY 30, 1996, AMONG THE
COMPANY AND THE STOCKHOLDERS PARTY THERETO, A COPY OF WHICH
IS AVAILABLE FOR INSPECTION AT THE PRINCIPAL EXECUTIVE
OFFICES OF THE COMPANY AND WILL BE FURNISHED TO THE HOLDER
HEREOF WITHOUT CHARGE, UPON WRITTEN REQUEST TO SEACOR
HOLDINGS, INC., 11200 WESTHEIMER, SUITE 850, HOUSTON, TEXAS
77042, ATTENTION: SECRETARY."
---------
(b) Additional Restrictions. Each Holder further
-----------------------
represents, acknowledges, covenants and agrees with the Company
that such Holder will not sell, transfer or otherwise dispose of
any Securities received in the Merger or any other shares of
Common Stock until after such time as results covering at least
30 days of combined operations of McCall and the Company have
been published by the Company, in the form of a quarterly
earnings report, an effective registration statement filed with
the Commission, an annual, quarterly or current report to the
Commission on Form 10-Q, Form 10-K or Form 8-K, as the case may
be, or any other public filing or announcement by the Company
which includes such combined results of operations. In addition,
each Holder further represents, acknowledges, covenants and
agrees that it is generally aware of the requirements for
accounting for the Transactions as a "pooling-of-interests" and
such Holder has not taken, and from the date of this Agreement
shall not take, any action, or fail to take any action, with the
intention of jeopardizing, or known to such Holder to be
reasonably likely to jeopardize, the accounting for the
Transactions as a "pooling-of-interests".
Section 4. Registration under Securities Act, etc.
---------------------------------------
(a) Shelf-Registration. (i) General. The Company
------------------ -------
shall prepare and file with the Commission as soon as practicable
after the issuance to the Holders of the Shares pursuant to the
Transactions, a registration statement on Form S-3 (or on another
appropriate form under the Securities Act then available for use
by the Company in connection with a secondary offering of the
Registrable Securities pursuant to Rule 415 under the Act)
relating to the resale, from time to time, of the Registrable
Securities by the Holders in accordance with the plan and method
of distribution set forth in the prospectus forming part of such
<PAGE>
registration statement (a "Shelf Registration Statement"), and
shall use its reasonable best efforts to cause the Shelf
Registration Statement to be declared effective by the Commission
as soon as reasonably practicable thereafter. It is understood
and agreed that the Shelf Registration Statement may have
included therein shares of Common Stock offered for sale, from
time to time, by holders of Common Stock other than the Holders
and also may relate to a primary offering of Common Stock by the
Company.
(ii) Effective Period. The Company agrees to use
----------------
its best efforts to keep the Shelf Registration Statement
continuously effective until the first to occur of the second
anniversary of the date on which such Shelf Registration
Statement was first declared effective by the Commission (subject
to Suspension Periods (defined below) and extensions coincident
with the length of such Suspension Periods) or the date on which
all their Registrable Securities covered by the Shelf
Registration Statement have been sold thereunder in accordance
with the plan and method of distribution intended by each Holder
and as disclosed in the prospectus forming part of the Shelf
Registration Statement (the "Effective Period"). For purposes
hereof, "Suspension Period" shall mean a period of time
commencing on the date on which the Company provides notice that
the Shelf Registration Statement is no longer effective, that the
prospectus included in the Shelf Registration Statement no longer
complies with the requirements therefor prescribed by Section
10(a) of the Securities Act, or that the Company in its
reasonable, good faith judgment, for valid business purposes
(including, without limitation, in connection with a proposed or
pending issuance or sale of the Company's debt or equity
securities by the Company or any other Person or a proposed or
pending merger, reorganization, consolidation, recapitalization,
public offering, sale of assets or other extraordinary corporate
transaction, whether or not publicly announced, involving the
Company or any of its Significant Subsidiaries) has elected to
require the suspension of the sale by Holders of their
Registrable Securities pursuant to the Shelf Registration
Statement, and shall end on the date when each Holder of
Registrable Securities either receives copies of the supplemented
or amended prospectus contemplated by Section 4(b)(v) plus an
additional five Business Days or otherwise is advised in writing
by the Company that use of the prospectus may be resumed. Each
Holder agrees that it will not sell any Registrable Securities
pursuant to the Shelf Registration Statement during any
Suspension Period and the Company agrees to cause each Suspension
Period to end as soon as reasonably practicable. The Company
agrees that no other similarly situated holder of the Company's
<PAGE>
Common Stock will be permitted to sell Shares of the Company's
Common Stock pursuant to a shelf registration statement during a
Suspension Period. If one or more Suspension Periods occur, the
Effective Period shall be extended by such number of days
coincident with the aggregate number of days included in all
Suspension Periods.
(b) Registration Procedures. The Company shall:
-----------------------
(i) cause any registration statement filed
pursuant to Section 4 hereof and the related prospectus and any
amendment or supplement thereto, as of the effective date of such
registration statement, amendment or supplement, (A) to comply in
all material respects with the applicable requirements of the
Securities Act and the rules and regulations of the Commission
promulgated thereunder and (B) not to contain any untrue
statement of a material fact or omit to state a material fact
required to be stated therein or necessary to make the statements
therein, in light of the circumstances under which they were
made, not misleading;
(ii) prepare and file with the Commission such
amendments and supplements to such registration statement and the
prospectus used in connection with such registration statement as
may be necessary to keep such registration statement effective
and to comply with the provisions of the Securities Act with
respect to the disposition of all Registrable Securities covered
by such registration statement until the earlier of such time as
all such Registrable Securities have been disposed of in
accordance with the intended plan and method of disposition by
each Holder of such Registrable Securities or for the period
ending on the second anniversary of the date on which such Shelf
Registration Statement was first declared effective (subject to
Suspension Periods and extensions coincident with the length of
such suspensions); and will furnish to each Holder a copy of any
amendment or supplement to such registration statement or
prospectus prior to filing the same with the Commission and shall
not file any such amendment or supplement to which any such
requesting Holder shall reasonably have objected to in writing on
the grounds that such amendment or supplement does not comply in
all material respects with the requirements of the Securities Act
or of the rules or regulations thereunder or otherwise
inaccurately describes information pertaining to such Holder;
(iii) furnish to each requesting Holder such
number of conformed copies of such registration statement and of
each such amendment and supplement thereto (in each case includ-
ing all exhibits thereto), such number of copies of the
<PAGE>
prospectus included in such registration statement (including
each preliminary prospectus), such number of the documents, if
any, incorporated by reference in such registration statement or
prospectus, and such number of other documents, as such
requesting Holder reasonably may request;
(iv) use its best efforts to register or qualify
the Registrable Securities covered by such registration statement
under such securities or "blue sky" laws of the states of the
United States as each requesting Holder reasonably shall request,
to keep such registration or qualification in effect for so long
as such registration statement remains in effect, and to do any
and all other acts and things which may be necessary or advisable
to enable such requesting Holder to consummate the disposition in
such jurisdictions of his or its Registrable Securities covered
by such registration statement, except that the Company shall not
for any such purpose be required to qualify generally to do
business as a foreign corporation in any jurisdiction in which it
is not and would not, but for the requirements of this
Section 4(b)(iv), be obligated to be so qualified, or to subject
itself to taxation in any such jurisdiction, or to consent to
general service of process in any such jurisdiction;
(v) immediately notify each Holder, at any time
when a prospectus or prospectus supplement relating thereto is
required to be delivered under the Securities Act, upon discovery
that, or upon the occurrence of any event as a result of which,
the prospectus included in such registration statement, as then
in effect, includes an untrue statement of a material fact or
omits to state any material fact required to be stated therein or
necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading, which
untrue statement or omission requires amendment of the
registration statement or supplementing of the prospectus, and,
at the request of such requesting Holder, prepare and furnish to
such requesting Holder a reasonable number of copies of a
supplement to such prospectus as may be necessary so that, as
thereafter delivered to the purchasers of such Registrable
Securities, such prospectus shall not include an untrue statement
of a material fact or omit to state a material fact required to
be stated therein or necessary to make the statements therein, in
the light of the circumstances under which they were made, not
misleading; provided, however, that with respect to Registrable
-------- -------
Securities registered pursuant to such registration statement
each Holder agrees that such Holder will not sell any Registrable
Securities pursuant to such registration statement during the
time after the furnishing of the Company's notice that the
Company is preparing and filing with the Commission a supplement
<PAGE>
to or an amendment of such prospectus or registration statement
and such period shall be a Suspension Period for purposes of
determining the Effective Period hereunder;
(vi) use its best efforts to comply with all
applicable rules and regulations of the Commission, and make
available to holders of its securities, as soon as reasonably
practicable, an earnings statement covering the period of at
least 12 months, but not more than 18 months, beginning with the
first month of the first fiscal quarter after the effective date
of such registration statement, which earnings statement shall
satisfy the provisions of Section 11(a) of the Securities Act;
and
(vii) provide and cause to be maintained a
transfer agent and registrar for the Registrable Securities
covered by such registration statement from and after a date not
later than the effective date of such registration statement; it
being hereby agreed that each Holder of Registrable Securities
shall furnish to the Company such information regarding such
Holder and the plan and method of distribution of Registrable
Securities intended by such Holder as the Company may from time
to time reasonably request in writing and as shall be required by
law or by the Commission in connection therewith.
(c) Preparation; Reasonable Investigation. In
-------------------------------------
connection with the preparation and filing of each registration
statement registering Registrable Securities under the Securities
Act as contemplated by this Agreement, the Company shall give
each Holder, its underwriters, if any, and each Holder's counsel
and accountants, the opportunity to review the Company's
preparation of such registration statement, each prospectus
included in such registration statement or filed with the
Commission and each amendment or supplement thereto, and the
Company will give such person or persons such reasonable access
to the Company's books and records and such opportunities to
discuss the business of the Company with its officers and the
independent public accountants who have certified its financial
statements as shall be necessary for each such Holder and persons
to conduct a reasonable investigation within the meaning of
Section 11 of the Securities Act. To minimize disruption and
expense to the Company during the course of the registration
process, each Holder shall use its reasonable best efforts to
coordinate its investigation and due diligence efforts and, to
the extent practicable, will act through a single firm of counsel
and a single firm of accountants and, if requested by the
Company, will enter into confidentiality agreements with the
Company in a form satisfactory to the Company.
<PAGE>
(d) Indemnification. (i) Indemnification by the
--------------- ----------------------
Company. The Company shall indemnify and hold harmless each
-------
Holder of Registrable Securities covered by any registration
statement filed pursuant to this Agreement, and any underwriter
or selling agent selected by one or more Holders with the consent
of the Company with respect to such Registrable Securities, the
directors, trustees and officers, and each other person, if any,
who controls such Holder, underwriter or selling agent within the
meaning of Section 15 of the Securities Act and Section 20 of the
Exchange Act against any losses, claims, damages, liabilities or
expenses (each a "Loss" and collectively "Losses"), joint or
several, to which such Holder or any such persons may become
subject under the Securities Act or otherwise, to the extent that
such Losses (or related actions or proceedings) arise out of or
are based upon (A) any untrue statement or alleged untrue
statement of any material fact contained in an effective
registration statement in which such Registrable Securities were
included for registration under the Securities Act, any
preliminary prospectus if used prior to the effective date of the
registration statement (unless such statement is corrected in the
final prospectus and the Company previously furnishes copies
thereof to any Holder of Registrable Securities seeking
indemnification pursuant to this Section 4(d), final prospectus
(as supplemented, if the Company shall have filed with the
Commission any supplement thereto) if used during the period in
which the Company is required to keep the registration statement
to which such prospectus relates current and otherwise in
compliance with Section 10(a) of the Securities Act, or (B) any
omission or alleged omission to state therein a material fact
required to be stated therein or necessary to make the statements
therein, in light of the circumstances under which they were
made, not misleading; provided, however, that the Company shall
-------- -------
have no obligation to provide any indemnification hereunder if
any such Losses (or actions or proceedings in respect thereof)
arise out of or are based upon an untrue statement or alleged
untrue statement or omission or alleged omission made in such
registration statement, preliminary prospectus or final
prospectus, as the case may be, in reliance upon and in
conformity with written information furnished to the Company by
such Holder for inclusion in such registration statement; and
provided, further, that the Company shall have no obligation to
-------- -------
provide any indemnification hereunder if any such Losses arise
out of or are based upon an untrue statement or alleged untrue
statement or omission or alleged omission in the final
prospectus, if such untrue statement or alleged untrue statement
or omission or alleged omission shall have been corrected in a
supplement to the final prospectus and such Holder or any such
other person shall have failed to deliver such final prospectus
<PAGE>
as so supplemented prior to or concurrently with the sale of the
Registrable Securities covered by a registration statement to the
individual or entity asserting such Losses after the Company
shall have furnished each such Holder or any such other person
with a sufficient number of copies thereof in a manner and at a
time sufficient to permit delivery of the same. The indemnity
provided in this Section 4(d)(i) shall remain in full force and
effect regardless of any investigation made by or on behalf of
such Holder or any such other person and shall survive the
transfer of the Registrable Securities by such Holder or any such
other person.
(ii) Indemnification by the Holders. Each Holder
------------------------------
and each other person who controls such Holder within the meaning
of Section 15 of the Securities Act or Section 20 of the Exchange
Act, shall indemnify and hold harmless (in the same manner and to
the same extent as set forth in Section 4(f)(i) hereof) the
Company, each director of the Company, each officer of the
Company who shall sign such registration statement and each other
person, if any, who controls the Company within the meaning of
Section 15 of the Securities Act or Section 20 of the Exchange
Act, with respect to any untrue statement in or omission from any
registration statement filed by the Company pursuant to this
Agreement, any preliminary prospectus or any final prospectus
included in such registration statement, or any amendment or
supplement to such registration statement or prospectus, as the
case may be, of a material fact if such statement or omission was
made in reliance upon and in conformity with written information
furnished to the Company or any of its representatives by such
Holder or such other person, if any, who controls such Holder
within the meaning of Section 15 of the Securities Act or
Section 20 of the Exchange Act for inclusion in such registration
statement, preliminary prospectus or final prospectus, as the
case may be.
(iii) Notice of Claims, etc. Promptly after
----------------------
receipt by an indemnified party of notice of the commencement of
any action or proceeding (an "Action") involving a claim referred
to in Sections 4(d)(i) and 4(d)(ii) hereof, such indemnified
party shall, if indemnification is sought against an indemnifying
party, give written notice to the indemnifying party of the
commencement of such action; provided, however, that the failure
-------- -------
of any indemnified party to give said notice shall not relieve
the indemnifying party of its obligations under Sections 4(d)(i)
or 4(d)(ii) hereof, except to the extent that the indemnifying
party is actually and materially prejudiced by such failure. In
case an Action is brought against any indemnified party, and such
Action notifies an indemnifying party of the commencement there
<PAGE>
of, the indemnifying party shall be entitled to participate
therein and, to the extent it may elect by written notice
delivered to the indemnified party promptly after receiving the
aforesaid notice, to assume the defense thereof with counsel
reasonably satisfactory to such indemnified party. Notwithstand-
ing the foregoing, the indemnified party shall have the right to
employ its own counsel in any such case, but the fees and
expenses of such counsel shall be at the expense of such
indemnified party, unless (A) the employment of such counsel
shall have been authorized in writing by the indemnifying party,
(B) the indemnifying party shall not have employed counsel
(reasonably satisfactory to the indemnified party) to take charge
of the defense of such Action, within a reasonable time after
notice of the commencement thereof, or (C) such indemnified party
reasonably shall have concluded that there may be defenses avail-
able to it which are different from or additional to those
available to the indemnifying party which, if the indemnifying
party and the indemnified party were to be represented by the
same counsel, could result in a conflict of interest for such
counsel or materially prejudice the prosecution of the defenses
available to such indemnified party. If either of the events
specified in clauses (A), (B) or (C) of the preceding sentence
shall have occurred or otherwise shall be applicable, then the
fees and expenses of one counsel (or firm of counsel) selected by
a majority in interest of the indemnified parties (measured by
reference to their ownership of Registrable Securities) shall be
borne by the indemnifying party. If, in any case, the
indemnified party employs separate counsel, the indemnifying
party shall not have the right to direct the defense of such
action on behalf of the indemnified party. Anything in this
Section 4(d)(iii) to the contrary notwithstanding, an
indemnifying party shall not be liable for the settlement of any
action effected without its prior written consent (which consent
in the case of an action exclusively seeking monetary relief
shall not unreasonably be withheld or delayed) or if there be a
final judgment adverse to the indemnified party, the indemnifying
party agrees to indemnify the indemnified party from and against
any loss or liability by reason of such settlement or judgment.
No indemnifying party shall, without the prior consent of the
indemnified party, consent to entry of any judgment or enter into
any settlement which does not include as a term thereof the
unconditional release of the indemnified party from all liability
in respect of such claim or litigation.
(iv) Contribution. If the indemnification
------------
provided for in this Section 4 is unavailable or insufficient to
hold harmless an indemnified party in respect of any Losses, then
each indemnifying party shall, in lieu of indemnifying such
<PAGE>
indemnified party, contribute to the amount paid or payable by
such indemnified party, as a result of such Losses in such
proportion as appropriate to reflect the relative fault of the
Company, on the one hand, and the indemnified party, on the other
hand, and to the parties' relative intent, knowledge, access to
information and opportunity to correct or mitigate the damage in
respect of or prevent any untrue statement or omission giving
rise to such indemnification obligation. The Company and each
Holder agree that it would not be just and equitable if
contributions pursuant to this Section 4(d)(iv) were determined
by pro rata allocation or by any other method of allocation which
did not take account of the equitable considerations referred to
above. No person guilty of fraudulent misrepresentation (within
the meaning of Section 11(f) of the Securities Act) shall be
entitled to contribution from any person who is not guilty of
such fraudulent misrepresentation.
(v) Indemnification Payments. Periodic payments
------------------------
of amounts required to be paid pursuant to this Section 4 shall
be made during the course of the investigation or defense, as and
when reasonably itemized bills therefor are delivered to the
indemnifying party in respect of any particular Loss, damage or
liability that is incurred.
(vi) Limitation on Seller's Payments.
-------------------------------
Notwithstanding any provision of this Agreement to the contrary,
the liability of each Holder of Registrable Securities under this
Section 4(d) shall in no event exceed the net proceeds received
by such Holder from the sale of Registrable Securities covered by
the registration statement giving rise to such liability.
(vii) Adjustment of Liability. Any indemnifiable
-----------------------
Loss under this Section 4 shall be reduced by any tax benefit
accruing to the indemnified party on account of the
indemnification payment and by the amounts actually recovered by
the indemnified party from its insurance carriers in respect of
such Loss, and any amounts recovered by such party subsequent to
the payment by the indemnifying party hereunder with respect to
the same claim shall be remitted to such indemnifying party,
except that such remittance shall not exceed the amount of the
indemnification payment made by such indemnifying party.
(e) Registration Expenses. The Company shall bear all
---------------------
Registration Expenses incurred in connection with the performance
of its obligations under Section 4 of this Agreement.
Section 5. Rule 144. The Company shall comply with the
--------
requirements of Rule 144(c) under the Securities Act, as such
<PAGE>
Rule may be amended from time to time (or any similar rule or
regulation hereafter adopted by the Commission), regarding the
availability of current public information to the extent required
to enable each Holder to sell Registrable Securities without
registration under the Securities Act pursuant to the resale
provisions of Rule 144 (or any similar rule or regulation). Upon
the request of a Holder, the Company will deliver to such Holder
a written statement as to whether it has complied with such
requirements and, upon a Holder's compliance with the applicable
provisions of Rule 144, will take such action as may be required
(including, without limitation, causing legal counsel to issue an
appropriate opinion) to cause its transfer agent to effectuate
any transfer of Registrable Securities properly requested by such
Holder, in accordance with the terms and conditions of Rule 144.
SECTION 6. Use of Name. Each of the Stockholders hereby (a)
-----------
sells, transfers and assigns to SEACOR and its Affiliates all of
such Stockholder's rights, title and interest, if any, to use the
name "McCall" in connection with the operation of the businesses
of the Companies (as defined in the Merger Agreement) on the
Closing Date, and (b) agrees not to, and to cause such
Stockholder's Affiliates not to, use such name or any variation
or simulation thereof in any business involving offshore marine
transportation or any related business.
Section 7. Amendments and Waivers. This Agreement may be
----------------------
amended or modified and the Company may take any action herein
prohibited, or omit to perform any act herein required to be
performed by it, only if the Company shall have obtained the
written consent to such amendment, modification, action or
omission to act, of each Holder. Each Holder shall be bound by
any consent authorized by this Section 7, whether or not such
Registrable Securities shall have been marked to indicate such
consent.
Section 8. Notices. All notices, communications and
-------
deliveries required or permitted by this Agreement shall be made
in writing signed by the party making the same, shall specify the
Section of this Agreement pursuant to which it is given or being
made and shall be deemed given or made (i) on the date delivered
if delivered by telecopy or in person, (ii) on the third Business
Day after it is mailed if mailed by registered or certified mail
(return receipt requested) (with postage and other fees prepaid)
or (iii) on the day after it is delivered, prepaid, to an
overnight express delivery service that confirms to the sender
delivery on such day, as follows:
<PAGE>
(a) if to the Holders, c/o McCall's Boat Rentals,
Inc., 432 Marshall Street, Cameron, Louisiana 70631, Attn:
Norman McCall, Telecopy No.: (318) 775-7025; and
(b) if to the Company, at 1370 Avenue of the Americas,
New York, New York 10019, Attn: Mr. Randall Blank, Telecopy No.:
(212) 582-8522;
or to such other representative or at such other address of a
party as such party hereto may furnish to the other parties in
writing. If notice is given pursuant to this Section 8 of any
assignment to a permitted successor or assign of a party hereto,
the notice shall be given as set forth above to such successor or
assign of such party.
Section 9. Secretary to Retain Copy. A copy of this
------------------------
Agreement, including all Exhibits hereto, shall be filed with the
Secretary of the Company, and the Secretary shall make it
available to each Holder of Registrable Securities at all
reasonable times during normal business hours.
Section 10. Entire Agreement. This Agreement embodies the
----------------
entire agreement and understanding between the Company and each
Holder in respect of the subject matter contained herein. This
Agreement supersedes all prior agreements and understandings
between the parties with respect to the subject matter of this
Agreement.
Section 11. Governing Law. This Agreement shall be
-------------
governed by and construed in accordance with the internal laws of
the State of New York (other than its rules of conflicts of laws
to the extent the application of the laws of another jurisdiction
would be required thereby).
Section 12. Severability. If any provision of this
------------
Agreement or the application thereof to any person or circum-
stances is determined by a court of competent jurisdiction to be
invalid, void or unenforceable, the remaining provisions hereof,
or the application of such provision to persons or circumstances
other than those as to which it has been held invalid or
unenforceable, shall remain in full force and effect and shall in
no way be affected, impaired or invalidated thereby, so long as
the economic or legal substance of the transactions contemplated
hereby is not affected in any manner adverse to any party. Upon
such determination, the parties shall negotiate in good faith in
an effort to agree upon a suitable and equitable substitute
provision to effect the original intent of the parties.
<PAGE>
Section 13. Termination. The rights and obligations under
-----------
this Agreement shall automatically terminate upon the earlier to
occur of (a) the sale of all Registrable Securities by each
Holder and (b) the end of the Effective Period, as the same may
be extended pursuant to Sections 4(a)(ii) and 4(a)(iii) hereof.
Section 14. Miscellaneous. The Company shall not after the
-------------
date of this Agreement enter into any agreement with respect to
the Common Stock which violates the rights granted to each Holder
in this Agreement. The headings in this Agreement are for
purposes of reference only and shall not limit or otherwise
affect the meaning of this Agreement. This Agreement may be
executed in any number of counterparts, each of which shall be
deemed to be an original, but all of which, when taken together,
shall constitute one and the same instrument.
IN WITNESS WHEREOF, the parties have caused this
Agreement to be duly executed and delivered as of the date first
above written.
SEACOR HOLDINGS, INC.
By:/s/ Milton Rose
--------------------------------
Name: Milton Rose
Title: Vice-President
/s/ Norman F. McCall
---------------------------------------------
Norman F. McCall
/s/ Joyce C. McCall
---------------------------------------------
Joyce C. McCall
/s/ Deanne Colligan and Madeline Colligan
-----------------------------------------
Deanne Colligan and Madeline Colligan,
Trustees of the HAM Trust created by Norman
F. McCall and Jacqueline C. McCall by Act
dated December 9, 1980 before Gregory James
Klumpp, notary.
<PAGE>
/s/ Deanne Colligan and Madeline Colligan
-----------------------------------------
Deanne Colligan and Madeline Colligan,
Trustees of the PDM Trust created by Norman
F. McCall and Jacqueline C. McCall by Act
dated December 9, 1980 before Gregory James
Klumpp, notary.
/s/ Deanne Colligan and Madeline Colligan
-----------------------------------------
Deanne Colligan and Madeline Colligan,
Trustees of the JKM Trust created by Norman
F. McCall and Jacqueline C. McCall by Act
dated December 9, 1980 before Gregory James
Klumpp, notary.
/s/ Gertrude Colligan
---------------------------------------------
Gertrude Colligan, Individually and as
Usufructuary
/s/ James A. Colligan
---------------------------------------------
James A. Colligan
/s/ Nell Colligan
---------------------------------------------
Nell Colligan
/s/ Madeline Colligan
---------------------------------------------
Madeline Colligan
/s/ Deanne Colligan
---------------------------------------------
Deanne Colligan
/s/ H. Allan McCall
---------------------------------------------
H. Alan McCall
/s/ Phyllis McCall Johnston
---------------------------------------------
Phyllis McCall Johnston
/s/ Joseph K. McCall
---------------------------------------------
Joseph K. McCall
NYFS11...:\93\73293\0011\1711\AGR4236U.48K
