As filed with the Securities and Exchange Commission on May 19, 2000
Registration No. 333-
================================================================================
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
-----------------------------
FORM S-3
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
-----------------------------
SEACOR SMIT INC.
(Exact name of registrant as specified in its charter)
DELAWARE 13-3542736
(State or other jurisdiction of (I.R.S. employer
incorporation or organization) identification number)
11200 RICHMOND AVE., SUITE 400
HOUSTON, TEXAS 77082
(713) 782-5990
(Address, including zip code, and telephone number, including
area code, of registrant's principal executive offices)
-----------------------------
RANDALL BLANK
EXECUTIVE VICE PRESIDENT,
CHIEF FINANCIAL OFFICER AND SECRETARY
1370 AVENUE OF THE AMERICAS, 25TH FLOOR
NEW YORK, NEW YORK 10019
(212) 307-6633
(Name, address, including zip code, and telephone number,
including area code, of agent for service)
-----------------------------
COPY TO:
DAVID E. ZELTNER, ESQ.
WEIL, GOTSHAL & MANGES LLP
767 FIFTH AVENUE
NEW YORK, NEW YORK 10153
(212) 310-8000
-----------------------------
APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC: From time to
time after this Registration Statement becomes effective. If the only securities
being registered on this form are being offered pursuant to dividend or interest
reinvestment plans, please check the following box. |_|
If any of the securities being registered on this Form are to be offered on a
delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, check the following box. |X|
If this Form is filed to register additional securities for an offering pursuant
to Rule 462(b) under the Securities Act, please check the following box and list
the Securities Act registration statement number of the earliest effective
registration statement for the same offering. |_|
If this Form is a post-effective amendment filed pursuant to Rule 462(c) under
the Securities Act, check the following box and list the Securities Act
registration number of the earlier effective registration statement for the same
offering. |_|
If delivery of the Prospectus is expected to be made pursuant to Rule 434,
please check the following box. |_|
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
- ---------------------- -------------------- ----------------------- ----------------------------- --------------------------------
Title of Security Amount to be Offering Price Aggregate Offering
to be Registered Registered Per Share (1) Price (1) Registration Fee
- ---------------------- -------------------- ----------------------- ----------------------------- --------------------------------
<S> <C> <C> <C> <C>
Common Stock,
par value
$.01 per share 83,615 shares $62.656 $5,239,002 $1,384.00
- ---------------------- -------------------- ----------------------- ----------------------------- --------------------------------
</TABLE>
(1) Estimated solely for purposes of calculating the amount of the registration
fee. This estimate has been calculated in accordance with Rule 457 under the
Securities Act of 1933, based on the average of the high and low sales prices
per share reported on the New York Stock Exchange on May 12, 2000.
THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE OR DATES
AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT SHALL FILE
A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS REGISTRATION STATEMENT
SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(A) OF THE
SECURITIES ACT, OR UNTIL THE REGISTRATION STATEMENT SHALL BECOME EFFECTIVE ON
SUCH DATE AS THE COMMISSION, ACTING PURSUANT TO SAID SECTION 8(A), MAY
DETERMINE.
================================================================================
NY2:\905457\06\J#NL06!.DOC\73293.0004
<PAGE>
The information in this prospectus is not complete and may be changed. The
selling shareholders may not sell any shares of the common stock until our
registration statement filed with the Securities and Exchange Commission is
effective. This prospectus is not an offer to sell these securities in any state
where the offer or sale is not permitted.
Subject to completion, dated May 19, 2000
PROSPECTUS
SEACOR SMIT INC.
83,615 Shares
of
Common Stock
---------------------
o The selling shareholders named on page 8 are selling 83,615
shares of our common stock.
o Our common stock is listed on the New York Stock Exchange
under the symbol "CKH." On May 18, 2000, the last reported
sale price of the common stock was $65 per share.
INVESTING IN THESE SECURITIES INVOLVES RISKS. SEE "RISK FACTORS" BEGINNING ON
PAGE 1.
---------------
NEITHER THE SECURITIES AND EXCHANGE COMMISSION NOR ANY
STATE SECURITIES COMMISSION HAS APPROVED OR DISAPPROVED OF THESE SECURITIES OR
DETERMINED IF THIS PROSPECTUS IS ACCURATE OR COMPLETE. IT IS ILLEGAL FOR ANY
PERSON TO TELL YOU OTHERWISE.
---------------
The date of this prospectus is _______, 2000.
<PAGE>
TABLE OF CONTENTS
Page
About SEACOR SMIT Inc............................................ 1
Risk Factors..................................................... 1
Where You Can Find
More Information............................................... 6
Incorporation of Certain
Documents by Reference......................................... 6
Forward-Looking Statements....................................... 7
Use of Proceeds.................................................. 7
Selling Shareholders............................................. 7
Plan of Distribution............................................. 8
Legal Matters.................................................... 10
Experts.......................................................... 11
i
<PAGE>
ABOUT SEACOR SMIT INC.
We are a major provider of offshore marine services to the oil and
gas exploration and production industry. We are also one of the leading
providers of oil spill response services to owners of tank vessels and oil
storage, processing, and handling facilities, and own a majority equity interest
in companies that own and operate mobile offshore jackup drilling rigs.
Additional information regarding SEACOR, including our audited financial
statements and descriptions of our business, is contained in the documents
incorporated by reference in this prospectus. See "Where You Can Find More
Information" on page 6 and "Incorporation of Documents by Reference" on page 6.
Our executive offices are located at 11200 Richmond Ave, Suite 400,
Houston, Texas 77082 and our telephone number is (713) 782-5990.
RISK FACTORS
YOU SHOULD CONSIDER CAREFULLY THESE RISK FACTORS TOGETHER WITH ALL OF THE
INFORMATION INCLUDED OR INCORPORATED BY REFERENCE IN THIS PROSPECTUS BEFORE YOU
DECIDE TO PURCHASE SHARES OF OUR COMMON STOCK. THIS SECTION INCLUDES SOME
FORWARD-LOOKING STATEMENTS.
A SIGNIFICANT OR PROLONGED DECLINE IN OIL AND GAS PRICES WOULD LIKELY REDUCE THE
LEVEL OF EXPLORATION AND DEVELOPMENT OF OFFSHORE AREAS, WHICH WOULD RESULT IN A
LOWER DEMAND FOR OUR OFFSHORE MARINE SERVICES AND DRILLING RIGS.
Activity in the offshore oil and gas exploration and production
industry has a significant impact on our offshore vessel operations and the
operations of Chiles Offshore LLC, our 55% owned drilling rig subsidiary.
Factors that affect the level of exploration and development of offshore areas
include both short-term and long-term trends in oil and gas prices and local
policies that influence drilling activities. In recent years, oil and gas prices
have been extremely volatile and, as a result, the level of offshore exploration
and drilling activity also has been extremely volatile. Reductions in oil and
gas prices generally result in decreased drilling and production and
corresponding decreases in demand for our offshore vessel services and Chiles'
drilling rigs. Decreased demand for these services and drilling rigs would
reduce our revenue and profitability.
WE RELY ON SEVERAL CUSTOMERS FOR A SIGNIFICANT SHARE OF OUR REVENUES. THE LOSS
OF ANY OF THESE CUSTOMERS COULD ADVERSELY AFFECT OUR BUSINESS AND OPERATING
RESULTS.
Customers of our offshore marine services are primarily the major oil
companies and large independent oil and gas exploration and production
companies. The portion of our revenues attributable to any single customer
changes over time, depending on the level of relevant activity by the customer,
our ability to meet the customer's needs, and other factors, many of which are
beyond our control. During 1999, we received approximately 10% of our offshore
marine service operating revenues from Chevron Corporation. During 1999,
National Response Corporation, our oil spill response service subsidiary,
received approximately 25% of its environmental retainer revenue from Coastal
Refining and Marketing, Inc. and 13% from Citgo Petroleum Corporation, its two
largest customers.
1
<PAGE>
WE MAY INCUR SIGNIFICANT COSTS, LIABILITIES AND PENALTIES IN COMPLYING WITH
GOVERNMENT REGULATIONS.
Government regulation, such as international conventions, federal and
state laws and regulations in jurisdictions where our vessels operate or are
registered, have a significant impact on our offshore marine and environmental
response businesses. These regulations relate to worker health and safety, the
manning, construction and operation of vessels, oil spills and other aspects of
environmental protection. We believe that we are in material compliance with the
laws and regulations applicable to our operations.
Risks of incurring substantial compliance costs and liabilities and
penalties for non-compliance, particularly with respect to environmental laws
and regulations, are inherent in our business. If this happens, it could have a
substantial negative impact on our profitability and financial position. We
cannot predict whether we will incur such costs or penalties in the future.
WE FACE INTENSE COMPETITION, WHICH COULD ADVERSELY AFFECT OUR ABILITY TO
INCREASE OUR MARKET SHARE AND OUR REVENUES.
Our businesses operate in highly competitive industries. High levels
of competition could reduce our revenues, increase our expenses and reduce our
profitability.
In addition to price, service and reputation, important competitive
factors for offshore supply fleets include: customers' national flag preference,
operating conditions and intended use (all of which determine the suitability of
available vessels), complexity of logistical support needs and presence of
equipment in the appropriate geographical locations.
The important competitive factors in the environmental services
business are price, service, reputation, experience and operating capabilities.
In addition, we believe that the absence of uniform environmental regulation and
enforcement on international, federal and state levels has lowered barriers to
entry in several market segments and increased the number of competitors. Our
oil spill response business faces competition from the Marine Spill Response
Corporation (a non-profit corporation funded by the major integrated oil
companies), other industry cooperatives and smaller contractors who target
specific market niches.
In the contract drilling business, customers generally award
contracts on a competitive bid basis and contractors can move rigs from areas of
low utilization and day rates to areas of greater activity and higher day rates.
We believe that, as a result, competition for drilling contracts will continue
to be intense for the foreseeable future. Decreases in drilling activity in a
major market could depress day rates and could reduce utilization of our rigs.
Substantially all of our competitors in the business of providing jackup
drilling services have substantially larger fleets and are more established as
drilling contractors.
AN INCREASE IN SUPPLY OF OFFSHORE MARINE VESSELS WOULD LIKELY HAVE A NEGATIVE
EFFECT ON THE CHARTER RATES FOR OUR VESSELS, WHICH COULD REDUCE OUR EARNINGS.
Expansion of the worldwide offshore marine fleet would increase
competition in the markets where we operate. Increased refurbishment of disused
or "mothballed" vessels, conversion of vessels from uses other than oil support
and related activities or construction of new vessels could all add vessel
capacity to current worldwide levels. A significant increase in vessel capacity
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<PAGE>
would lower charter rates and result in a corresponding reduction in our
revenues and profitability.
MARINE-RELATED RISKS COULD LEAD TO THE DISRUPTION OF OUR OFFSHORE MARINE
SERVICES AND TO OUR INCURRENCE OF LIABILITY.
The operation of offshore support vessels is subject to various
risks, including catastrophic marine disaster, adverse weather and sea
conditions, capsizing, grounding, mechanical failure, collision, oil and
hazardous substance spills and navigation errors. These risks could endanger the
safety of our personnel, vessels, cargo, equipment under tow and other property,
as well as the environment. If any of these events were to occur, we could be
held liable for resulting damages. In addition, the affected vessels could be
removed from service and would not be available to generate revenue.
DRILLING-RELATED RISKS COULD LEAD TO THE DISRUPTION OF OUR DRILLING SERVICES AND
TO OUR INCURRENCE OF LIABILITY.
The operation of offshore jackup drilling rigs by Chiles is subject
to various risks, including blowouts, craterings, fires, collisions, groundings
of drilling equipment and adverse weather and sea conditions. These hazards
could damage the environment, cause personal injury or loss of life and damage
or destroy the property and equipment involved. In addition, the rigs face many
of the marine-related risks associated with our offshore support vessels. If any
of these events were to occur, we could incur substantial liability for oil
spills, reservoir damage and other accidents. In addition, the affected rigs
could be removed from service and would not be available to generate revenue.
INSURANCE COVERAGE MAY NOT PROTECT US FROM ALL OF THE LIABILITIES THAT COULD
ARISE FROM THE RISKS INHERENT IN OUR BUSINESSES.
We maintain insurance coverage against the risks related to our
offshore marine, environmental response and drilling services, which we consider
adequate. We have not in the past experienced a loss in excess of policy limits.
There can be no assurance, however, that our existing insurance coverage can be
renewed at commercially reasonable rates or that available coverage will be
adequate to cover future claims. If a loss occurs that is partially or
completely uninsured, we could be exposed to substantial liability.
OUR SIGNIFICANT INTERNATIONAL OPERATIONS ARE SUBJECT TO CURRENCY EXCHANGE RISKS.
To minimize the financial impact of currency fluctuations and risks
arising from fluctuations in currency exchange rates, we attempt to contract the
majority of our services in U.S. dollars. However, in some of our foreign
businesses, we collect revenues and pay expenses in local currency. Because we
conduct substantially all of our operations in U.S. dollars, if the value of
local currencies decline against the U.S. dollar, our operating revenues in
these foreign countries would effectively be reduced. To date, currency
fluctuations have not had a material impact on our financial condition or
profitability. We engage in certain currency hedging arrangements designed to
minimize the effect of fluctuation in pounds sterling, the currency in the
United Kingdom, where most of our currency exchange risk arises. There can be no
assurance, however, that we will not incur losses in the future as a result of
currency exchange rate fluctuations.
3
<PAGE>
MUCH OF OUR OFFSHORE MARINE OPERATIONS ARE CONDUCTED IN FOREIGN COUNTRIES.
UNSTABLE POLITICAL, MILITARY AND ECONOMIC CONDITIONS IN THOSE COUNTRIES COULD
ADVERSELY AFFECT OUR BUSINESS AND OPERATING RESULTS.
During 1999, approximately 39% of our offshore marine revenues were
derived from foreign operations. These operations are subject to risks, among
other things, of political instability, potential vessel seizure,
nationalization of assets, currency restrictions, import-export quotas and other
forms of public and governmental regulation, all of which are beyond our
control. Economic sanctions or an oil embargo in Nigeria, for example, could
have a significant negative impact on activity in the oil and gas industry in
offshore West Africa, a region in which we operate vessels. Although,
historically, our operations have not been affected materially by such
conditions or events, it is impossible to predict whether any such conditions or
events might develop in the future.
AS OUR VESSELS BECOME OLDER, WE MAY NOT BE ABLE TO MAINTAIN OR REPLACE OUR
VESSELS.
As of December 31, 1999, the average age of vessels we owned was
approximately 14.1 years. We believe that after an offshore supply vessel has
been in service for approximately 25 years, the expense (which typically
increases with age) necessary to satisfy required marine certification standards
may not be economically justifiable. There can be no assurance that we can
maintain our fleet by extending the economic life of existing vessels, or that
our financial resources will be sufficient to enable us to make expenditures
necessary for these purposes or to acquire or build replacement vessels.
SPILL RESPONSE REVENUE IS DEPENDENT UPON THE MAGNITUDE AND NUMBER OF SPILL
RESPONSES.
National Response's spill response revenue can vary greatly between
comparable fiscal periods based on the number and magnitude of spill responses
in any given period. As a result, our revenue and profitability attributable to
this business may vary greatly from period to period.
A RELAXATION OF OIL SPILL REGULATION OR ENFORCEMENT COULD REDUCE DEMAND FOR OUR
SERVICES.
Our environmental response business is dependent upon the enforcement
of regulations promulgated under the federal Oil Pollution Act of 1990 and, to a
lesser extent, upon state regulations. Less stringent oil spill regulations or
less aggressive enforcement of these regulations would decrease demand for
National Response's services. We cannot assure you that oil spill regulation
will not be relaxed or enforcement of existing or future regulation will not
become less stringent. If this happens, the demand for our oil spill response
services could be reduced, which could have a negative impact on our
profitability.
NATIONAL RESPONSE RELIES ON BEING CLASSIFIED AS AN "OIL SPILL REMOVAL
ORGANIZATION." A CHANGE IN, OR REVOCATION OF, THIS CLASSIFICATION WOULD RESULT
IN A LOSS OF BUSINESS.
National Response is a classified Oil Spill Removal Organization, or
an "OSRO." OSRO classification is a voluntary process conducted by the United
States Coast Guard. The Coast Guard classifies OSROs based on their overall
ability to respond to various types and sizes of oil spills in different
operating environments, such as rivers/canals, inland waters and oceans. Coast
Guard classified OSROs have a competitive advantage over non-classified service
providers. Customers of a classified OSRO are exempt from regulations that would
4
<PAGE>
otherwise require them to list their oil spill response resources in filings
with the Coast Guard. A loss of National Response's classification or changes in
the requirements could eliminate or diminish National Response's ability to
provide customers with this exemption. If this happens, we could lose customers,
in which case our revenues and profitability could be reduced.
IF A COURT OR OTHER APPLICABLE AUTHORITY DETERMINES THAT WE ACTED WITH GROSS
NEGLIGENCE OR WILLFUL MISCONDUCT IN PROVIDING SPILL RESPONSE SERVICES, WE COULD
BE LIABLE FOR SIGNIFICANT DAMAGES, INCLUDING DAMAGE CAUSED BY OTHERS.
In providing spill response services, National Response is subject to
the federal responder immunity doctrine, otherwise known as the "Good Samaritan"
doctrine. Under that doctrine, National Response is held harmless from liability
for any spills that result from its response efforts unless it is found to be
grossly negligent or to have engaged in willful misconduct. While most of the
U.S. states in which National Response provides service have adopted the Good
Samaritan doctrine, several states have not. If a court or other applicable
authority determines that National Response did not meet the applicable legal
standard of conduct in providing spill response services, we could be liable
together with the local contractor and the responsible party for any resulting
damages.
WE HAVE NOT PAID AND DO NOT INTEND TO PAY DIVIDENDS.
We have not paid any cash dividends to holders of our common stock
since our inception in December 1989 and do not intend to pay any such dividends
in the foreseeable future. Instead, we intend to retain earnings for working
capital and to finance the expansion of our business operations. In addition, as
a holding company, our ability to pay any cash dividends is dependent on the
earnings and cash flows of our operating subsidiaries and their ability to make
funds available to us.
IF WE DO NOT RESTRICT THE AMOUNT OF FOREIGN OWNERSHIP OF OUR COMMON STOCK, WE
COULD BE PROHIBITED FROM OPERATING OUR VESSELS IN PARTS OF THE U.S., WHICH WOULD
ADVERSELY AFFECT OUR BUSINESS AND OPERATING RESULTS.
We are subject to the Shipping Act, 1916 and the Merchant Marine Act
of 1920. These Acts govern, among other things, the ownership and operation of
vessels used to carry cargo between U.S. ports. The Acts require that vessels
engaged in the "U.S. coastwise trade" be owned by U.S. citizens and built in the
United States. For a corporation engaged in the U.S. coastwise trade to be
deemed a citizen of the U.S.:
o the corporation must be organized under the laws of the U.S.
or of a state, territory or possession thereof,
o each of the chief executive officer and the chairman of the
board of directors must be a U.S. citizen (and no officer who
is not a U.S. citizen may act in such person's absence),
o no more than a minority of the number of directors of such
corporation necessary to constitute a quorum for the
transaction of business can be non-U.S. citizens and
o at least 75% of the interest in such corporation must be owned
by U.S. "Citizens" (as defined in the Acts).
5
<PAGE>
We would be prohibited from operating our vessels in the U.S.
coastwise trade during any period in which we did not comply with these
regulations. To facilitate compliance, our certificate of incorporation:
o limits ownership by foreigners of any class of our capital
stock (including our common stock) to 22.5%, so that foreign
ownership will not exceed the 25.0% permitted). Under certain
circumstances the Board of Directors may increase this
percentage to 24.0%,
o requires a stock certification system with two types of
certificates to aid tracking of ownership, and
o permits the Board of Directors to make such determinations to
ascertain ownership and implement such limitations as
reasonably may be necessary.
WHERE YOU CAN FIND MORE INFORMATION
We file annual, quarterly and special reports, proxy statements and
other information with the SEC. Copies of these reports, proxy statements and
other information may be read and copied at the SEC's Public Reference Room at
450 Fifth Street, N.W., Washington, D.C. 20549. You may request copies of these
documents by writing to the SEC and paying a fee for the copying costs. You may
also call the SEC at 1-800-SEC-0330 for further information on the operation of
the Public Reference Room. Our SEC filings are also available to the public from
the SEC's web site at http://www.sec.gov. Our common stock is traded on the New
York Stock Exchange.
INCORPORATION OF DOCUMENTS BY REFERENCE
The SEC allows us to "incorporate by reference" certain of our
publicly filed documents into this prospectus which means that we may disclose
material information to you by referring you to those documents. The information
incorporated by reference is considered to be part of this prospectus and any
later information that we file with the SEC will automatically update and
supercede this information. We incorporate by reference the documents listed
below and any additional documents we file with the SEC until the offering of
the common stock is terminated. This prospectus is part of a registration
statement on Form S-3 that we filed with the SEC and does not contain all of the
information set forth in the registration statement.
The following documents that we previously filed with the SEC are
incorporated by reference:
(1) our Annual Report on Form 10-K for the fiscal year ended
December 31, 1999 (as amended on Form 10-K/A filed on April 6,
2000);
(2) our Quarterly Report on Form 10-Q for the fiscal quarter ended
March 31, 2000 filed on May 15, 2000; and
(3) the description of our common stock contained in our
registration statements on Form 8-A filed on November 30, 1992
and October 9, 1996, including any amendment or report filed
for the purposes of updating such description.
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We will provide any person to whom a copy of this prospectus is
delivered, on written or oral request, a copy of any or all of the documents
incorporated by reference, other than exhibits to those documents unless
specifically incorporated by reference. You should direct any requests for
documents to SEACOR SMIT Inc., 1370 Avenue of the Americas, 25th Floor, New
York, New York 10019, Attention: Corporate Secretary.
FORWARD-LOOKING STATEMENTS
Certain statements contained or incorporated by reference in this
prospectus, including without limitation, statements containing the words
"believes," "anticipates," "hopes," "intends," "expects," "will," "plans," and
other similar words may constitute "forward-looking statements" within the
meaning of the Private Securities Litigation Reform Act of 1995. These
forward-looking statements involve known and unknown risks, uncertainties and
other factors which may cause our actual results to differ materially from
expectations, including those in the section entitled "Risk Factors." Given
these uncertainties, prospective investors are cautioned not to place undue
reliance on those forward-looking statements. We disclaim any obligation to
update any of those statements or to publicly announce any updates or revisions
to any of the forward-looking statements contained in this prospectus to reflect
any change in our expectations with regard thereto or any change in events,
conditions, circumstances or assumptions underlying the statements.
USE OF PROCEEDS
The shares of common stock are being offered solely for the accounts
of the selling shareholders. We will not receive any proceeds from the sale of
the shares.
SELLING SHAREHOLDERS
The following table sets forth the name and the number of shares of
common stock owned by each selling shareholder. We issued the shares of common
stock to the selling shareholders in a private transaction on April 19, 2000 in
connection with our acquisition of Putford Enterprises Limited. Messrs. S. J.
Hashim, N. I. Palmer, R.F. Catchpole, J. K. Cowan and Mrs. P. G. Watson, who
were employed by Putford and certain of its subsidiaries as directors prior to
such acquisition, continue to be affiliated with Putford after the acquisition.
Messrs. Hashim and Palmer continue service on the board of directors of Putford
and one of its subsidiaries, Mr. Catchpole serves on the board of Putford and
each of these selling shareholders serve on the board of a second Putford
subsidiary. Mrs. Watson serves as secretary of each of these companies.
Because the selling shareholders may sell all, a portion or none of
their shares, no estimate can be made of the aggregate number of shares that
each selling shareholder may actually sell or that each selling shareholder will
own upon completion of this offering. The amounts identified as "Total Shares to
be Sold" assume the selling shareholders dispose of all shares of common stock
that they own.
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The shares offered by this prospectus may be offered from time to
time by the selling shareholders named below or by any of their pledgees,
donees, transferees or other successors in interest. The amounts set forth below
are based upon information provided by the selling shareholders and are accurate
to the best of our knowledge. It is possible, however, that the selling
shareholders may acquire or dispose of additional shares of common stock from
time to time after the date of this prospectus.
<TABLE>
<CAPTION>
COMMON STOCK OWNED BEFORE COMMON STOCK OWNED AFTER
SELLING SHAREHOLDER THE OFFERING TOTAL SHARES TO BE SOLD THE OFFERING
------------------- ------------ ----------------------- ------------
<S> <C> <C> <C>
J. R. Hashim 129 129 0
S. J. Hashim 17,157 17,157 0
P. R. Hashim 11,025 11,025 0
Dorothy Rainey Settlement 9,065 9,065 0
L. W. Rainey 6,185 6,185 0
Ms. V. L. Rainey 6,172 6,172 0
G. A. Catchpole 3,576 3,576 0
R. F. Catchpole 4,859 4,859 0
R. G. Catchpole 4,859 4,859 0
Mrs. H. M. Catchpole 642 642 0
P. F. Catchpole 4,715 4,715 0
Claire Catchpole Settlement 2,744 2,744 0
Andrew Catchpole Settlement 2,746 2,746 0
Nick Reeve Settlement 999 999 0
N. E. Stangroom 1,375 1,375 0
D. J. Strangroom 1,664 1,664 0
N. I. Palmer 1,059 1,059 0
Mrs. P. G. Watson 466 466 0
J. K. Cowan 466 466 0
Mrs. A. Catchpole 707 707 0
G. A. Catchpole Trust 642 642 0
H. M. Catchpole Trust 642 642 0
Miss S. K. Stangroom 366 366 0
Miss L. A. Stangroom 397 397 0
Mrs. D. M. Stangroom 241 241 0
Mrs. J. A. Stangroom 241 241 0
N. D. Stangroom 99 99 0
Mrs. A. J. Gribbon 377 377 0
</TABLE>
PLAN OF DISTRIBUTION
We are registering the shares of our common stock described in this
prospectus for the selling shareholders. Subject to the limitations on the use
of this prospectus described below, the "selling shareholders" also includes
persons who receive shares as a gift from a selling shareholder, commonly known
as donees, and persons who receive shares from a selling shareholder as
collateral to secure a loan, commonly known as pledgees, who are selling shares
received from a named selling shareholder after the date of this prospectus. We
will pay all costs, expenses and fees in connection with the registration of the
shares offered by this prospectus. The selling shareholders, however, will pay
for any brokerage commissions and similar selling expenses, if any, attributable
to the sale of their shares. Sales of the shares may be made by selling
shareholders from time to time in one or more types of transactions, which may
include block transactions, in the over-the-counter market, in negotiated
transactions, through put or call options transactions relating to the shares,
through short sales of the shares, or a combination of these methods of sale, at
market prices prevailing at the time of sale, or at negotiated prices. These
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transactions may or may not involve brokers or dealers. The selling shareholders
have advised us that they have not entered into any agreements, understandings
or arrangements with any underwriters or broker-dealers regarding the sale of
their securities. They also have advised us that there is no underwriter or
coordinating broker acting in connection with the proposed sale of the shares by
the selling shareholders.
The selling shareholders may sell their shares directly to purchasers
or to or through broker-dealers, which may act as agents or principals. These
broker-dealers may receive compensation in the form of discounts, concessions or
commissions from the selling shareholders or the purchasers of the shares for
whom the broker-dealers may act as agents or to whom they sell as principal, or
both. The compensation as to a particular broker-dealer might be in excess of
customary commissions.
The selling shareholders may enter into hedging transactions with
broker-dealers and the broker-dealers may engage in short sales of the common
stock in the course of hedging the positions they assume with the selling
shareholder, including in connection with distributions of the common stock by
the broker-dealers. The selling shareholders may enter into option or other
transactions with broker-dealers that involve the delivery of their shares to
the broker-dealers, who may then resell or otherwise transfer the shares. The
selling shareholders may also loan or pledge their shares to a broker-dealer and
the broker-dealer may sell the shares so loaned or, upon a default, may sell or
otherwise transfer the pledged shares.
The selling shareholders and any broker-dealers that act in
connection with the sale of their shares might be deemed to be "underwriters"
within the meaning of Section 2(11) of the Securities Act of 1933. In that
event, any commissions received by the broker-dealers and any profit on the
resale of the shares sold by them while acting as principals might be deemed to
be underwriting discounts or commissions under the Securities Act. We have
agreed to indemnify each of the selling shareholders for liabilities they incur
for selling their shares using this prospectus, including liabilities arising
under the Securities Act. The selling shareholders, however, have indemnified us
for any liabilities arising out of information furnished to us on behalf of the
selling shareholder for use in this prospectus. The selling shareholders may
agree to indemnify any agent, dealer or broker-dealer that participates in
transactions involving sales of their shares against certain liabilities,
including liabilities arising under the Securities Act.
Because selling shareholders may be deemed to be "underwriters"
within the meaning of Section 2(11) of the Securities Act, the selling
shareholders will be subject to the prospectus delivery requirements of the
Securities Act. We have informed the selling shareholders that the
anti-manipulative rules under the Securities Exchange Act of 1934, including
Regulation M, may apply to their sales in the market.
Selling shareholders may also resell all or a portion of their common
stock in open market transactions in reliance upon the SEC's Rule 144 without
delivering this prospectus, provided they meet the criteria and conform to the
requirements of that rule.
If a selling shareholder notifies us that it has entered into a
material arrangement with a broker-dealer for the sale of that selling
shareholder's shares of common stock through a block trade, special offering,
exchange distribution or secondary distribution or a purchase by a broker or
dealer, we will, if required, file a supplement or an amendment to this
prospectus. Any such supplement would disclose the name of each of those selling
shareholders and of the participating broker-dealer(s), the number of shares
involved, the price at which the shares were sold, the commissions paid or
9
<PAGE>
discounts or concessions allowed to the broker-dealer(s), where applicable, that
the broker-dealer(s) did not conduct any investigation to verify the information
set out in this prospectus, and the other facts material to the transaction. In
addition, if a selling shareholder notifies us that a donee or pledgee intends
to sell more than 500 shares, we will file a supplement to this prospectus.
Sales of a substantial number of shares of the common stock in the
public market by the selling shareholders or even the potential of such sales
could adversely affect the market price for our common stock, which could have a
direct impact on the value of the shares being offered by the selling
shareholder.
LEGAL MATTERS
The validity of the shares of common stock has been passed upon for
us by Weil, Gotshal & Manges LLP, New York, New York.
EXPERTS
The financial statements and schedule incorporated by reference in
this prospectus from our Annual Report on Form 10-K for the fiscal year ended
December 31, 1999 (as amended on Form 10-K/A filed on April 6, 2000) have been
audited by Arthur Andersen LLP, independent public accountants, as stated in
their reports with respect thereto, which are incorporated herein by reference,
and have been so incorporated herein in reliance upon the authority of such firm
as experts in accounting and auditing in giving said reports.
10
<PAGE>
<TABLE>
<S> <C>
========================================================================= ====================================================
We have not authorized any dealer, salesperson or other
person to give any information or to make any representations other
than those contained in this prospectus. You must not rely on any
unauthorized information. This prospectus does not offer to sell or
buy any securities in any jurisdiction where it is unlawful. The
information in this prospectus is current as of , SEACOR SMIT Inc.
2000.
--------------------
83,615 Shares
of
Common Stock
------------------
P R O S P E C T U S
------------------
, 2000
========================================================================= ====================================================
</TABLE>
<PAGE>
PART II
INFORMATION NOT REQUIRED IN THE PROSPECTUS
Item 14. Other Expenses of Issuance and Distribution.
The following table sets forth an estimate of the various costs and
expenses payable by the Registrant in connection with the sale of the shares
being registered hereby:
SEC registration fee................................ $1,384
Legal fees and expenses*............................
Accounting fees and expenses*.......................
Miscellaneous*......................................
-----------
Total*.................................... $
===========
- ----------
* To be provided by amendment.
Item 15. Indemnification and Limitation of Liability of Directors and Officers.
As more fully described below, Section 145 of the General Corporation
Law of the State of Delaware (the "DGCL") permits Delaware corporations to
indemnify each of their present and former directors or officers under certain
circumstances, provided that such persons acted in good faith and in a manner
which they reasonably believed to be in, or not opposed to, the best interests
of the corporation. Article III of our Amended and Restated By-laws provides
that we shall indemnify, to the fullest extent permitted by Section 145 of the
DGCL, as the same may be amended from time to time, all persons whom we may
indemnify pursuant thereto and in the manner prescribed thereby.
Specifically, Section 145 of the DGCL provides that a corporation may
indemnify any person who was or is a party or is threatened to be made a party
to any threatened, pending or completed action, suit or proceeding, whether
civil, criminal, administrative or investigative (other than an action by or in
the right of the corporation) by reason of the fact that the person is or was a
director, officer, employee, or agent of the corporation, or is or was serving
at the request of the corporation as a director, officer, employee, or agent of
another corporation, partnership, joint venture, trust or other enterprise,
against expenses (including attorneys' fees), judgments, fines and amounts paid
in settlement actually and reasonably incurred by the person in connection with
such action, suit, or proceeding if he acted in good faith and in a manner he
reasonably believed to be in or not opposed to the best interests of the
corporation, and, with respect to any criminal action or proceeding, had no
reasonable cause to believe the person's conduct was unlawful. The termination
of any action, suit or proceeding by judgment, order, settlement, conviction, or
upon plea of nolo contendere or its equivalent, shall not, of itself, create a
presumption that the person did not act in good faith and in a manner which the
person reasonably believed to be in or not opposed to the best interests of the
corporation, or, with respect to any criminal action or proceeding, that the
person had reasonable cause to believe that the person's conduct was unlawful.
Section 145 of the DGCL also provides that a corporation may
indemnify any person who was or is a party or is threatened to be made a party
to any threatened, pending, or completed action or suit by or in the right of
the corporation to procure a judgment in its favor by reason of the fact that
the person is or was a director, officer, employee, or agent of the corporation,
or is or was serving at the request of the corporation as a director, officer,
II-1
<PAGE>
employee, or agent of another corporation or is or was serving at the request of
the corporation as a director, officer, employee or agent of another
corporation, partnership, joint venture, trust or other enterprise against
expenses (including attorneys' fees) actually and reasonably incurred by the
person in connection with the defense or settlement of such action or suit if
the person acted in good faith and in a manner he reasonably believed to be in
or not opposed to the best interests of the corporation and except that no
indemnification shall be made in respect of any claim, issue or matter as to
which such person shall have been adjudged to be liable to the corporation
unless and only to the extent that the Court of Chancery or the court in which
such action or suit was brought shall determine upon adjudication that, despite
the adjudication of liability but in view of all the circumstances of the case,
such person is fairly and reasonably entitled to indemnity for such expenses
which the Court of Chancery or such other court shall deem proper.
Any such indemnification (unless ordered by a court) shall be made by
the corporation only as authorized in the specific case upon a determination
that indemnification of the director, officer, employee or agent is proper in
the circumstances because such person has met the applicable standard of conduct
set forth above.
Section 145 of the DGCL permits a Delaware business corporation to
purchase and maintain insurance on behalf of any person who is or was a
director, officer, employee or agent of the corporation, or is or was serving at
the request of the corporation as a director, officer, employee or agent of
another corporation, partnership, joint venture, trust or other enterprise
against any liability asserted against such person and incurred by him in any
such capacity, or arising out of his status as such, whether or not the
corporation would have the power to indemnify such person.
Section 102(b) of the DGCL enables a Delaware corporation to include
a provision in its certificate of incorporation limiting a director's liability
to the corporation or its stockholders for monetary damages for breaches of
fiduciary duty as a director. Our certificate of incorporation contains
provisions that limit the personal liability of each of our directors or our
stockholders for monetary damages for breach of the fiduciary duty of care as a
director. These provisions eliminate personal liability to the fullest extent
permitted by the DGCL.
Item 16. Exhibits.
Number Description
2.1 Share Purchase Agreement, dated as of April
19, 2000, among SEACOR SMIT Inc. and the
other parties thereto.
4.1 Investment and Registration Rights
Agreement, dated as of April 19, 2000, among
SEACOR SMIT Inc. and the other parties
thereto
5.1 Opinion of Weil, Gotshal & Manges LLP
23.1 Consent of Arthur Andersen LLP
23.2 Consent of Weil, Gotshal & Manges LLP
(included as part of Exhibit 5.1)
24.1 Power of Attorney (included on signature
page to the Registration Statement)
II-2
<PAGE>
Item 17. Undertakings.
(1) The undersigned registrant hereby undertakes:
(a) To file, during any period in which offers or
sales are being made, a post-effective amendment to this
registration statement:
(i) to include any prospectus required
by Section 10(a)(3) of the Securities Act of 1933;
(ii) to reflect in the prospectus any
facts or events arising after the effective date of this
registration statement (or the most recent post-effective
amendment thereof) which, individually or in the aggregate,
represent a fundamental change in the information set forth
in this registration statement;
(iii) to include any material
information with respect to the plan of distribution not
previously disclosed in this registration statement or any
material change to such information in this registration
statement;
provided, however, that the undertakings set forth in
paragraphs (a)(i) and (a)(ii) above do not apply if the
information required to be included in a post-effective
amendment by those paragraphs is contained in periodic
reports filed with or furnished to the Securities and
Exchange Commission by the Registrant pursuant to Section
13 or Section 15(d) of the Securities Exchange Act of 1934
that are incorporated by reference in this registration
statement.
(b) That, for the purpose of determining any
liability under the Securities Act of 1933, each such
post-effective amendment shall be deemed to be a new
registration statement relating to the securities offered
therein, and the offering of such securities at that time
shall be deemed to be the initial bona fide offering
thereof.
(c) To remove from registration by means of a
post-effective amendment any of the securities being
registered hereby which remain unsold at the termination of
the offering.
(2) The undersigned Registrant hereby undertakes that, for purposes
of determining any liability under the Securities Act, each filing of the
Registrant's annual report pursuant to Section 13(a) or Section 15(d) of the
Exchange Act that is incorporated by reference in this registration statement
shall be deemed to be a new registration statement relating to the securities
offered therein, and the offering of such securities at that time shall be
deemed to be the initial bona fide offering there.
(3) Insofar as indemnification for liabilities arising under the
Securities Act may be permitted to directors, officers and controlling persons
of the Registrant pursuant to the provisions in Item 14 above, or otherwise, the
Registrant has been advised that in the opinion of the Securities and Exchange
Commission such indemnification is against public policy as expressed in the
Securities Act and is, therefore, unenforceable. In the event that a claim for
indemnification against such liabilities (other than the payment by the
Registrant of expenses incurred or paid by a director or officer or controlling
person of the Registrant in the successful defense of any action, suit or
II-3
<PAGE>
proceeding) is asserted by such director, officer or controlling person in
connection with the securities being registered, the Registrant will, unless in
the opinion of its counsel the matter has been settled by controlling precedent,
submit to a court of appropriate jurisdiction the question of whether such
indemnification by it is against public policy as expressed in the Securities
Act and will be governed by the final adjudication of such issue.
II-4
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
registrant certifies that it has reasonable grounds to believe that it meets all
of the requirements for filing on Form S-3 and has duly caused this registration
statement to be signed on its behalf by the undersigned, thereunto duly
authorized in the City of New York, State of New York, on May 19, 2000.
SEACOR SMIT INC.
By: /s/ Randall Blank
-----------------------------------
Randall Blank
Executive Vice President,
Chief Financial Officer and
Secretary
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature
appears below constitutes and appoints Charles Fabrikant and Randall Blank, or
either of them, his attorney-in-fact, each with the power of substitution, for
him in any and all capacities, to sign any amendments to this registration
statement, and to file the same, with exhibits thereto and other documents in
connection therewith, with the Securities and Exchange Commission, hereby
ratifying and confirming all that each of said attorneys-in-fact, or his
substitute or substitutes, may do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this
registration statement has been signed by the following persons in the
capacities and on the dates indicated.
<TABLE>
<CAPTION>
Signatures Title Date
- ---------- ----- ----
<S> <C> <C>
/s/ Charles Fabrikant Chairman of the Board of Directors, May 16, 2000
- ---------------------------------------- President and Chief Executive Officer
Charles Fabrikant (Principal Executive Officer)
/s/ Randall Blank Executive Vice President, Chief Financial May 19, 2000
- ---------------------------------------- Officer and Secretary
Randall Blank (Principal Financial Officer )
/s/ Michael E. Gellert Director May 19, 2000
- ----------------------------------------
Michael E. Gellert
II-5
<PAGE>
Director
- ----------------------------------------
Andrew R. Morse
/s/ Granville E. Conway Director May 18, 2000
- ----------------------------------------
Granville E. Conway
/s/ Stephen Stamas Director May 17, 2000
- ----------------------------------------
Stephen Stamas
/s/ Richard M.Fairbanks III Director May 18, 2000
- ----------------------------------------
Richard M. Fairbanks III
/s/ Pierre de Demandolx Director May 17, 2000
- ----------------------------------------
Pierre de Demandolx
/s/ Antoon Kienhuis Director May 19, 2000
- ----------------------------------------
Antoon Kienhuis
/s/ Lenny P. Dantin Vice President and Treasurer (Principal May 19, 2000
- ---------------------------------------- Accounting Officer and Controller)
Lenny P. Dantin
</TABLE>
II-6
<PAGE>
EXHIBIT INDEX
Number Description
2.1 Share Purchase Agreement, dated as of April
19, 2000, among SEACOR SMIT Inc. and the
other parties thereto.
4.1 Investment and Registration Rights
Agreement, dated as of April 19, 2000, among
SEACOR SMIT Inc. and the other parties
thereto
5.1 Opinion of Weil, Gotshal & Manges LLP
23.1 Consent of Arthur Andersen LLP
23.2 Consent of Weil, Gotshal & Manges LLP
(included as part of Exhibit 5.1)
24.1 Power of Attorney (included on signature
page to the Registration Statement)
II-7
Exhibit 2.1
THIS AGREEMENT is made on the 19th day of April 2000
BETWEEN
(1) THE SEVERAL PERSONS whose respective names and addresses are set
out in column (1) of Schedule 1 (the "Vendors");
(2) SEACOR SMIT INC (a company incorporated under the laws of the State
of Delaware, USA) of 11200 Richmond Avenue, Suite 400, Houston,
Texas, 77082, USA (the "Purchaser")
WHEREAS:-
(A) Putford Enterprises Limited (the "Company"), a company registered
in England with number 455971, has at the date of this Agreement an
authorised share capital of (pound)15,005,609.90 divided into
56,099 A Ordinary Shares of 10p each of which 55,578 are issued and
fully paid or credited as fully paid and are owned by the Vendors
in the proportions shown opposite their respective names in column
(2) of Schedule 1 and 150,000,000 B Ordinary Shares of 10p each
none of which have been issued.
(B) The Vendors have agreed to sell the Shares to the Purchaser and the
Purchaser has agreed to purchase the Shares in reliance (inter
alia) upon the representations, warranties and undertakings in this
Agreement, for the consideration and otherwise upon and subject to
the terms and conditions of this Agreement.
WHEREBY IT IS AGREED as follows:
1. DEFINITIONS AND INTERPRETATION
1.1 In this Agreement the following words and expressions have the
meanings set opposite them:
"A Ordinary Shares" the 55,578 issued A Ordinary Shares of 10p each in the
capital of the Company and having the rights set out
in the articles of association of the Company adopted
immediately before the signing of this Agreement;
<PAGE>
"Accounts" the audited balance sheet as at the Balance Sheet Date
and the audited profit and loss account for the
accounting reference period ended on the Balance Sheet
Date of the Company and of each of the Subsidiaries
and the Associated Company (including, in the case of
the Company, the audited consolidated balance sheet as
at that date and the audited consolidated profit and
loss account for that year which for the avoidance of
any doubt include the results, to the extent of the
Company's respective interests therein of:-
(a) the Company's joint ventures in respect
of the PUTFORD VIKING (formerly named
BLUE FLAME) and NOVA stand by vessels
and;
(b) the Associated Company; and the notes,
reports, statements and other documents
which are or would be required by law to
be annexed to the Accounts of the company
concerned and to be sent or made
available to members for such Financial
Year;
"Accounting Standards" statements of standard accounting practice (including
financial reporting standards) issued pursuant to
section 256, CA 85 by the ASB;
"Adjusted Net Current
Assets" has the meaning given thereto in Schedule 5;
"ASB" Accounting Standards Board Limited (no. 2526824) or
such other body prescribed by the Secretary of State
from time to time pursuant to section 256, CA 85;
"Affiliate" in relation to any body corporate, any Holding Company
or subsidiary undertaking of such body corporate or
any subsidiary undertaking of a Holding Company of
such body corporate;
"Agreement" this Agreement including its recitals and the
schedules but not the Tax Deed;
2
<PAGE>
"A Loan Notes" the unsecured A loan notes in agreed terms in the
aggregate principal amount of two million five hundred
thousand pounds ((pound)2,500,000) (subject to
reduction as therein provided) to be issued by the
Purchaser in partial satisfaction of the Consideration
;
"the Associated Company" the company in which a Subsidiary holds shares
conferring the right to exercise not less than 50% of
the votes which could be cast on a poll at a general
meeting of such company and which is more particularly
listed in Part 3 of Schedule 2;
"B Ordinary Shares" the 135,758,640 B Ordinary Share of 10p each in the
capital of the Company to be allotted and issued to
the Purchaser in accordance with Clause 5.3.3 and
having the rights set out in the articles of
association of the Company adopted immediately prior
to the signing of this Agreement;
"B Loan Notes" the unsecured B loan notes in agreed terms in the
aggregate principal amount of five million pounds
((pound)5,000,000) to be issued by the Purchaser in
partial satisfaction of the Consideration ;
"Balance Sheet Date" 31st December 1999;
"Business" collectively the businesses of the Company and each of
the Subsidiaries and the Associated Company at the
date hereof;
"Business Day" a day (other than a Saturday or Sunday) when banks are
open for business in London;
"CA 85" Companies Act 1985;
"CAA" Capital Allowances Act 1990;
3
<PAGE>
"Claim" any claim by the Purchaser in connection with the
Warranties or the Indemnities or the Tax Deed;
"Companies Acts" as defined in section 744, CA 85 together with the
Companies Act 1989;
"Competent Authority" means any person or legal entity (including any
government or government agency) having regulatory
authority under Environmental Laws and/or any court of
law or tribunal;
"Completion" completion of the sale and purchase of the Shares
pursuant to this Agreement;
"Completion Accounts" the accounts referred to Clause 6.1.1, prepared in
accordance with Schedule 5;
"Completion Dividend" the interim dividend of(pound)13,575,864 to be
declared on Completion by the Company in respect of
its shares and to be paid to the Vendors in accordance
with Clause 5.5;
"Confidential
Information" all confidential information received or obtained as a
result of entering into or performing, or supplied by
or on behalf of a party in the negotiations leading
to, this Agreement and which relates to:
(i) the Company and the Subsidiaries and the
Associated Company;
(ii) any aspect of the Business; or
(iii) the Purchaser;
"Connected Person" a person connected with any of the Vendors or the
Directors (or any former director of the Company or
any of the Subsidiaries) within the meaning of section
839, ICTA 1988;
4
<PAGE>
"Consideration" the consideration payable for the Shares as specified
in Clause 3.1;
"Consideration Shares" the 83,615 shares of common stock of the Purchaser
having a par value of $0.01 per share to be delivered
by the Purchaser in partial satisfaction of the
Consideration representing(pound)2,500,000 in value
determined at an exchange ratio calculated based on
the average closing price of the common stock of the
Purchaser during the thirty calendar days prior to 7
February 2000 and using an exchange rate based on the
average New York closing price for British pounds
sterling during the same thirty calendar day period;
"Directors" the directors of the Company and the Subsidiaries
named in Schedule 2;
"Disclosed" fairly disclosed by the Disclosure Documents and by
the general and specific disclosures set out in the
Disclosure Letter and "Disclosure" shall be construed
accordingly;
"Disclosure Bundle" the two identical bundles of documents collated by or
on behalf of the Vendors, the outside covers of which
have been signed for identification by or on behalf of
the Vendors and the Purchaser;
"Disclosure Documents" the Disclosure Letter and the Disclosure Bundle;
"Disclosure Letter" the letter described as such of even date herewith
addressed by the Vendors to the Purchaser and accepted
by the latter immediately before the signature hereof;
"Encumbrance" any interest or equity of any person (including any
right to acquire, option or right of pre-emption) or
any mortgage, charge, pledge, lien, claims,
assignment, hypothecation, security interest, rights
in rem, title retention or any other security
agreement or arrangement;
5
<PAGE>
"Environment" any and all organisms (including man), ecosystems,
property and the following media: air (including the
air within buildings and the air within other natural
or man-made structures whether above or below ground);
water (including water under or within land or in
drains or sewers and coastal and inland waters); and
land (including land under water);
"Environmental
Agreements" any and all leases or licences or other agreements
which are binding upon the Company or any of the
Subsidiaries or the Associated Company but only to the
extent that they relate, either wholly or in part, to
the protection of the Environment, and/or the
prevention of Harm;
"Environmental Laws" any and all laws, whether civil, criminal or
administrative, which have as a purpose or effect the
protection of the Environment, and/or the mitigation,
abatement, containment or prevention of Harm and/or
the provision of remedies in respect of Harm,
including European Community or European Union
regulations, directives, decisions and
recommendations; statutes and subordinate legislation;
regulations, orders, ordinances; Permits, statutory
codes of practice, government circulars, statutory
guidance notes; common law and by-laws; judgments,
notices, orders, directions, instructions or awards of
any Competent Authority; and Environmental Agreements
applicable to the Company and the Subsidiaries and the
Associated Company which are in force or in existence
at the date of Completion;
"Environmental Liability" liability (including liability in respect of Remedial
Action) on the part of the Company or any of the
Subsidiaries or the Associated Company and/or any of
their directors or officers or shareholders under
Environmental Laws;
6
<PAGE>
"ERA" Employment Rights Act 1996;
"Escrow Account" the interest bearing account to be established in the
joint names of the Purchaser's Solicitors and the
Vendors' Solicitors to be operated in accordance with
the Escrow Agreement and Instruction Letter by the
Vendors and the Purchaser and their respective
Solicitors;
"Escrow Agreement and
Instruction Letter" the escrow agreement and instruction letter in the
agreed terms to be signed by the parties at Completion
in respect of the Escrow Account;
"Event" any payment, transaction, act, omission or occurrence
of whatever nature whether or not the Company or the
Purchaser is a party thereto and including:
(a) the execution of this Agreement and
completion of the sale of the Shares to
the Purchaser; and
(b) the death of any person;
and references to an Event occurring on or before
Completion shall include an Event deemed, pursuant to
any Taxation Statute, to occur or be treated or
regarded as occurring on or before Completion;
"Existing Use" the existing use of each Property which is set out in
column (5) of Part 1 and column (6) of Part 2 of
Schedule 3;
"FA" Finance Act;
7
<PAGE>
"Financial Year" a financial year within the meaning ascribed to such
expression by section 223, CA 85;
"Group" together the Company and the Subsidiaries;
"Harm" harm to the health of living organisms or other
interference with the ecological systems of which they
form part and, in the case of man, includes harm to
his property;
"Hazardous Matter" any and all matter (whether alone or in combination
with other matter) including electricity, heat,
vibration, noise or other radiation which may or is
liable to cause significant Harm;
"Holding Company" a holding company within the meaning ascribed to such
expression by sections 736 and 736A, CA 85;
"ICTA 1988" Income and Corporation Taxes Act 1988;
"Indemnities" the indemnities given by the Vendors in Clause 11;
"Intellectual
Property Rights" any and all patents, trademarks, service marks,
copyright, moral rights, rights in a design, know how,
confidential information and all or any other
intellectual or industrial property rights whether or
not registered or capable of registration and whether
subsisting in the United Kingdom or any other part of
the world together with all or any goodwill relating
or attached thereto;
"ITA" Inheritance Tax Act 1984;
"JV Vessels" the M/V PUTFORD VIKING (formerly named BLUE FLAME) and
the M/V NOVA;
"Legal and Beneficial
Title" full and unrestricted title with the benefit of quiet
possession and free from lawful interruption and
disturbance;
8
<PAGE>
"Losses" actions, proceedings, losses, damages, liabilities,
claims, costs and expenses including fines, penalties,
clean-up costs, legal and other professional fees and
any VAT payable in relation to any such matter,
circumstance or item except to the extent that the
Purchaser is able to obtain credit for such VAT as
input tax;
"Managed Vessels" the vessels managed by the Company as set out in Part
2 of Schedule 8;
"Non Director Vendor" a Vendor who is not a Director;
"Pension Schemes" agreements or arrangements (whether legally
enforceable or not) for the payment of any pensions,
allowances, lump sums or other like benefits on
retirement or on death or during periods of sickness
or disablement for the benefit of any present or
former director, officer or employee of the Company or
of any of the Subsidiaries or for the benefit of the
dependants of any such persons;
"Permits" any and all licences, consents, permits,
authorisations or the like, made or issued pursuant to
or under, or required by, Environmental Laws in
relation to the carrying on of the Business;
"Pre Completion Dividend" the dividend of (pound)6,870,350 to be declared before
Completion by the Company in respect of the year ended
on the Balance Sheet Date and to be paid to the
Vendors and 3i Group Plc prior to Completion;
"Pre Completion Period" the period from 1st January 2000 to the date of
Completion (inclusive);
"Proceedings" any proceeding, suit or action arising out of or in
connection with this Agreement;
9
<PAGE>
"Properties" the properties of which short particulars are set out
in Schedule 3 and the expression "Property" shall
mean, where the context so admits, any one or more of
such properties and any part or parts thereof;
"Purchaser's Group" the Purchaser and its Affiliates;
"Purchaser's Solicitors" Wright Son & Pepper of 9 Grays Inn Square, London WC1R
5JF;
"Putford Vessels" the whole of each of the vessels listed in Part 1 of
Schedule 8 (or in the case of the JV Vessels the
Company's interest therein) including with respect to
each Vessel (whether onboard or ashore) all spare
parts, davits, daughter craft, fast rescue craft and
scoops and other equipment, inventory, appurtenances,
stores and supplies, fuel and lubes;
"Remedial Action" (i) preventing, limiting, removing, remedying,
cleaning-up, abating or containing the presence or
effect of any Hazardous Matter in the Environment to
the standard required by the Competent Authority
(including the Environment at the Property to the
standard required to render the Property suitable for
its Existing Use); or (ii) carrying out investigative
work and obtaining legal and other professional advice
as is reasonably required in relation to (i);
"Registration Rights
Agreement" an investment and registration rights agreement in
agreed terms relating to the Consideration Shares to
be entered into by the Purchaser and the Vendors on
Completion;
"Retention" the sum of(pound)500,000 to be paid into the Escrow
Account on Completion;
10
<PAGE>
"SEC" the United States Securities and Exchange Commission;
"Shares" the A Ordinary Shares ;
"SSAP" a statement of standard accounting practice or
financial reporting standard in force at the date
hereof as issued by the Institute of Chartered
Accountants in England and Wales and adopted by the
ASB as an Accounting Standard;
"Subscription Payment" the payment of the sum set out in Clause 5.3.3;
"subsidiary" a subsidiary within the meaning ascribed to such
expression by sections 736 and 736A, CA 85;
"subsidiary undertaking" a subsidiary undertaking within the meaning ascribed
to such expression by section 258, CA 85;
"Subsidiaries" the subsidiaries of the Company named in Part 2 of
Schedule 2;
"Taxation" or "Tax" (a) all forms of taxation including any
charge, tax, duty, levy, impost,
withholding or liability wherever
chargeable imposed for support of
national, state, federal, municipal or
local government or any other person and
whether of the UK or any other
jurisdiction; and
(b) any penalty, fine, surcharge, interest,
charges or costs payable in connection
with any taxation within (a) above;
"Taxation Authority" the Inland Revenue, Customs & Excise, Department of
Social Security and any other governmental or other
authority whatsoever competent to impose any Taxation
whether in the United Kingdom or elsewhere;
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"Tax Deed" the deed in the agreed terms containing certain
taxation covenants and indemnities between the Vendors
and the Purchaser;
"Taxation Statute" any directive, statute, enactment, law or regulation,
wheresoever enacted or issued, coming into force or
entered into providing for or imposing any Taxation
and shall include orders, regulations, instruments,
bye-laws or other subordinate legislation made under
the relevant statute or statutory provision and any
directive, statute, enactment, law, order, regulation
or provision which amends, extends, consolidates or
replaces the same or which has been amended, extended,
consolidated or replaced by the same;
"Tax Warranties" the warranties set out in Part 2 of Schedule 4;
"TCGA" Taxation of Chargeable Gains Act 1992;
"TMA" Taxes Management Act 1970;
"Trade Union" as defined in section 1, TULRCA;
"TULRCA" Trade Union and Labour Relations (Consolidation) Act
1992;
"TUPE" Transfer of Undertakings (Protection of Employment)
Regulations 1981;
"VAT" value added tax;
"VATA" Value Added Tax Act 1994;
"Vendors' Accountants" Bishop Fleming of 50 The Terrace, Torquay TQ1 1DD;
"Vendor Director" a Vendor who is a Director;
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"Vendors' Representative" Simon Hashim of Odinhahl, Church Road, Uggeshall,
Beccles, Suffolk NR34 8BH one of the Vendors;
"Vendors' Solicitors" Eversheds of Holland Court, The Close, Norwich NR1
4DX;
"Vessels" the Putford Vessels and the Managed Vessels;
"Vessel Claim" any Claim in respect of any of the Putford Vessels;
"Warranties" the warranties set out in Clause 9 and Schedule 4;
"in the agreed terms" in the form agreed between the Vendors and the
Purchaser and signed for the purposes of
identification by or on behalf of each party.
1.2 The table of contents and headings in this Agreement are inserted
for convenience only and shall not affect its construction.
1.3 Unless the context otherwise requires words denoting the singular
shall include the plural and vice versa, references to any gender
shall include all other genders and references to persons shall
include bodies corporate, unincorporated associations and
partnerships, in each case whether or not having a separate legal
personality. References to the word "include" or "including" are to
be construed without limitation.
1.4 References to recitals, schedules and clauses are to recitals and
schedules to and clauses of this Agreement unless otherwise
specified and references within a schedule to paragraphs are to
paragraphs of that schedule unless otherwise specified.
1.5 References in this Agreement to any statute, statutory provision or
EC Directive include a reference to that statute, statutory
provision or EC Directive as amended, extended, consolidated or
replaced from time to time (whether before or after the date of
this Agreement) and include any order, regulation, instrument or
other subordinate legislation made under the relevant statute,
statutory provision or EC Directive except to the extent that any
modification enacted after the date of this Agreement would
increase the liability of the Vendors under the Warranties.
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1.6 Words and expressions defined in the Tax Deed shall to the extent
not inconsistent bear the same meanings in this Agreement.
1.7 References to any English legal term for any action, remedy, method
of judicial proceeding, legal document, legal status, court,
official or any legal concept, state of affairs or thing shall in
respect of any jurisdiction other than England be deemed to include
that which most approximates in that jurisdiction to the English
legal term.
1.8 Any reference to "writing" or "written" includes faxes and any
non-transitory form of visible reproduction of words.
1.9 Any agreement, covenant, representation, warranty, undertaking or
liability arising under this Agreement on the part of two or more
persons shall be deemed to be made or given by such persons
severally.
1.10 References to the Vendors shall include each of them severally.
1.11 In Schedule 4, references to the Company shall be deemed to include
a corresponding reference to the Subsidiaries, the Associated
Company and each of them severally and references to the Accounts
are to those of the Company or the relevant Subsidiary or the
Associated Company, as the case may be.
1.12 References to times of the day are to London time and references to
a day are to a period of 24 hours running from midnight.
1.13 References to the Purchaser shall include references to its
successors in title to the Shares and permitted assigns.
2. SALE AND PURCHASE
2.1 OBLIGATION TO SELL AND PURCHASE
Subject to the terms of this Agreement, each of the Vendors shall
sell with full title guarantee, that number of Shares of which he
or she is the registered holder or is entitled to be the registered
holder (subject only to stamping of any transfer of shares from 3i
Group Plc) at Completion and which are set opposite his name in
column (2) of Schedule 1 and the Purchaser shall purchase such
interests in the same together with all rights attaching thereto at
Completion.
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2.2 DIVIDENDS AND DISTRIBUTIONS
The Purchaser shall be entitled to receive all dividends and
distributions declared, paid or made by the Company other than the
Pre Completion Dividend and the Completion Dividend on or after the
date of Completion and for the avoidance of any doubt it is agreed
that the Purchaser is entitled to the benefit of the profit shown
by the consolidated profit and loss account referred to in Clause
6.1.3.
2.3 SALE OF ALL SHARES
The Purchaser shall not be obliged to complete the purchase of any
of the Shares unless the purchase of all the Shares is completed
simultaneously.
3. CONSIDERATION
3.1 CONSIDERATION
The Shares shall be sold for the sum of (pound)10,622,420 (Ten
Million Six Hundred and Twenty Two Thousand Four Hundred and Twenty
Pounds) but subject to reduction as provided in Clause 7.
3.2 The Consideration shall be paid or satisfied as follows:-
3.2.1 by the payment in cash on Completion of the sum of(pound)622,420
(Six Hundred and Twenty Two Thousand Four Hundred and Twenty
Pounds) subject to the Retention;
3.2.2 by the allotment on Completion of the Consideration Shares credited
as fully paid;
3.2.3 by the issue on Completion of the A Loan Notes and;
3.2.4 by the issue on Completion of the B Loan Notes.
3.3 ENTITLEMENT TO CONSIDERATION
The Consideration shall belong to the Vendors in the proportions
set opposite their respective names in column (3) of Schedule 1.
3.4 ACKNOWLEDGEMENT
In arriving at the Consideration the parties acknowledge and
confirm that they have taken into account an amount (pound)56,000
representing the difference between an assumed base value of the
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Putford Vessels for capital allowance purposes of (pound)5,000,000
and the actual base value for such purposes.
4. WAIVERS OF PRE-EMPTION
Each of the Vendors hereby waives all rights of pre-emption or
other rights over any of the Shares conferred on him either by the
articles of association of the Company or in any other way.
5. COMPLETION
5.1 TIME AND LOCATION
Subject as provided in sub-clause 5.5, Completion shall take place
at the offices of the Vendors' Solicitors immediately after
signature of this Agreement.
5.2 VENDORS' OBLIGATIONS
At Completion:
5.2.1 the Vendors shall deliver or make available to the Purchaser each
of the documents listed in Part 1 of Schedule 6; and
5.2.2 the Vendors shall procure that all necessary steps are taken
properly to effect the matters listed in Part 2 of Schedule 6 at
board meetings of the Company and each of the Subsidiaries and
shall deliver to the Purchaser duly signed minutes of all such
board meetings.
5.3 PURCHASER'S OBLIGATIONS
Subject to the Vendors complying with their obligations under
sub-clause 5.2 the Purchaser shall at Completion:
5.3.1 procure that all necessary steps are taken properly to effect the
matters listed in Part 3 of Schedule 6 at a board meeting of the
Purchaser and shall deliver to the Vendors a duly signed minute of
such board meeting;
5.3.2 deliver to the Vendors each of the documents listed in Part 4 of
Schedule 6;
5.3.3 subscribe in cash for 135,758,640 B Ordinary Shares and shall pay
or procure the payment of (pound)13,575,864 by way of electronic
transfer in immediately available funds to the Vendors' Solicitors
who are hereby irrevocably authorised by the Company to receive the
same;
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5.3.4 pay or procure the payment of the sum of (pound)622,420 by way of
electronic transfer in immediately available funds to the Vendors'
Solicitors who are irrevocably authorised by the Vendors to receive
the same and whose receipt shall be an effective discharge of the
Purchaser's obligation to pay such sum and the Purchaser shall not
be concerned to see the application of such sum save that it is
agreed that (pound)500,000 shall be paid into the Escrow Account in
respect of the Retention as soon as practicable after Completion;
5.4 SUBSCRIPTION PAYMENT
The parties hereby agree and shall procure that the Company uses
the Subscription Payment to satisfy the payment of the Completion
Dividend to the Vendors and the parties irrevocably authorise the
Vendors' Solicitors to release the Subscription Payment to the
Vendors.
5.5 VENDORS' FAILURE TO COMPLY
If in any respect reasonably material to the Purchaser the
provisions of sub-clause 5.2 and Schedule 6 are not complied with
on the date of Completion applicable under sub-clause 5.1, the
Purchaser shall not be obliged to complete this Agreement but may:
5.5.1 defer Completion to a date not more than twenty-eight days after
the date set by sub-clause 5.1 (and so that the provisions of this
sub-clause 5.6 shall apply to Completion as so deferred);
5.5.2 proceed to Completion so far as practicable and without prejudice
to its rights under this Agreement; or
5.5.3 waive all or any of the requirements contained in sub-clause 5.2 at
its discretion.
5.6 PENDING REGISTRATION
Each of the Vendors hereby declares that so long as he remains the
registered holder of any of the Shares after Completion he will:-
5.6.1 stand and be possessed of the Shares and the dividends and other
distributions of profits or surplus or other assets in respect
thereof and all rights arising out of or in connection therewith in
trust for the Purchaser other than the Completion Dividend and the
Pre Completion Dividend;
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5.6.2 deal with and dispose of the Shares, and all such dividends,
distributions and rights attaching to the Shares as the Purchaser
may reasonably direct and at its cost;
5.6.3 at the request of the Purchaser and at its cost vote at all
meetings which he shall be entitled to attend as the holder of the
Shares in such manner as the Purchaser may reasonably direct; and
5.6.4 if so requested by the Purchaser and at its cost, execute all
instruments of proxy or other documents which the Purchaser may
reasonably require and which may be necessary or desirable to
enable the Purchaser to attend and vote at any such meeting.
6. COMPLETION ACCOUNTS
6.1 PREPARATION OF COMPLETION ACCOUNTS
6.1.1 Forthwith after Completion, the Purchaser shall prepare the
Completion Accounts for the Group as at the close of business on
the date of Completion and shall submit them to the Vendors'
Accountants for review within 60 days after Completion. The Vendors
shall pay the charges of the Vendors' Accountants.
6.1.2 If the Purchaser shall fail to procure the preparation of accounts
in accordance with sub-clause 6.1.1, the Vendors may procure the
same at the Purchaser's expense.
6.1.3 The Completion Accounts shall consist of a consolidated balance
sheet for the Company as at the close of business on the date of
Completion and a consolidated profit and loss account for the
Company (including the results to the extent of the Company's
respective interests therein of (a) the Company's joint ventures in
respect of the BLUE FLAME and NOVA stand by vessels and (b) the
Associated Company) in respect of the Pre-Completion Period and the
Completion Accounts shall be prepared in accordance with the
principles set out in Schedule 5.
6.1.4 within 15 Business Days after receipt of the Completion Accounts
pursuant to sub-clause 6.1.1 the Vendors' Accountants notify the
Purchaser in writing of any disagreement or difference of opinion
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relating to the Completion Accounts, the parties shall be deemed to
have accepted and agreed the Completion Accounts.
6.1.5 If within the period of 15 Business Days referred to in sub-clause
6.1.4 the Vendors' Accountants notify the Purchaser of any
disagreement or difference of opinion relating to the Completion
Accounts ("Notice of Disagreement") and if they are able to resolve
such disagreement or difference of opinion within 15 Business Days
of the Notice of Disagreement, the parties shall be deemed to have
accepted and agreed such accounts.
6.1.6 If the Purchaser and the Vendors' Accountants are unable to reach
agreement within 15 Business Days of the Notice of Disagreement,
the matter in dispute shall be referred to the decision of an
independent chartered accountant (the "Independent Accountant") to
be appointed (in default of nomination by agreement between the
Vendors and the Purchaser within 7 Business Days) by the President
for the time being of the Institute of Chartered Accountants in
England and Wales.
6.1.7 The Independent Accountant shall act as an expert and not as an
arbitrator, the Arbitration Act 1996 shall not apply and his
decision shall (in the absence of manifest error) be final and
binding on the Vendors and the Purchaser. The costs of the
Independent Accountant shall be apportioned between the Vendors and
the Purchaser as the Independent Accountant shall decide but each
party shall be responsible for its own costs of presenting its case
to the Independent Accountant.
6.1.8 The Purchaser shall procure that the Vendors' Accountants are given
access to all the relevant books, records and accounts of the
Company and the Purchaser agrees that the Vendors' Accountants
shall be at liberty to disclose to the Vendors any information and
copies of any documents which they receive by virtue of this clause
for the purposes of reviewing the Completion Accounts.
7. REDUCTION OF CONSIDERATION
7.1 The Consideration shall be reduced after Completion in accordance
with the following provisions of this Clause 7.
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7.2 If the Adjusted Net Current Assets are less than (pound)4,254,284
(Four Million Two Hundred and Fifty Four Thousand Two Hundred and
Eighty Four) the Consideration shall be reduced by the amount of
the deficiency.
7.3 If notwithstanding the provisions of paragraph 5.1.4 of Part 1 of
Schedule 4 any dividends (other than the Pre Completion Dividend
and the Completion Dividend) or other distributions referable to
the profits of the Group for the Pre-Completion Period (as shown in
the Completion Accounts) have been paid to or declared payable to
the Vendors the Consideration shall be reduced by the amount of
such dividend or distribution.
7.4 If the aggregate amount of salaries, fees, pension contributions
and other contractual benefits payable to such of the Vendors who
are employees or officers of or consultants to any member of the
Group during the Pre-Completion Period exceeds the sum of
(pound)180,000 the Consideration shall be reduced by the amount of
the excess.
7.5 If any Putford Vessel has been sold by the Company in the
Pre-Completion Period and the sale price is less than the value set
opposite the name of that Putford Vessel the Consideration shall be
reduced by the aggregate of the amount of the deficiency and the
amount of any tax chargeable on the disposal.
7.6 If any other fixed assets of the Group have been sold in the
Pre-Completion Period and the sale price is less than the value
attributed to it in the Accounts the Consideration shall be reduced
by the aggregate of the amount of the deficiency and the tax
chargeable on disposal before taking into account any available
reliefs.
7.7 If during the Pre-Completion Period any of the Putford Vessels has
been lost or destroyed or damaged beyond repair and the amount of
any insurance claim in respect thereof agreed by the insurer is
less than the value set opposite the name of that Putford Vessel
the Consideration shall be reduced by the amount of the deficiency.
7.8 Period any other fixed assets of the Group has been lost, destroyed
or damaged beyond repair and the amount of any insurance claim in
respect thereof agreed by the insurers is less than the value
attributed to it in the Accounts the Consideration shall be reduced
by the amount of the deficiency.
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7.9 The Consideration may be reduced in accordance with the provisions
of the A Loan Notes.
7.10 Any reduction in the Consideration pursuant to any of the
sub-clauses of this Clause 7 shall be without prejudice to and in
addition to any reduction pursuant to any of the other sub-clauses
of this Clause 7.
7.11 Any reduction in the Consideration pursuant to any of the
provisions of the sub-clauses of this Clause 7 shall be paid out of
the Retention and if and to the extent that the Retention is
insufficient may be set off against payments due under the A Loan
Notes or the B Loan Notes and the Vendors shall be severally liable
(in the proportions set out in column 4 of Schedule 1 to pay the
Purchaser the amount of any reduction in the Consideration pursuant
to any of the sub-clauses of this Clause 7 which they have received
as an overpayment of the Consideration.
8. CONSIDERATION SHARES, A LOAN NOTES AND B LOAN NOTES
8.1 The Purchaser warrants that:-
8.1.1 the Consideration Shares to be delivered by the Purchaser to the
Vendors under this Agreement have been duly authorised and when
delivered as provided herein will be validly issued, fully paid and
non-assessable;
8.1.2 the Consideration Shares have all of the rights ascribed thereto by
the Purchaser's Certificate of Incorporation and the holders of
outstanding shares of capital stock of the Purchaser are not
entitled to preemptive or other rights to subscribe for or purchase
the Consideration Shares.
8.2 Each Vendor acknowledges and agrees that (i) the Consideration
Shares will be issued to the Vendors without registration under the
U.S. Securities Act of 1933, as amended (the "Securities Act"), in
reliance on an applicable exemption from such registration, (ii)
the Consideration Shares may not be offered for sale, sold or
otherwise transferred except as provided in the Investment and
Registration Rights Agreement, (iii) the Vendor shall be making
certain representations, warranties and covenants relating to the
foregoing pursuant to the Investment and Registration Rights
Agreement and (iv) the A Loan Notes and the B Loan Notes will be
issued to the Vendors without registration under the Securities Act
in reliance on an applicable exemption from such registration and
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neither the A Loan Notes nor the B Loan Notes may be offered for
sale, sold or otherwise transferred in the absence of such
registration or an exemption therefrom.
8.3 Each Vendor, by reason of his business and financial experience,
has such knowledge, sophistication and experience in business and
financial matters as to be capable of evaluating the merits and
risks of the investment represented by the Consideration Shares, A
Loan Notes and B Loan Notes (collectively, the "Seacor
Securities"), is able to bear the economic risk of such investment
and is able to afford a complete loss of such investment. Each
Vendor has received Seacor's 1999 Annual Report and proxy statement
for its 2000 Annual Meeting of Stockholders and has had an
opportunity to review such materials and has been given a full
opportunity to ask questions of and to receive answers from
representatives of the Purchaser concerning the terms of the Seacor
Securities, the business of the Purchaser and such other
information as he desired in order to evaluate an investment in the
Seacor Securities, and all such questions have been answered to the
full satisfaction of such Vendor.
9. WARRANTIES
9.1 EXTENT OF WARRANTIES
In consideration of the Purchaser agreeing to purchase the Shares
on the terms contained in this Agreement, the Vendors hereby:
9.1.1 in relation to the Company and each of the Subsidiaries warrant,
represent and undertake to the Purchaser in the terms set out in
Schedule 4;
9.1.2 without restricting the rights of the Purchaser to claim damages on
any basis available to it in the event of any breach or
non-fulfilment of any of the Warranties, undertake to the Purchaser
that the Vendors will on demand pay to the Purchaser :
(a) the full amount of any shortfall or diminution in the
value of any assets of the Company or any of the
Subsidiaries or of the Business as a result of or in
relation to any act, matter thing or circumstance
constituting a breach or non-fulfilment of any of the
Warranties; and
(b) all costs, expenses and disbursements suffered or
incurred by the Purchaser, the Company, any of the
Subsidiaries or any such successor directly or
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indirectly as a result of or in relation to any breach
or non-fulfilment of any of the Warranties,
provided that any amount so payable shall be increased
so as to ensure that the net amount received by the
Purchaser or any such successor shall after Taxation
be equal to that which would have been received had
the payment and any increased payment not been subject
to Taxation.
9.2 OBLIGATION TO MAKE ENQUIRIES
Where any of the Warranties is made or given "so far as the Vendors
are aware", such Warranty shall be deemed to be given to the best
of the knowledge, information and belief individually or
collectively of any one or more of the Directors after making due
and careful enquiries into the subject matter of that warranty
before giving such warranty and the knowledge, information and
belief of any one of the Directors shall be imputed to the
remaining Vendors. In the case of the Properties, "due and careful
enquiries" within this Clause 9.2 shall not include any enquiries
of third parties or relevant authorities which would normally be
made by a prudent Purchaser direct.
9.3 INFORMATION SUPPLIED BY THE COMPANY AND SUBSIDIARIES
Any information supplied by or on behalf of the Company or on
behalf of any of the Subsidiaries (or by any officer, employee or
agent of any of them) to the Vendors or their advisers in
connection with the Warranties, the Indemnities or the Tax Deed or
the information Disclosed in the Disclosure Documents shall not
constitute a warranty, representation or guarantee as to the
accuracy of such information in favour of the Vendors and the
Vendors hereby undertake to the Purchaser to waive any and all
claims which they might otherwise have against the Company or any
of the Subsidiaries or against any officer, employee or agent of
any of them in respect of such claims but so that this shall not
preclude any Vendor from claiming against any other Vendor under
any right of contribution or indemnity to which he may be entitled.
9.4 SEPARATE AND INDEPENDENT WARRANTIES
Each of the Warranties set out in the separate paragraphs of
Schedule 4 shall be separate and independent and save as expressly
otherwise provided shall not be limited by reference to any other
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such Warranty or by anything in this Agreement, the Disclosure
Documents or the Tax Deed.
9.5 Each of the Warranties in respect of the Associated Company shall
be qualified by the expression "so far as the Vendors are aware no
enquiries having been made other than of the directors and relevant
employees of the Associated Company".
9.6 RELIANCE
The Purchaser has entered into this Agreement upon the basis of and
in reliance upon the Warranties and the Indemnities.
9.7 PURCHASER WARRANTY
The Purchaser warrants to and with the Vendors that the signature,
execution and performance of this Agreement and all ancillary
documents by the Purchaser have been duly authorised and are within
the power of the Purchaser and constitute binding obligations in
accordance with their terms.
10. LIMITATION OF VENDORS' LIABILITY
10.1 LIMITATIONS ON LIABILITY
The liability of the Vendors in respect of any claim under the
Warranties shall be limited as provided in Schedule 7 but so that
the limitations on the liability of the Vendors under this
sub-clause 10.1 and Schedule 7 shall not apply in relation to the
Warranties set out in paragraph 2.4.1 of Schedule 4.
10.2 EXCLUSIONS FROM CLAUSE 10
Notwithstanding any other provision of this Agreement, the
provisions of this Clause 10 and Schedule 7 shall not apply to any
claim:
10.2.1 made against the Vendors in the case of any fraud or dishonesty by
or on behalf of all or any of the Vendors provided that each Vendor
shall be solely responsible for his own fraudulent or dishonest
acts; or
10.2.2 made under the Indemnities.
11. INDEMNITIES
11.1 DEBTORS
If the Company or any Subsidiary does not collect in full any debt
warranted under this Agreement as collectable because:
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11.1.1 despite its reasonable endeavours it has been unable to do so in
the ordinary course of business within three months of the due
date; or
11.1.2 the debtor has gone into liquidation (within the meaning of section
247 of the Insolvency Act 1986),
an amount equal to the uncollected amount which would have been
recoverable if the debt had been collectable in full in accordance
with the warranty may be set off against the amount due under the A
Loan Notes and/or the B Loan Notes and the A Loan Notes and the B
Loan Notes may be abated accordingly.
11.2 The Vendors hereby agree to indemnify and keep indemnified the
Purchaser from and against any loss, damage, claim or expense
suffered or incurred by the Purchaser by reason of the Company at
any time during the period of 12 months preceding Completion
failing to have followed its normal dry docking or maintenance
practices in respect of the Vessels or its normal practices of
replacement of spares in respect of the Vessels or deferring any
maintenance of the Vessels which it would otherwise have carried
out in accordance with its normal practices.
12. PROTECTION OF GOODWILL
12.1 COVENANTS
As further consideration for the Purchaser agreeing to purchase the
Shares on the terms contained in this Agreement and with the intent
of assuring to the Purchaser the full benefit and value of the
goodwill and connections of the Group and as a constituent part of
the sale of the Shares, each Vendor Director hereby undertakes to
the Purchaser (contracting for itself and on behalf of the Company
and of each of the Subsidiaries and for any successor in title to
the Shares or to part or all of the Business) that (except as a
director or employee of the Company or of any of the Subsidiaries
or with the written consent of the Purchaser) he shall not whether
on his own behalf or with or on behalf of any person and whether
directly or indirectly by any or person or business controlled by
them or any Connected Person:
12.1.1 For a period of 2 years from Completion carry on or be employed,
engaged, concerned, interested or in any way assist within the
United Kingdom any business which may in any way be in competition
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with all or part of the Business provided that nothing in this
sub-clause 12.1.1 shall prevent a Vendor Director from holding for
investment purposes only any units of an authorised unit trust
and/or not more than five % of any class of the issued share or
loan capital of any company quoted on a recognised investment
exchange (as defined in the Financial Services Act 1986);
12.1.2 For a period of 2 years from Completion canvass, solicit or
approach or cause to be canvassed, solicited or approached (in
relation to a business which may in any way compete with all or
part of the Business) the custom of any person who at any time
during the 12 months preceding Completion shall have been a client
or customer or joint venture partner of the Company or of any of
the Subsidiaries;
12.1.2 For a period of 2 years from Completion in relation to a business
which may in any way compete with all or part of the Business
provide or seek to provide services to any person who at any time
during the 12 months preceding Completion shall have been a client
or customer or joint venture partner of the Company or of any of
the Subsidiaries;
12.1.4 For a period of 2 years from Completion interfere or seek to
interfere or take such steps as may interfere with supplies to the
Company and/or any of the Subsidiaries from any suppliers who shall
have been supplying goods or services to the Company or to any of
the Subsidiaries for use in connection with the Business at any
time during the period of 12 months prior to the date of
Completion;
12.1.5 For a period of 2 years from Completion offer employment to or
employ or offer to conclude any contract of services with employees
of the Company or of any of the Subsidiaries employed in a
managerial, supervisory or sales capacity or procure or facilitate
the making of such an offer by any person, firm or company or
entice or endeavour to entice any such employees of the Company or
of any of the Subsidiaries to terminate their employment with the
Company or any of the Subsidiaries; or
12.1.6 at any time after Completion use as a trade or business name or
mark or carry on a business under a title containing the word(s)
"Putford" or "Boston Putford" or "BPOS" or any other word(s) which
is(are) deliberately calculated to resemble the same.
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<PAGE>
Each undertaking contained in this sub-clause 12.1 shall be read
and construed independently of the other undertakings herein as an
entirely separate and severable undertaking.
12.2 Each Non Director Vendor hereby undertakes to the Purchaser
(contracting as aforesaid) in the terms of Clause 12.1.6 and on the
basis of the first paragraph of Clause 12.1.
12.3 SEVERABILITY OF COVENANTS
Whilst the undertakings in sub-clause 12.1 and sub-clause 12.2 are
considered by the parties to be reasonable in all the
circumstances, if any one or more should for any reason be held to
be invalid but would have been held to be valid if part of the
wording thereof was deleted or the period thereof reduced or the
range of activities or area covered thereby reduced in scope, the
said undertakings shall apply with the minimum modifications
necessary to make them valid and effective.
13. ANNOUNCEMENTS
13.1 RESTRICTIONS ON ANNOUNCEMENTS
No press conference, announcement or other communication concerning
the transactions referred to in this Agreement, shall be made or
despatched by the Vendors on the one hand or the Purchaser on the
other hand or their agents, employees or advisers to any third
party without the prior written consent of Purchaser or the
Vendors' Representative (as the case may be) save as may be
required by law or any regulatory authority or the SEC.
13.2 TIME LIMIT
The restrictions contained in this Clause 13 shall continue to
apply after Completion without limit in time.
14. FURTHER ASSURANCE
The Vendors shall, from time to time on being reasonably required
to do so by the Purchaser, now or at any time in the future, do or
procure the doing of all such acts and/or execute or procure the
execution of all such documents in a form reasonably satisfactory
to the Purchaser as the Purchaser may reasonably consider necessary
for giving full effect to this Agreement and securing to the
Purchaser the full benefit of the rights, powers and remedies
conferred upon the Purchaser in this Agreement at the cost and
expense of the Vendors.
27
<PAGE>
15. ASSIGNMENT
15.1 LIMITED ASSIGNMENT
No party may assign the benefit of this Agreement whether
absolutely or by way of security except (in the case of the
Purchaser only) by way of an absolute assignment (subject to the
provisions of Schedule 7) and any purported assignment in
contravention of this clause shall be ineffective.
15.2 SUCCESSORS IN TITLE
Subject to sub-clause 15.1, this Agreement shall be binding upon
and enure for the benefit of the personal representatives and
assigns and successors in title of each of the parties and
references to the parties shall be construed accordingly.
16. ENTIRE AGREEMENT: REMEDIES
16.1 ENTIRE AGREEMENT
16.1.1 This Agreement together with the Tax Deed and any other documents
in agreed terms constitutes the whole and only agreement between
the parties relating to the subject matter hereof and supersedes
and extinguishes any prior drafts, previous agreements,
undertakings, representations, warranties and arrangements of any
nature whatsoever, whether or not in writing between the parties,
in connection with the subject matter hereof.
16.1.2 The Purchaser agrees and acknowledges that it does not enter into
this Agreement in reliance on any warranty, representation,
undertaking, stipulation or agreement other than those contained in
this Agreement.
16.2 REMEDIES
16.2.1 Subject to Clause 16.2.2 and Schedule 7, the rights of the
Purchaser under this Agreement are independent, cumulative and
without prejudice to all other rights available to it whether as a
matter of common law, statute, custom or otherwise.
16.2.2 The Purchaser agrees and acknowledges that its only remedies in
respect of any matter which renders any of the Warranties incorrect
or inconsistent with any of them are in breach of contract in
respect of the Warranties concerned.
16.2.3 The Purchaser further agrees and acknowledges that it has no right
to rescind this Agreement either for breach of contract or for
negligent or innocent misrepresentation.
28
<PAGE>
16.2.4 Without prejudice to the generality of the foregoing, the Purchaser
waives any right or remedy it may have against the Vendors in
respect of any statement (whether oral or written) of fact or
opinion whatsoever, including any untrue or misleading statement,
Warranty or representation, expressed or implied, made to the
Purchaser or its agents, officers or employees during the
negotiation of or otherwise in connection with this Agreement save
for any Warranty, representation or undertaking expressly contained
in this Agreement.
16.3 NON-EXCLUSION OF FRAUD
Nothing in this Agreement, the Tax Deed or any other document in
agreed terms shall be read or construed as excluding any liability
or remedy as a result of fraud.
17. WAIVER, VARIATION AND RELEASE
17.1 NO WAIVER BY OMISSION, DELAY OR PARTIAL EXERCISE
No omission to exercise or delay in exercising on the part of any
party to this Agreement any right, power or remedy provided by law
or under this Agreement shall constitute a waiver of such right,
power or remedy or any other right, power or remedy or impair such
right, power or remedy. No single or partial exercise of any such
right, power or remedy shall preclude or impair any other or
further exercise thereof or the exercise of any other right, power
or remedy provided by law (as allowed by this Agreement) or under
this Agreement.
17.2 SPECIFIC WAIVERS TO BE IN WRITING
Any waiver of any right, power or remedy under this Agreement must
be in writing and may be given subject to any conditions thought
fit by the grantor. Unless otherwise expressly stated, any waiver
shall be effective only in the instance and only for the purpose
for which it is given.
17.3 VARIATIONS TO BE IN WRITING
No variation to this Agreement shall be of any effect unless it is
agreed in writing and signed by or on behalf of each party.
17.4 NON-RELEASE OF ALL VENDORS
Any liability to the Purchaser under this Agreement or under the
Tax Deed (when executed) may in whole or in part be released,
compounded or compromised or time or indulgence given by the
Purchaser in its absolute discretion as regards any of the Vendors
29
<PAGE>
under such liability without in any way prejudicing or affecting
its rights against any other or others of the Vendors under the
same or like liability, whether joint or several or otherwise.
18. COSTS AND EXPENSES
18.1 PAYMENT OF COSTS
Save as otherwise stated in this Agreement, each party shall pay
its own costs and expenses in relation to the negotiation,
preparation, execution and carrying into effect of this Agreement.
18.2 COMPANY AND SUBSIDIARIES TO PAY NO COSTS
For the avoidance of doubt, neither the Company nor any of the
Subsidiaries shall pay any legal or other professional charges and
expenses in connection with any investigation of the affairs of the
Group or the negotiation, preparation, execution and carrying into
effect of this Agreement.
19. PAYMENTS
Save as envisaged in paragraph 18 of Schedule 7, all payments to be
made under this Agreement and/or the Tax Deed and/or the A Loan
Notes and/or the B Loan Notes shall be made in full without any
set-off or counterclaim and free from any deduction or withholding
save as may be required by law in which event such deduction or
withholding shall not exceed the minimum amount which it is
required by law to deduct or withhold and the payer will
simultaneously pay to the payee such additional amounts as will
result in the receipt by the payee of a net amount equal to the
full amount which would otherwise have been receivable had no such
deduction or withholding been required.
20. NOTICES
20.1 FORM OF NOTICES
Any communication to be given in connection with the matters
contemplated by this Agreement shall except where expressly
provided otherwise be in writing and shall either be delivered by
hand or sent by first class pre-paid post or facsimile
transmission. Delivery by courier shall be regarded as delivery by
hand.
30
<PAGE>
20.2 ADDRESS AND FACSIMILE
Such communication shall be sent to the address of the relevant
party referred to in this Agreement (save that notices to the
Purchaser shall be sent to 1370 Avenue of the Americas, 25th Floor,
New York, NY 10019) or the facsimile number set out below or to
such other address or facsimile number as may previously have been
communicated to the other party in accordance with this clause.
Each communication shall be marked for the attention of the
relevant person.
Purchaser - facsimile number: 001 212 582 8522. For the attention
of Randall Blank.
Copies to:-
Alice Gran - 9 Grays Inn Square, London WC1R 5JF, facsimile number:
020 7404 1301
Purchaser's Solicitors (for the attention of S.M. Alais) -
facsimile number: 020 7831 7454
20.3 DEEMED TIME OF SERVICE
A communication shall be deemed to have been served:
20.3.1 if delivered by hand at the address referred to in sub-clause 20.2,
at the time of delivery;
20.3.2 if sent by first class pre-paid post to the address referred to in
sub-clause 20.2, at the expiration of two clear days after the time
of posting; and
20.3.3 if sent by facsimile to the number referred to in sub-clause 20.2,
at the time of completion of transmission by the sender.
If a communication would otherwise be deemed to have been delivered
outside normal business hours in the time zone of the territory of
the recipient under the preceding provisions of this clause, it
shall be deemed to have been delivered at the next opening of such
business hours in the territory of the recipient.
20.4 PROOF OF SERVICE
In proving service of the communication, it shall be sufficient to
show that delivery by hand was made or that the envelope containing
31
<PAGE>
the communication was properly addressed and posted as a first
class pre-paid letter or that the facsimile was despatched and a
confirmatory transmission report received.
20.5 CHANGE OF DETAILS
A party may notify the other parties to this Agreement of a change
to its name, relevant person, address or facsimile number for the
purposes of sub-clause 20.1 Provided that such notification shall
only be effective on:
20.5.1 the date specified in the notification as the date on which the
change is to take place; or
20.5.2 if no date is specified or the date specified is less than five
clear Business Days after the date on which notice is deemed to
have been served, the date falling five clear Business Days after
notice of any such change is deemed to have been given.
20.6 NOTICE TO VENDORS
Notice given to the Vendors' Representative shall be deemed to be
notice to all of the Vendors. Any notice to be given by the Vendors
shall be sufficiently given on behalf of them all by the Vendors'
Representative.
20.7 NON-APPLICABILITY TO PROCEEDINGS
For the avoidance of doubt, the parties agree that the provisions
of this Clause 20 shall not apply in relation to the service of any
writ, summons, order, judgment or other document relating to or in
connection with any Proceedings.
21. DEFAULT INTEREST
21.1 INTEREST ON LATE PAYMENT
If a party which is required to pay any sum under this Agreement
fails to pay any sum payable by it under this Agreement on the due
date for payment (the "defaulting party"), it shall pay interest on
such sum for the period from and including the due date up to the
date of actual payment (after as well as before judgment) in
accordance with this clause.
21.2 AMOUNT
The defaulting party shall pay interest at the rate which is the
aggregate of 4% per annum and the base rate from time to time of
Barclays Bank plc.
32
<PAGE>
21.3 BASIS OF PAYMENT
Interest under this clause shall accrue from day to day and shall
be paid by the defaulting party on demand.
33
<PAGE>
22. COUNTERPARTS
22.1 EXECUTION IN COUNTERPARTS
This Agreement may be executed in any number of counterparts and by
the parties on different counterparts, but shall not be effective
until each party has executed at least one counterpart.
22.2 ONE AGREEMENT
Each counterpart shall constitute an original of this Agreement but
all the counterparts shall together constitute one and the same
agreement.
23. INVALIDITY
Each of the provisions of this Agreement is severable. If any such
provision is or becomes illegal, invalid or unenforceable in any
respect under the law of any jurisdiction, the legality, validity
or enforceability in that jurisdiction of the remaining provisions
of this Agreement shall not in any way be affected or impaired
thereby.
24. AGREEMENT TO CONTINUE IN FULL FORCE AND EFFECT
This Agreement together with the Tax Deed shall to the extent that
it remains to be performed, continue in full force and effect
notwithstanding Completion.
25. CONFIDENTIALITY
25.1 PROHIBITION ON DISCLOSURE
Each of the Vendors hereby undertakes with the Purchaser that it
shall both during and after the term of this Agreement preserve the
confidentiality of, and not directly or indirectly reveal, report,
publish, disclose or transfer or use for its own or any other
purposes Confidential Information except:
25.1.1 in the circumstances set out in sub-clause 25.2;
25.1.2 to the extent otherwise expressly permitted by this Agreement; or
25.1.3 with the prior consent in writing of the party to whose affairs
such Confidential Information relates.
25.2 PERMITTED DISCLOSURES
The circumstances referred to in sub-clause 25.1.1 are:
34
<PAGE>
25.2.1 where the Confidential Information, before it is furnished to any
of the Vendors, is in the public domain;
25.2.2 where the Confidential Information, after it is furnished to any of
the Vendors, enters the public domain otherwise than as a result of
(i) a breach by any of the Vendors of its obligations in this
Clause 25 or (ii) a breach by the person who disclosed that
Confidential Information of a confidentiality obligation and any of
the Vendors is aware of such breach;
25.2.3 if and to the extent the Vendors make disclosure of the
Confidential Information to any person:
(a) in compliance with any requirement of law; or
(b) in order to obtain tax or other clearances or consents from
the Inland Revenue or other relevant taxing or regulatory
authorities.
Provided that any such information disclosable pursuant to
paragraphs (a) or (b) of sub-clause 25.2.3 shall be disclosed only
to the extent required by law and only after consultation with the
Purchaser.
25.3 NO TIME LIMIT
The restrictions contained in this clause shall continue to apply
after Completion without limit in time.
26. EMPLOYEE BONUS
26.1 The parties shall procure that the Group or the relevant employer
pays an amount which together with employers NI contributions
thereon is (pound)310,000 by way of a bonus to those employees set
out in Schedule 10 in the proportion set opposite each employee's
name as soon as practicable following Completion.
27. GOVERNING LAW AND JURISDICTION
27.1 ENGLISH LAW
This Agreement shall be governed by and construed in accordance
with English law.
35
<PAGE>
27.2 COURTS OF ENGLAND AND WALES
The parties to this Agreement irrevocably agree that, for the
exclusive benefit of the Purchaser, the courts of England shall
have jurisdiction to settle any dispute which may arise out of or
in connection with this Agreement and that accordingly any
Proceedings may be brought in such courts.
SERVICE OF PROCEEDINGS
27.3 The Purchaser irrevocably appoints the Purchaser's Solicitors as
its process agent to receive on its behalf service of any process
in any proceedings in England. Such service shall be deemed
completed on delivery to the process agent, (marked for the
attention S.M. Alais) whether or not such process is forwarded to
and received by the Purchaser. If for any reason such process agent
ceases to be able or willing to act as process agent, the Purchaser
irrevocably agrees to appoint another firm of English solicitors as
a substitute process agent and to deliver to the other parties a
copy for the new process agent's acceptance of that appointment
within 30 days of such acceptance.
AS WITNESS the hands of the parties or their duly authorised representatives on
the date first appearing at the head of this Agreement.
36
<PAGE>
SCHEDULE 1
----------
THE VENDORS
37
<PAGE>
SCHEDULE 2
----------
PART 1
------
THE COMPANY
<TABLE>
<S> <C>
1. Registered Number: 455971
2. Date of Incorporation: 23rd June 1948
3. Place of Incorporation: England and Wales
4. Address of Registered Office: 19 Dendy Road, Paignton, Devon TQ4 5DB
5. Class of Company: Private
6. Authorised Share Capital: (pound)15,005,609.90
7. Issued Share Capital: (pound)5,557.80 comprising 55,578 A
ordinary shares of 10p each
8. Loan Capital: None
9. Accounting Reference Date: 31st December
10. Directors:
Full Name Usual Residential Address Nationality
George Alfred Evanger, Broadview Road British
Catchpole Oulton Broad
Lowestoft, Suffolk NR32 3PL
Peter Frederick Waterfront, 9 Romany Road, British
Catchpole Oulton Broad, Lowestoft,
Suffolk NR32 3PJ
Richard George Waveney House, Priory Road, British
Catchpole St Olaves, Great Yarmouth
Norfolk NR31 9HQ
Robert Frederick Kessett, Broadview Road, British
Catchpole Oulton Broad, Lowestoft,
Suffolk NR32 3PL
38
<PAGE>
John Keith Oaklands, Priory Road, British
Cowan St Olaves, Great Yarmouth
Norfolk NR31 9HQ
John Randolph The Grove, Frostenden Wangford, British
Hashim Beccles, Suffolk NR34 8BS
Paul Randolph The Grove, Frostenden British
Hashim Beccles, Suffolk NR34 8BS
Simon John Odinhahl, Church Lane, British
Hashim Uggeshall, Beccles,
Suffolk NR34 8BH
Norwood Ian 58 Corton Road, Lowestoft, British
Palmer Suffolk NR32 4PP
Dorothy Rainey The Millers House, British
53 Staithe Road, Bungay,
Suffolk NR35 1EU
Pauline Gillian 16 Oulton Street, Oulton Village, British
Watson Lowestoft, Suffolk NR32 3BB
11. Secretary:
Full Name Usual Residential Address
Pauline Gillian 6 Farnham Close, Oulton Broad
Watson Lowestoft, Suffolk NR32 4SJ
12. Auditors: Bishop Fleming
50 The Terrace, Torquay, Devon TQ1 1DD
13. Bankers: Barclays Bank plc
61 London Road North, Lowestoft,
Suffolk NR32 1LT
</TABLE>
39
<PAGE>
PART 2
------
THE SUBSIDIARIES
<TABLE>
<S> <C>
1. Name of Subsidiary: Boston Putford Offshore Safety Limited
2. Registered Number: 1156004
3. Date of Incorporation: 9th January 1974
4. Place of Incorporation: England and Wales
5. Address of Registered Office: 19 Dendy Road, Paignton, Devon TQ4 5DB
6. Class of Company: Private
7. Authorised Share Capital: (pound)100,000
8. Issued Share Capital: (pound)1,000 comprising 1,000 ordinary
shares of(pound)1 each
Held by: Putford Enterprises Limited
9. Loan Capital:
10. Accounting Reference Date: 31st December
11. Directors:
Full Name Usual Residential Address Nationality
Robert Frederick Kessett, Broadview Road, British
Catchpole Oulton Broad, Lowestoft,
Suffolk NR32 3PL
John Keith Oaklands, Priory Road, British
Cowan St Olaves, Great Yarmouth
Norfolk NR31 9HQ
Simon John Odinhahl, Church Lane, British
Hashim Uggeshall, Beccles,
Suffolk NR34 8BH
40
<PAGE>
Norwood Ian 58 Corton Road, Lowestoft, British
Palmer Suffolk NR32 4PP
Paul Jonathan 7 Old Farm Road, Carlton Colville British
Willis Lowestoft, Suffolk NR33 8RR
12. Secretary:
Full Name Usual Residential Address
Pauline Gillian 16 Oulton Street, Oulton Village,
Watson Lowestoft, Suffolk NR32 3BB
13. Auditors: Bishop Fleming
50 The Terrace, Torquay, Devon TQ1 1DD
14. Bankers: Barclays Bank plc
61 London Road North, Lowestoft,
Suffolk NR32 1LT
</TABLE>
41
<PAGE>
<TABLE>
<S> <C>
1. Name of Subsidiary: Southern Crewing Services Limited
2. Registered Number: 2858994
3. Date of Incorporation: 4th October 1993
4. Place of Incorporation: England and Wales
5. Address of Registered Office: 19 Dendy Road, Paignton, Devon TQ4 5DB
6. Class of Company: Private
7. Authorised Share Capital: (pound)100
8. Issued Share Capital: (pound)2 comprising 2 ordinary shares of(pound)1 each
Held by: Boston Putford Offshore Safety Limited
9. Loan Capital:
10. Accounting Reference Date: 31st December
11. Directors:
Full Name Usual Residential Address Nationality
Simon John Odinhahl, Church Lane, British
Hashim Uggeshall, Beccles,
Suffolk NR34 8BH
Norwood Ian 58 Corton Road, Lowestoft, British
Palmer Suffolk NR32 4PP
12. Secretary:
Full Name Usual Residential Address
Pauline Gillian 16 Oulton Street, Oulton Village,
Watson Lowestoft, Suffolk NR32 3BB
42
<PAGE>
13. Auditors: Bishop Fleming
50 The Terrace, Torquay, Devon TQ1 1DD
14. Bankers: Barclays Bank plc
61 London Road North, Lowestoft,
Suffolk NR32 1LT
</TABLE>
43
<PAGE>
<TABLE>
<S> <C>
1. Name of Subsidiary: Warbler Shipping Limited
2. Registered Number: 986544
3. Date of Incorporation: 10th August 1970
4. Place of Incorporation: England and Wales
5. Address of Registered Office: 19 Dendy Road, Paignton, Devon TQ4 5DB
6. Class of Company: Private
7. Authorised Share Capital: (pound)1,000
8. Issued Share Capital: (pound)750 comprising 7,501 ordinary shares of 10p each
Held by: Putford Enterprises Limited
9. Loan Capital:
10. Accounting Reference Date: 31st December
11. Directors:
Full Name Usual Residential Address Nationality
George Alfred Evanger, Broadview Road British
Catchpole Oulton Broad
Lowestoft, Suffolk NR32 3PL
Peter Frederick Waterfront, 9 Romany Road, British
Catchpole Oulton Broad, Lowestoft,
Suffolk NR32 3PJ
John Randolph The Grove, Frostenden Wangford, British
Hashim Beccles, Suffolk NR34 8BS
Paul Randolph The Grove, Frostenden British
Hashim Beccles, Suffolk NR34 8BS
44
<PAGE>
Simon John Odinhahl, Church Lane, British
Hashim Uggeshall, Beccles,
Suffolk NR34 8BH
12. Secretary:
Full Name Usual Residential Address
Pauline Gillian 16 Oulton Street, Oulton Village,
Watson Lowestoft, Suffolk NR32 3BB
13. Auditors: Bishop Fleming
50 The Terrace, Torquay, Devon TQ1 1DD
14. Bankers: Barclays Bank plc
61 London Road North, Lowestoft,
Suffolk NR32 1LT
</TABLE>
45
<PAGE>
PART 3
------
ASSOCIATED COMPANY
<TABLE>
<S> <C>
1. Name of Associated Company: West Coast Standby Limited
2. Registered Number: SC156269
3. Date of Incorporation: 1st March 1995
4. Place of Incorporation: Scotland
5. Address of Registered Office: 207 Albert Quay, Aberdeen, SB9 FS
6. Class of Company: Private
7. Authorised Share Capital: (pound)100,000
8. Issued Share Capital: (pound)100 comprising 50 A Ordinary Shares of(pound)1 each and 50 B Ordinary
Shares of(pound)1 each
Held by: Boston Putford Offshore Safety Limited - 50 B Shares
North Star Shipping (Aberdeen) Limited - 50 A Shares
9. Loan Capital:
10. Accounting Reference Date: 30th April
11. Directors:
Full Name Usual Residential Address Nationality
Callum Bruce 9 Oldfold Avenue, Milltimber, British
Aberdeen, Scotland AB1 OXJ
James Douglas Birchwood, 6 Hillhead Road, British
Craig Bieldside, Aberdeen, Scotland
AB15 9EJ
Simon John Odinhahl, Church Lane, British
Hashim Uggeshall, Beccles,
Suffolk NR34 8BH
46
<PAGE>
Patrick Lynch 7a Baillieswells Road, Bieldside, British
Aberdeen, Scotland AB1 9BB
Ian Norwood 41 Station Road South, Belton, British
Palmer Great Yarmouth, Norfolk NR31 9JG
Paul Jonathan 7 Old Farm Road, Carlton Colville, British
Willis Lowestoft, Suffolk NR33 8RR
12. Secretary:
Full Name Usual Residential Address
Ledingham 1 Golden Square, Aberdeen,
Chalmers Scotland AB10 1HA
13. Auditors: KPMG, Aberdeen
14. Bankers: Clydesdale Bank plc
</TABLE>
47
<PAGE>
SCHEDULE 3
----------
PART 1
------
PROPERTIES
----------
<TABLE>
<CAPTION>
=========================== ========== ============== ======================== ===================================================
DESCRIPTION OF PROPERTY TENURE REGISTERED OR TITLE NO AND GRADE OR EXISTING USE
UNREGISTERED TITLE (IF REGISTERED)
- --------------------------- ---------- -------------- ------------------------ ---------------------------------------------------
<S> <C> <C> <C> <C>
(1) (2) (3) (4) (5)
- --------------------------- ---------- -------------- ------------------------ ---------------------------------------------------
The Sea View Freehold Unregistered Offices
Battery Green Road
Lowestoft
- --------------------------- ---------- -------------- ------------------------ ---------------------------------------------------
Columbus Buildings Freehold Registered SK77755: Title absolute Offices
Waveney Road
Lowestoft
- --------------------------- ---------- -------------- ------------------------ ---------------------------------------------------
Land on the north side of Freehold Registered SK63647: Title absolute Engineering workshop and stores with ancillary
Commercial Road offices, changing room and canteen
Lowestoft
- --------------------------- ---------- -------------- ------------------------ ---------------------------------------------------
Land and buildings on the Freehold Registered SK64018: Title absolute The repair and maintenance of fast rescue boats
north side of (with ancillary office and canteen); as a workshop
Commercial Road for outboard engines; section used by maintenance
Lowestoft fitters (with ancillary office and canteen);
labourers store area; rescue boats stored in yard
=========================== ========== ============== ======================== ===================================================
</TABLE>
48
<PAGE>
SCHEDULE 3
----------
PART 2
------
LEASES
------
<TABLE>
<CAPTION>
=============== ======== ========================================== ============================== =================== =============
PROPERTY DATE TERM PARTIES CURRENT YEARLY RENT EXISTING USE
- --------------- -------- ------------------------------------------ ------------------------------ ------------------- -------------
(1) (2) (3) (4) (5) (6)
<S> <C> <C> <C> <C> <C>
- --------------- -------- ------------------------------------------ ------------------------------ ------------------- -------------
Former S & T 14/11/91 Lease may be determined on either party The British Railways Board (1) (pound)900 Skip yard for
Accommodation giving six months previous written notice Putford Enterprises Ltd (2) storage of
Commercial Road (or by the landlord giving 14 days written rubbish taken
Lowestoft notice in limited circumstances) off ships
- --------------- -------- ------------------------------------------ ------------------------------ ------------------- -------------
Land in 2/5/84 Lease may be determined on either party The British Railways Board (1) (pound)2,500 Open storage
Commercial Road giving six months notice previous Putford Enterprises Ltd (2)
Lowestoft written notice (or by the landlord
giving 14 days written notice in limited
circumstances)
=============== ======== ========================================== ============================== =================== =============
</TABLE>
49
<PAGE>
SCHEDULE 4
THE WARRANTIES
--------------
(Note that under Clause 1.11 references herein to the Company shall be deemed to
include a corresponding reference to the Subsidiaries and the Associated Company
and each of them severally and references to the Accounts are to those of the
Company or the relevant Subsidiary or the Associated Company, as the case may
be.)
PART 1
GENERAL WARRANTIES
1. PRELIMINARY
1.1 Information
1.1.1 The facts set out in the recitals and the schedules are true and
accurate and not misleading.
1.1.2 The Disclosure Letter and the Disclosure Bundle read as a whole are
not misleading.
1.2 Power to contract
Each Vendor and Covenantor (as defined in the Tax Deed) has full
power to enter into and perform this Agreement and the Tax Deed
respectively and this Agreement constitutes, and the Tax Deed when
executed will constitute, binding obligations on each Vendor or
Covenantor (as the case may be) in accordance with their terms.
2. THE COMPANY
2.1 The particulars of the Company set out in the recitals and Schedule
2 are true and accurate.
2.2 Memorandum and articles of association
The copy of the memorandum and articles of association of the
Company which is comprised in the Disclosure Documents is true and
complete in all respects and has embodied in it or annexed to it a
copy of every such resolution and agreement as is referred to in
section 380(4), CA 85 and the Company has at all times carried on
its business and affairs in all respects in accordance with its
memorandum and articles of association and all such resolutions and
agreements.
2.3 Statutory returns
The Company has complied in all material respects with the
provisions of the Companies Acts and all returns, particulars,
resolutions and other documents required to be filed with or
50
<PAGE>
delivered to the Registrar of Companies by the Company have been
correctly and properly prepared and so filed or delivered.
2.4 Share capital
2.4.1 The Shares constitute the whole of the issued share capital of the
Company. There is no Encumbrance or any form of agreement
(including conversion rights and rights of pre-emption) on, over or
affecting the Shares or any unissued shares, debentures or other
securities of the Company and there is no agreement or commitment
to give or create any of the foregoing. No claim has been made by
any person to be entitled to any of the foregoing and no person has
the right (exercisable now or in the future and whether contingent
or not) to call for the issue of any share or loan capital of the
Company under any of the foregoing.
2.4.2 The Company has not at any time during the last twelve years:
(a) repaid, redeemed or purchased (or agreed to repay, redeem
or purchase) any of its own shares, or otherwise reduced
(or agreed to reduce) its issued share capital or any class
of it or capitalised (or agreed to capitalise) in the form
of shares, debentures or other securities or in paying up
any amounts unpaid on any shares, debentures or other
securities, any profits or reserves of any class or
description or passed (or agreed to pass) any resolution to
do so; or
(b) directly or indirectly provided any financial assistance
for the purpose of the acquisition of shares in the Company
or any holding company of the Company or for the purpose of
reducing or discharging any liability incurred in such an
acquisition whether pursuant to sections 155 and 156, CA 85
or otherwise.
2.5 Solvency
The Company has not stopped payment and is not insolvent nor unable
to pay its debts according to section 123, Insolvency Act 1986. No
order has ever been made or petition presented or resolution passed
for the winding up of the Company and no distress, execution or
other process has been levied on any of its assets. No
administrative or other receiver has been appointed by any person
over the business or assets of the Company or any part thereof, nor
has any order been made or petition presented for the appointment
of an administrator in respect of the Company.
3. CONNECTED BUSINESS
3.1 Subsidiaries
The particulars of the Subsidiaries and Associated Company set out
in Schedule 2 are true and accurate and the shares in the
Subsidiaries are held by the Company free from all Encumbrances and
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with all rights now or hereafter attaching thereto.
3.2 Connected transactions
The Company:
3.2.1 is not and has not agreed to become the holder or other owner of
any class of any shares, debentures or other securities of any
other body corporate (whether incorporated in the United Kingdom or
elsewhere) other than the Subsidiaries and the Associated Company;
3.2.2 has not agreed to become a subsidiary of any other body corporate
or under the control of any group of bodies corporate or
consortium;
3.2.3 is not and has not agreed to become a member of any partnership,
joint venture, consortium or other unincorporated association other
than a recognised trade association or agreement or arrangement for
sharing commissions or other income;
3.2.4 has no branch, place of business or substantial assets outside
England and Wales or any permanent establishment (as that
expression is defined in any relevant Order in Council made
pursuant to section 788, ICTA 1988) in any country outside the
United Kingdom; and
3.2.5 save as otherwise disclosed pursuant to paragraphs 3.2.1 to 3.2.4,
does not have any interest, legal or beneficial, in any shares or
other capital or securities or otherwise howsoever in any other
firm, company, association, venture or legal person or entity.
4. ACCOUNTS
4.1 General
The Accounts:
4.1.1 were prepared in accordance with the requirements of all relevant
statutes, with good accounting principles and practices generally
accepted at the date hereof in the United Kingdom (including the
Accounting Standards) for companies carrying on a similar business
to that of the Company and on a basis consistent with preceding
accounting periods of the Company and with the books of account of
the Company and are true and accurate in all material respects;
4.1.2 disclose a true and fair view of the assets, liabilities and state
of affairs of the Company at the Balance Sheet Date and of its
profits for the financial year ended on such date;
4.1.3 contain proper provision or reserve for bad and doubtful debts,
obsolescent or slow-moving stocks and for depreciation on fixed
assets, which provision or reserve was when made and is now
adequate;
4.1.4 contain a note of all capital commitments of the Company at the
Balance Sheet Date, which note was when made and is now adequate,
fair and not misleading;
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4.1.5 contain proper and adequate reserves or provision for all Taxation,
including deferred taxation as defined in SSAP 15 (sufficient
provision being made in a deferred taxation account for any
corporation tax on chargeable gains and balancing charges that
would arise on the sale of all fixed assets at the values
attributed to them in the Accounts);
4.1.6 disclose, note or provide for all liabilities of the Company which
were known, actual or contingent (including contingent liabilities
to customers and contingent liabilities for Taxation);
4.1.7 value the stock-in-trade at the lower of cost and net realisable
value and such stock-in-trade does not include any redundant,
obsolete or unsaleable items or any items which are the subject of
any dispute (other than minor disputes in the ordinary course of
business) with a supplier or customer;
4.1.8 reflect all the fixed and loose plant and machinery, equipment,
furniture, fittings and vehicles used by the Company at the Balance
Sheet Date and (apart from depreciation in the ordinary course of
business) their value is not less than at the Balance Sheet Date
and none has been acquired for any consideration in excess of its
net realisable value at the date of such acquisition or otherwise
than by way of a bargain at arm's length.
4.2 Stock-in-trade and work-in-progress
The basis of valuation for stock-in-trade and work-in-progress has
remained in all material respects consistent with that adopted for
the purpose of the Company's audited accounts in respect of the
beginning and end of each of the accounting periods of the Company
for the last three financial years.
4.3 Profits
The profits of the Company as shown by the Accounts have not
(except as Disclosed in them) been affected to a material extent by
inconsistencies of accounting practices, by the inclusion of
non-recurring items of income or expenditure, by transactions
entered into otherwise than on normal commercial terms or by any
other factors rendering such profits for all or any of such periods
exceptionally high or low.
4.4 Books of account
All accounts, books, ledgers, financial and other necessary records
of whatsoever kind of the Company (including all invoices and other
records required for VAT purposes):
4.4.1 have been fully, properly and accurately maintained, are in the
possession of the Company and contain true and accurate records of
all matters including those required to be entered in them by the
Companies Acts and no notice or allegation that any of the same is
incorrect or should be rectified has been received;
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4.4.2 do not contain or reflect any material inaccuracies or
discrepancies;
4.4.3 give and reflect a true and fair view of the matters which ought to
appear in them and in particular of the financial, contractual and
trading position of the Company and of its plant and machinery,
fixed and current assets and liabilities (actual and contingent),
debtors and creditors and stock-in-trade and work-in-progress; and
4.4.4 contain accurate information in accordance with generally accepted
accounting principles relating to all transactions to which the
Company has been a party and the Accounts do not overstate the
value of any asset or understate any liability of the Company at
the Balance Sheet Date.
5. POST-BALANCE SHEET DATE EVENTS
5.1 Since the Balance Sheet Date, the Company:
5.1.1 has carried on its business in the ordinary and usual course and
without entering into any transaction, assuming any liability or
making any payment not provided for in the Accounts which is not in
the ordinary course of business and without any interruption or
alteration in the nature, scope or manner of its business;
5.1.2 has not experienced any material deterioration in its financial
position or turnover or suffered any diminution of its assets by
the wrongful act of any person and the value of its net assets
(taking the value of the Putford Vessels at no less than their
value at the Balance Sheet Date) is not materially less than the
value of its net assets at the Balance Sheet Date and the Company
has not had its business or profitability materially and adversely
affected by the loss of any important customer or source of supply
or by any abnormal factor not affecting similar businesses to a
like extent and so far as the Vendors are aware there are no facts
which are likely to give rise to any such effects;
5.1.3 has not acquired or disposed of or agreed to acquire or dispose of
any assets or assumed or incurred or agreed to assume or incur any
material liabilities (actual or contingent) otherwise than in the
ordinary course of business;
5.1.4 has not declared, made or paid any dividend, bonus or other
distribution of capital or income (whether a qualifying
distribution or otherwise) other than the Pre Completion Dividend
and the Completion Dividend and (excluding fluctuations in
overdrawn current accounts with bankers) no loan or loan capital of
the Company has been repaid in whole or in part or has become due
or is liable to be declared due by reason of either service of a
notice or lapse of time or otherwise howsoever;
5.1.5 has not carried out or entered into any transaction and no other
event has occurred in consequence of which (whether alone or
together with any one or more transactions or events occurring
before, on or after the date of this Agreement) any liability of
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the Company to Taxation has arisen or will arise (or would have
arisen or would or might arise but for the availability of any
relief, allowance, deduction or credit) other than corporation tax
on the actual income (not chargeable gains or deemed income) of the
Company arising from transactions entered into in the ordinary
course of business, income tax under the PAYE system and national
insurance and social security contributions in respect of persons
employed by it since the Balance Sheet Date and VAT in respect of
taxable supplies made by it in the ordinary course of business
since the Balance Sheet Date;
5.1.6 has not made any change to the remuneration, terms of employment,
emoluments or pension benefits of any present or former director,
officer or employee of the Company who on the Balance Sheet Date
was entitled to remuneration in excess of (pound)20,000 per annum
and has not appointed or employed any additional director, officer
or employee entitled as aforesaid;
5.1.7 has received payment in full of all debts owing to the Company
shown in the Accounts (subject to any provision for bad and
doubtful debts made in the Accounts), has not released any debts in
whole or in part and has not written off debts in an amount
exceeding (pound)10,000 in the aggregate;
5.1.8 has not entered into contracts involving capital expenditure in an
amount exceeding (pound)10,000 in the aggregate;
5.1.9 has not become aware that any event has occurred which would
entitle any third party to terminate any contract or any benefit
enjoyed by it or call in any money before the normal due date
therefor;
5.1.10 has not purchased stocks in quantities or at prices materially
greater than was the practice of the Company prior to the Balance
Sheet Date;
5.1.11 has paid its creditors within the times agreed with such creditors
and does not have any debts outstanding which are overdue for
payment by more than four weeks;
5.1.12 has not borrowed or raised any money or taken any financial
facility (except such short term borrowings from bankers as are
within the amount of any overdraft facility which was available to
the Company at the Balance Sheet Date) or since the Balance Sheet
Date renegotiated or received any notice from any banker that such
banker wishes to renegotiate any overdraft facility available to
the Company at the Balance Sheet Date;
5.1.13 has not made any change to its accounting reference date and no
accounting period of the Company has ended since the Balance Sheet
Date;
5.1.14 has not made a payment or incurred an obligation to make a payment
which will not be deductible in computing trading profits for the
purposes of corporation tax or as a management expense of the
Company; and
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5.1.15 (including any class of its members) has not passed any resolution
whether in general meeting or otherwise.
6. TRANSACTIONS WITH THE VENDORS, DIRECTORS AND CONNECTED PERSONS
6.1 Loans and debts
There is not outstanding:
6.1.1 any indebtedness or other liability (actual or contingent) owing by
the Company to any Vendor or Director or any Connected Person or
owing to the Company by any Vendor or Director or any Connected
Person; or
6.1.2 any guarantee or security for any such indebtedness or liability as
aforesaid.
6.2 Arrangements with Connected Persons
6.2.1 There is not outstanding, and there has not at any time during the
last three years been outstanding, any agreement, arrangement or
understanding (whether legally enforceable or not) to which the
Company is a party and in which any Vendor or, so far as the
Vendors are aware, Director or former director of the Company or
any Connected Person is or has been interested whether directly or
indirectly.
6.2.2 The Company is not a party to nor has its profits or financial
position during the last three years been affected by any agreement
or arrangement which is not entirely of an arm's length nature.
6.3 Competitive interests
6.3.1 No Director of the Company nor any Connected Person, either
individually, collectively or with any other person or persons, has
any estate, right or interest, directly or indirectly, in any
business other than that now carried on by the Company which is or
is likely to be or become competitive with any aspect of the
Business of the Company save as registered holder or other owner of
any class of securities of any company if such class of securities
is listed on any recognised investment exchange (as defined in the
Financial Services Act 1986) and if such person (together with
Connected Persons and Affiliates) holds or is otherwise interested
in less than five % of such class of securities.
6.4 Benefits
6.4.1 No Connected Person of any Vendor, Director or former director of
the Company is entitled to or has claimed entitlement to any
remuneration, compensation or other benefit from the Company.
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7. FINANCE
7.1 Borrowings
7.1.1 Particulars of all money borrowed by the Company have been
Disclosed. The total amount borrowed by the Company from any source
does not exceed any limitation on its borrowing contained in the
articles of association of the Company or in any debenture or loan
stock trust deed or instrument or any other document executed by
the Company and the amount borrowed by the Company from each of its
bankers does not exceed the overdraft facility agreed with such
banker. The Company has no outstanding loan capital.
7.2 Debts owed to the Company
7.2.1 All debts owed to the Company are collectable in the ordinary
course of business and each such debt will realise in full its face
value within three months of its due date for payment. Neither the
Company nor the Vendors consider any of the debts owing to the
Company (but which are not yet due) to be irrecoverable in whole or
in part. The Company does not own the benefit of any debt (whether
present or future) other than debts which have accrued to it in the
ordinary course of business.
7.3 Bank accounts
7.3.1 Particulars of the balances on all the Company's bank accounts as
at a date not more than two Business Days before the date of this
Agreement have been Disclosed and the Company has no other bank
accounts. Since the date of such particulars there have been no
payments out of any such bank accounts except for routine payments
which have been Disclosed.
7.3.2 All unpresented cheques drawn by the Company have been Disclosed
and there are no such unpresented cheques drawn otherwise than in
the normal course of business.
7.4 Working capital
7.4.1 Having regard to its existing banking and other facilities, the
Company has sufficient working capital for its present
requirements.
7.5 Financial facilities
7.5.1 The Vendors have Disclosed full details and true and correct copies
of all documents relating to all debentures, acceptance lines,
overdrafts, loans or other financial facilities outstanding or
available to the Company and all Encumbrances to which any asset of
the Company is subject. Neither the Vendors nor the Company have
done anything whereby the continuance of any such facility or
Encumbrance in full force and effect might be affected or
prejudiced.
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7.6 Grants
7.6.1 Full details of all grants made to the Company in the last three
years have been disclosed. No act or transaction has been effected
in consequence whereof the Company is or may be held liable to
refund in whole or in part any investment grant, building grant,
grant under the Local Employment Acts 1970 to 1972, grant under the
Industry Acts 1971 to 1982, grant under the Industrial Development
Act 1982 or loan received by virtue of any statute or in
consequence whereof any such grant or loan for which application
has been made by it will not or may not be paid or will or may be
reduced.
7.7 Options and guarantees
7.7.1 The Company is not responsible for the indebtedness of any other
person nor party to any option or pre-emption right or any
guarantee, suretyship or any other obligation (whatever called) to
pay, purchase or provide funds (whether by the advance of money,
the purchase of or subscription for shares or other securities or
the purchase of assets or services or otherwise) for the payment
of, or as an indemnity against the consequence of default in the
payment of, any indebtedness of any other person.
7.7.2 No person other than the Company or a Subsidiary has given any
guarantee of or security for any overdraft, loan or loan facility
granted to the Company or any Subsidiary.
7.8 Payment of obligations
7.8.1 There has been no delay by the Company in the payment of any
material obligation due for payment.
8. THE PROPERTIES
8.1 General
8.1.1 The Properties comprise all the land and premises owned,
controlled, used or occupied by the Company and all the rights or
interests vested in the Company relating to any land and premises
at the date hereof and the particulars set out in Schedule 4 are
true and accurate and not misleading.
8.1.2 The Company has not:
(a) surrendered any lease, licence or tenancy to the landlord
without first satisfying itself that the landlord had good
title to accept such surrender and without receiving from
the landlord an absolute release from all liability arising
under such lease, licence or tenancy;
(b) assigned, or otherwise disposed of, any lease, licence or
tenancy without receiving a full and effective indemnity
from the assignee or transferee in respect of its liability
under such lease, licence or tenancy;
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(c) been a guarantor of a tenant's liability under any lease,
licence or tenancy; or
(d) assigned or otherwise disposed of any leasehold property in
such a way that it retains any other residual liability in
respect thereof.
8.1.3 The Company has good title to each of the Properties and has Legal
and Beneficial Title to the same.
8.1.4 The Company has in its possession or unconditionally held to its
order the documents of title relating to each of the Properties
listed in Schedule 3.
8.1.5 The Properties and title deeds relating thereto, and all fixtures
and fittings and plant, equipment and other chattels on the
Properties, are not subject to any Encumbrance or overriding
interest (as defined in section 70, Land Registration Act 1925) nor
is there any person in possession or occupation of or who has or
claims any right of any kind in respect of any of the Properties
adversely to the estate, interest, right or title therein of the
Company;
8.1.6 There are no rights, interests, covenants, restrictions,
reservations, licences or easements or so far as the Vendors are
aware any disputes or outstanding notices (whether given by a
landlord, a local authority or any other person) nor so far as the
Vendors are aware (without prejudice to the generality of the
foregoing) are there any other matters or things which adversely
affect proper use and enjoyment of any of the Properties for the
purpose of the business now being carried on at the Properties by
the Company.
8.1.7 Within the last six years there has been no dealing with any of the
Properties otherwise than at arm's length and in particular no
dealing at an undervalue which may give rise to a claim for
improper stamping or setting aside.
8.1.8 So far as the Vendors are aware none of the Properties is subject
to the payment of any outgoings other than the usual rates and in
the case of Leasehold Properties rents and other sums due under the
relevant Leases and taxes and all sums due to date in respect
thereof have been paid.
8.1.9 So far as the Vendors are aware no proposal relating to the
rateable value of any of the Properties has been determined by the
Valuation and Community Charge Tribunal or Land Tribunal and so far
as aforesaid there is no subsisting proposal to challenge the
rateable value of any of the Properties.
8.1.10 Each of the Properties so far as the Vendors are aware:
(a) enjoys access and egress over roads and footpaths
which have been adopted by the appropriate highway
authority and are maintainable at the public expense;
(b) drains foul sewage and surface water to public sewers, is
served by water, electricity, gas and telephone utilities
and either the pipes, sewers, wires, cables, conduits and
other conducting media serving the Properties connect
directly to the mains without passing through land in the
occupation or ownership of any third party or, if they do
not, each of the Properties has the benefit of all
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necessary easements and rights for the maintenance and use
thereof and such rights are held on terms which do not
entitle any person to terminate or curtail the same; and
(c) has the benefit of all other easements and rights necessary
for its proper use and enjoyment for the purposes of the
business now being carried on at the Properties by the
Company and such easements and rights are held on terms
which do not entitle any person to terminate or curtail the
same.
8.1.11 Where the Company or any predecessor in title has sold off or has
agreed to sell off land adjoining or near to any of the Properties,
there were or will be excepted and reserved to the Company (so far
as the Vendors are aware in the case of any sale by a predecessor
in title) all necessary and appropriate easements and other rights
for the benefit of the Properties.
8.1.12 The Company has not entered into any commitment (whether legally
binding or not) and the Company is not party to any subsisting
agreement with any person or company whereby a fee (including but
not limited to an abort fee) will be paid to such person or company
in respect of the management, use, development, letting or sale of
any of the Properties.
8.1.13 So far as the Vendors are aware there are no unpaid charges for the
construction or adoption of any road or sewer or other service
serving the Property.
8.2 Planning
8.2.1 In relation to each of the Properties, its existing use is the
Existing Use.
8.2.2 So far as the Vendors are aware there are no lawfully enforceable
restrictions or prohibitions which restrict or prohibit the
Existing Use of any of the Properties.
8.2.3 So far as the Vendors are aware the Existing Use of each of the
Properties is the permitted use under the Town and Country Planning
legislation (which term includes the Town & Country Planning Act
1990, the Planning (Listed Buildings and Conservation Areas) Act
1990, the Planning (Hazardous Substances) Act 1990 and the Planning
(Consequential Provisions) Act 1990) and is not a temporary or
personal use.
8.2.4 So far as the Vendors are aware all development carried out in
relation to each of the Properties relating to the relevant
Existing Use has been lawful and so far as aforesaid all necessary
consents and permissions have been obtained for such development.
8.2.5 So far as the Vendors are aware the consents and permissions
referred to in paragraph 8.2.4 are valid, subsisting and
unimpeachable and are also either unconditional or subject only to
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conditions which have been satisfied so that nothing further
remains to be done thereunder.
8.2.6 The Company is not aware of any resolution, proposal, order or act
made or contemplated for the compulsory acquisition of any of the
Properties by the local or any other authority nor any outstanding
order, notice or other requirement of any such authority that
affects the Existing Use of any of the Properties or involves
expenditure in compliance with it nor any other circumstances which
may result in any such order or notice being made or served or
which may otherwise affect any of the Properties.
8.2.7 No compensation has been received by the Company consequent upon a
refusal of any planning permission affecting any of the Properties
or the imposition of any restrictions in any such planning
permission and so far as the Vendors are aware no such planning
permission is suspended.
8.2.8 So far as the Vendors are aware none of the buildings or other
structures or erections on any of the Properties have been listed
under section 1, Planning (Listed Buildings and Conservation Areas)
Act 1990 ("PLBCA") nor so far as aforesaid has the relevant local
authority authorised the service of any building preservation
notice under section 3, PLBCA or any repairs notice under section
48, PLBCA in respect of any of the Properties or any building
structure or erection thereon nor so far as aforesaid has the
relevant local authority made or resolved to make any noise
abatement zone order under section 63, Control of Pollution Act
1974 for any of the areas in which any of the Properties are
included.
8.2.9 So far as the Vendors are aware none of the Properties is within an
area of archaeological importance nor so far as aforesaid is any
building or erection on any of the Properties a scheduled monument
within the meaning set out in the Ancient Monuments and
Archaeological Areas Act 1979.
8.3 Leasehold Properties
8.3.1 Where any of the Properties is leasehold, particulars of each lease
vested in the Company are set out in Part 2 of Schedule 4 and in
relation to each such lease:
(a) where the current annual rent is not the same as the annual
rent originally reserved in the lease, evidence
of its agreement or determination has been placed with the
documents of title and no rent reviews are or should be
currently under negotiation or the subject of a reference
to an expert or arbitrator or the courts;
(b) no notices of breaches of any covenants or conditions
contained in the lease have been given or received on the
part of either the landlord or the Company and the landlord
has not refused to accept rent or made any complaint of
breach of covenant;
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(c) no alterations, improvements or additions have been made to
the Property to which the lease relates since the grant of
the lease or in respect of all such alterations,
improvements or additions made all necessary consents and
approvals have first been obtained;
(d) sections 24 to 28, Landlord and Tenant Act 1954 have not
been excluded; (e) no surety has been released either
expressly or by implication.
8.4 Inferior leases
8.4.1 No Property is subject to any lease, tenancy agreement or right of
occupation in favour of a third party.
8.5 Statutory compliance
So far as the Vendors are aware the Company is not in breach of and
has not received notice of and is not aware of any allegation of
breach of the requirements of:
the Shops Act 1950 and 1965
the Clean Air Act 1993
the Construction (Design and Management) Regulations 1995
the Factories Act 1961
the Offices, Shops and Railway Premises Act 1963
the Fire Precautions Act 1971
the Health and Safety at Work etc. Act 1974
the Control of Pollution Act 1974
the Planning (Hazardous Substances) Act 1990
the Public Health Acts
or other legislation in force at the date of Completion concerning
health or safety matters or any regulations, orders, notices or
directions made under any of such legislation which affects any of
the Properties.
8.5.1 Where required, a fire certificate has been issued in respect of
each of the Properties and so far as the Vendors are aware each of
the Properties complies in all respects with current fire
regulations and the current requirements of the insurers of the
Properties.
8.6 Condition and repair
8.6.1 So far as the Vendors are aware without having a survey or making
enquiry of a third party there are (and there have been) no
structural defects in respect of the buildings and structures on or
comprising any of the Properties and all such buildings and
structures are in good repair and condition fair wear and tear
excepted.
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9. ENVIRONMENTAL
9.1 Compliance with Environmental Law
The Properties have been used, and the Business has been conducted,
at all material times in compliance with Environmental Law.
9.2 Permits
9.2.1 All Permits have been obtained and have been disclosed to the
Purchaser and are in full force and effect and their terms and
conditions have been complied with. No Permits are limited in
duration or subject to onerous conditions.
9.2.2 No circumstance exists which may or is liable to result in the
modification, suspension, or revocation of any Permit or may or is
likely to result in any such Permit not being extended, renewed,
granted or (where necessary) transferred and no Environmental Law
currently adversely affects the use of any of the Properties or the
conduct of the Business to a material degree.
9.2.3 No significant repairs, remedy, construction, or capital
expenditure is required under any Environmental Law in order to
carry on lawfully the Business at the Property.
9.3 Hazardous Matter
No Hazardous Matter has been generated, used, kept, treated,
transported, spilled, deposited, disposed of, discharged, emitted
or otherwise dealt with or managed at, on, under or from any of the
Properties in a manner likely to cause significant Harm to the
Environment.
9.4 Environmental Liability
There are no events, states of affairs, conditions, circumstances,
activities, practices, incidents, or actions (including the
generation, use, treatment, storage, transport, deposit, disposal,
discharge or management of Hazardous Matter) which have occurred or
are occurring or have been or are in existence at, in, or under or
about the Property as a result of the conduct of the Business by
the Company which may or are liable to give rise to Environmental
Liability.
9.5 No storage tanks
No storage tanks of any kind, including related pipework, are or
have been located at any time whatsoever on or under any of the
Properties.
9.6 Notice of claims
At no time has the Company had knowledge of or received any notice,
claim or other communication alleging any actual or potential
Environmental Liability.
The Warranties in respect of the Properties in each sub paragraph
of this paragraph 9 in relation to any period prior to the
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Company's ownership of, or acquisition of any estate or interest in
the relevant Property are qualified by the expression "so far as
the Vendors are aware".
10. OTHER ASSETS
10.1 Title
10.1.1 The Company has Legal and Beneficial Title to all assets of the
Company which are included in the Accounts or which were at the
Balance Sheet Date used or held for the purposes of its business
and (except for assets disposed of or realised by the Company in
the ordinary course of business) the Company retains such title to
all such assets free from any Encumbrance, hire or hire purchase
agreement or leasing agreement or agreement for payment on deferred
terms and all such assets are in the possession and control of the
Company and are sited within the United Kingdom.
10.1.2 The Company has not acquired or agreed to acquire any material
fixed asset on terms that title to such asset does not pass to the
Company until full payment is made.
10.2 Encumbrances
The Company has Legal and Beneficial Title to all assets which have
been acquired by the Company since the Balance Sheet Date (except
for assets disposed of or realised by the Company in the ordinary
course of business) and the same are in the possession and control
of the Company and none is the subject of any Encumbrance nor has
the Company created or agreed to create any Encumbrance or entered
into any factoring arrangement, hire-purchase, conditional sale or
credit sale agreement which has not been disclosed and in respect
of any such Encumbrance, arrangement or agreement so disclosed
there has been no material default by the Company in the
performance or observance of any of the provisions thereof.
10.3 Condition of assets
The plant and machinery (including fixed plant and machinery) and
all vehicles and office and other equipment shown in the Accounts
or acquired since the Balance Sheet Date or otherwise used in
connection with the Business which have not been disposed of in the
ordinary course of business:
10.3.1 so far as the Vendors are aware do not contravene any requirement
or restriction having the force of law;
10.3.2 are in good repair and condition taking into account their age and
are regularly maintained, serviceable and in satisfactory working
order;
10.3.3 are each capable of doing the work for which they were designed
and/or purchased and will each be so capable (subject to fair wear
and tear) during the period of time over which the value of such
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assets will be written down to nil in the accounts of the Company;
10.3.4 are not surplus to the Company's requirements; and
10.3.5 are not dangerous, and the vehicles owned by the Company are
roadworthy and duly licensed for the purposes for which they are
used.
10.4 Rental payments
Rentals payable by the Company under any leasing, hire-purchase or
other similar agreement to which it is a party are set out in the
Disclosure Documents and have not been and are not likely to be
increased and all such rentals are fully deductible by the Company
for tax purposes.
11. LITIGATION
11.1 Litigation and arbitration proceedings
11.1.1 Save as plaintiff in the collection of debts (not exceeding
(pound)10,000 in the aggregate) arising in the ordinary course of
business, the Company is not now engaged in any litigation,
arbitration or criminal proceedings and so far as the Vendors are
aware there are no lawsuits or arbitration proceedings pending or
threatened by or against the Company or any person for whose acts
or defaults the Company may be vicariously liable.
11.1.2 The Company has not, in the last three years preceding the date of
this Agreement, been involved in any litigation, arbitration,
criminal proceedings or material dispute with any person who is or
was a supplier or customer of importance to the Company or the
Business, or where such litigation, arbitration, proceedings or
dispute resulted in adverse publicity or loss of goodwill.
11.1.3 So far as the Vendors are aware there is no matter or fact in
existence which might give rise to any legal proceedings or
arbitration involving the Company including any which might form
the basis of any criminal prosecution against the Company.
11.2 Injunctions, etc.
No injunction or order for specific performance has been granted
against the Company.
11.3 Orders and judgments
The Company is not subject to any order or judgment given by any
court or governmental agency which is still in force and has not
given any undertaking to any court or to any third party arising
out of any legal proceedings.
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12. LICENCES
12.1 General
The Company has all necessary licences (including statutory
licences), permits, consents and authorities (public and private)
for the proper and effective carrying on of the Business and in the
manner in which the Business is now carried on and all such
licences, permits, consents and authorities are valid and
subsisting and the Vendors know of no reason why any of them should
be suspended, cancelled or revoked whether in connection with the
sale to the Purchaser or otherwise and, so far as the Vendors are
aware, there are no factors that might in any way prejudice the
continuance or renewal of any of those licences, permits, consents
or authorities and the Company is not restricted by contract from
carrying on any activity in any part of the world.
12.2 Financial Services Act 1986
The Company does not carry on, nor does it purport to carry on, nor
has it at any time since 28th April, 1988 carried on, or purported
to carry on, investment business in the United Kingdom within the
meaning of section 3, Financial Services Act 1986 nor has it
contravened any provision of such Act.
12.3 Data Protection Act 1998
12.3.1 The Company has registered or applied to register itself under the
Data Protection Act 1998 in respect of all registrable personal
data held by it, and all due and requisite fees in respect of such
registrations have been paid.
12.3.2 The details contained in such registrations or applications are
proper and suitable for the purpose(s) for which the Company holds
or uses the personal data which are the subject of them, and the
contents of all such registrations or applications have been made
available to the Purchaser.
12.3.3 All personal data held by the Company has been held in accordance
with the data protection principles and there has been no
unauthorised disclosure of such personal data.
12.3.4 There are no outstanding enforcement, deregistration or transfer
prohibition notices or any other nature of notice under the Data
Protection Act 1998 currently outstanding against the Company, nor
is there any outstanding appeal against such notices. The Vendors
are not aware of any circumstances which may give rise to the
giving of any such notices to the Company.
12.3.5 There are no unsatisfied requests to the Company made by data
subjects in respect of personal data held by the Company, nor any
outstanding applications for rectification or erasure of personal
data.
12.3.6 There are no outstanding claims for compensation for inaccuracy,
loss or unauthorised disclosure of personal data nor is any
personal data held by the Company inaccurate, nor has the Company
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lost or made any unauthorised disclosure of any such data.
12.3.7 Without prejudice to the specific provisions above, the Company and
its employees have complied in all material respects with the
requirements of the Data Protection Act 1998.
13. TRADING
13.1 Tenders, etc.
No offer, tender or the like is outstanding (the value of which to
the Company could exceed (pound)100,000 in any year) which is
capable of being converted into an obligation of the Company by an
acceptance or other act of some other person.
13.2 Delegation of powers
There are in force no powers of attorney given by the Company other
than to the holder of an encumbrance solely to facilitate its
enforcement nor any other authority (express, implied or
ostensible) given by the Company to any person to enter into any
contract or commitment or do anything on its behalf other than any
authority of employees to enter into routine trading contracts in
the normal course of their duties.
13.3 Consequence of acquisition of Shares by Purchaser The acquisition
of the Shares by the Purchaser or compliance with the terms of this
Agreement will not:
13.3.1 so far as the Vendors are aware (without having made any enquiry in
this regard) cause the Company to lose the benefit of any right or
privilege it presently enjoys or cause any person who normally does
business with the Company not to continue to do so on the same
basis as previously;
13.3.2 legally entitle any person to determine any contractual obligation
to the Company or any right or benefit enjoyed by the Company or to
exercise any right under an agreement with the Company;
13.3.3 conflict with or result in the breach of or constitute a default
under any of the terms, conditions or provisions of any agreement
or instrument to which the Company is now a party or any loan to or
mortgage created by the Company or of its memorandum or articles of
association;
13.3.4 result in any present indebtedness of the Company becoming due and
payable or capable of being declared due and payable prior to its
stated maturity;
13.3.5 so far as the Vendors are aware (without having made any enquiry in
this regard) cause any director, officer or senior employee of the
Company to leave his employment with the Company.
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13.4 Guarantees and warranties
The Company has not given any guarantee or warranty or made any
representation in respect of articles or trading stock, sold or
contracted to be sold by it, save for any warranty or guarantee
implied by law and (save as aforesaid) has not accepted any
liability or obligation to service, maintain, repair, take back or
otherwise do or not do anything in respect of any articles or stock
that would apply after any such article or stock has been delivered
by it.
13.5 Fair trading, etc.
The Company is not and has not been party to or directly or
indirectly concerned in any agreement, arrangement, understanding
or practice (whether or not legally binding) or in the pursuit of
any course of conduct which is:
13.5.1 registrable under the notifiable under the Competition Act 1998 or
capable of giving rise to an investigation by the Director General
of Fair Trading or a reference to the Monopolies and Mergers
Commission;
13.5.2 in contravention or breach of the EC Treaty, the Fair Trading Act
1973, the Consumer Credit Act 1974, the Resale Prices Act 1976, the
Trade Descriptions Act 1968, the Restrictive Trade Practices Act
1976, the Competition Act 1980, the Consumer Protection Act 1987,
the Competition Act 1998 or any regulations, orders, notices or
directions made thereunder; or
13.5.3 is otherwise registrable, unenforceable or void or renders the
Company or any of its officers liable to administrative, civil or
criminal proceedings under any anti-trust, trade regulation or
similar legislation in any jurisdiction where the Company carries
on business.
13.6 Restrictions on trading
The Company is not and has not been a party to any agreement,
arrangement, understanding or practice restricting the freedom of
the Company to provide and take goods and services by such means
and from and to such persons and into or from such place as it may
from time to time think fit.
13.7 Possession of records
13.7.1 All agreements to which the Company is a party to and which are
listed in the Disclosure Letter are in the possession of the
Company or unconditionally held to its order.
13.7.2 The Company does not have any of its records, systems, controls,
data or information recorded, stored, maintained, operated or
otherwise wholly or partly dependent on or held by any means
(including any electronic, mechanical or photographic process
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whether computerised or not) which (including all means of access
thereto and therefrom) are not under the exclusive ownership and
direct control of the Company.
13.8 Business names
The Company does not use on its letterhead, books or vehicles or
otherwise carry on the Business under any name other than its
corporate name.
13.9 Unlawful acts
Neither the Company nor any officer has been prosecuted for any
criminal, illegal or unlawful act connected with the Company.
13.10 Sensitive payments
No officer or employee of the Company has made any Sensitive
Payment in connection with any contract or otherwise. For the
purposes of this clause the expression "Sensitive Payment" (whether
or not illegal) shall include (i) commercial bribes, bribes or
kickbacks paid to any person, firm or company including central or
local government officials or employees or (ii) payments or
commitments (whether made in the form of commissions, payments or
fees for goods received or otherwise) made with the understanding
or under circumstances that would indicate that all or part thereof
is to be paid by the recipient to central or local government
officials or as a commercial bribe influence payment or kickback.
14. CONTRACTS
14.1 Onerous contracts
There are no long term contracts (that is, contracts not terminable
by the Company without penalty on six months' notice or less) or
onerous or unusual or abnormal contracts (that is, contracts for
capital commitments or contracts differing from those necessitated
by the ordinary course of business) binding upon the Company.
14.2 Material contracts
All contracts to which the Company is a party with a value in
excess of (pound)10,000 have been disclosed and the Company is not
a party to or subject to any agreement, transaction, obligation,
commitment, understanding, arrangement or liability which:
14.2.1 is known by any of the Vendors or by the Company to be likely to
result in a loss to the Company on completion of performance;
14.2.2 cannot readily be fulfilled or performed by the Company on time and
without undue or unusual expenditure of money and effort;
14.2.3 involves or is likely to involve obligations, restrictions,
expenditure or receipts of an unusual, onerous or exceptional
nature and not in the ordinary course of business;
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14.2.4 involves or is likely to involve the supply of services by or to
the Company the aggregate sales value of which will represent in
excess of ten % of the turnover of the Company for the year ended
on the Balance Sheet Date;
14.2.5 requires the Company to pay any commission, finder's fee, royalty
or the like; or
14.2.6 is in any way otherwise than in the ordinary and proper course of
the Company's business.
14.3 Performance of contracts
14.3.1 The terms of all contracts of the Company have been complied with
by the Company and by the other parties to the contracts in all
material respects and so far as the Vendors are aware there are no
circumstances likely to give rise to a default by the Company or by
the other parties under any such contract.
14.3.2 There are no outstanding claims, separately or in the aggregate, of
material amounts, against the Company on the part of customers or
other parties in respect of defects in quality or delays in
delivery or completion of contracts relating to liability for
services supplied by the Company and no such claims are threatened
or anticipated and so far as the Vendors are aware there is no
matter or fact in existence in relation to services currently
supplied by the Company which might give rise to the same.
14.3.3 The Company has no knowledge of the invalidity of or grounds for
rescission, avoidance or repudiation of any agreement or other
transaction to which the Company is a party and has received no
notice of any intention to terminate, repudiate or disclaim any
such agreement or other transaction.
14.4 Agency and distribution agreements
The Company is not a party to any subsisting agency or
distributorship agreement.
15. EMPLOYEES
15.1 Particulars of employees
The particulars shown in the schedule of employees comprised in the
Disclosure Documents are accurate and show in respect of each
Director, officer and employee of the Company his date of birth,
the date on which he commenced continuous employment with the
Company for the purposes of ERA and all remuneration payable and
other benefits provided or which the Company is bound to provide
(whether now or in the future) to each such person and include full
particulars of all remuneration arrangements (particularly profit
sharing, incentive and bonus arrangements to which the Company is a
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party whether binding or not) and each Director, officer and
employee of the Company is listed therein.
15.2 Service contracts
There is no contract of service in force between the Company and
any of its Directors, officers or employees which is not terminable
by the Company without compensation (other than any compensation
payable under Parts X and XI, ERA) on one month's notice given at
any time or otherwise in accordance with section 86, ERA except as
Disclosed. There are no consultancy or management services
agreements in existence between the Company and any other person,
firm or company, and there are no agreements or other arrangements
(binding or otherwise) between the Company or any employers' or
trade association of which the Company is a member and any Trade
Union. There are no outstanding pay negotiations with any employees
or Trade Unions.
15.3 Benefits
There are no amounts owing to present or former directors, officers
or employees of the Company other than not more than one month's
arrears of remuneration accrued or due or for reimbursement of
business expenses incurred within a period of three months
preceding the date of this Agreement and no moneys or benefits
other than in respect of remuneration or emoluments of employment
are payable to or for the benefit of any present or former
director, officer or employee of the Company, nor any dependant of
any present or former director, officer or employee of the Company.
15.4 Liabilities and payments
Save to the extent (if any) to which provision or allowance has
been made in the Accounts:
15.4.1 so far as the Vendors are aware no liability has been incurred by
the Company for breach of any contract of employment or for
services or for severance payments or for redundancy payments or
protective awards or for compensation for unfair dismissal or for
failure to comply with any order for the reinstatement or
re-engagement of any employee or for sex or race discrimination or
for any other liability accruing from the termination or variation
of any contract of employment or for services;
15.4.2 no payment has been made or promised by the Company in connection
with the actual or proposed termination, suspension or variation of
any contract of employment or for services of any present or former
director, officer or any dependant of any present or former
director, officer or employee of the Company.
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15.5 Relevant legislation
15.5.1 So far as the Vendors are aware the Company has in relation to each
of its employees (and so far as relevant to each of its former
employees) complied with:
(a) all obligations imposed on it by all relevant statutes,
regulations and codes of conduct and practice
affecting its employment of any persons and all relevant
orders and awards made thereunder and has maintained
current and adequate records regarding the service, terms
and conditions of employment of each of its employees; and
(b) all collective agreements and recognition agreements for
the time being affecting its employees or their
conditions of service.
15.5.2 The Company has not been served with any improvement and/or
prohibition notices pursuant to sections 21 and 22, Health and
Safety at Work etc. Act 1974.
15.5.3 The Company is not being prosecuted under any of such Acts:
section 21, Children and Young Persons Act 1933 sections
14, 59, 71 and 72, Shops Act 1950 section 155, Factories
Act 1961 section 33, Health and Safety at Work etc. Act
1974.
15.5.4 Within a period of one year preceding the date of this Agreement,
the Company has not given notice of any redundancies to the
Secretary of State or started consultations with any independent
trade union under the provisions of Part IV, TULRCA or under TUPE.
15.6 Termination of employment
15.6.1 No present director, officer or employee of the Company has given
or received notice terminating his employment except as expressly
contemplated under this Agreement.
15.6.2 There have been no recommendations made to the Company by the
Advisory Conciliation and Arbitration Service or awards or
declarations made by the Central Arbitration Committee in respect
of its employees.
15.7 Share and other schemes
The Company does not have in existence nor is it proposing to
introduce, and none of its directors, officers or employees
participate in (whether or not established by the Company) any
employee share trust, share incentive scheme, share option scheme
or profit sharing scheme for the benefit of all or any of its
present or former directors, officers or employees or the
dependants of any of such persons or any scheme whereunder any
present or former director, officer or employee of the Company is
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entitled to a commission or remuneration of any other sort
calculated by reference to the whole or part of the turnover,
profits or sales of the Company or any other person, firm or
company including any profit-related pay scheme established under
Chapter III, Part V, ICTA 1988.
15.8 Disputes and claims
15.8.1 No dispute exists between the Company and a material number or
category of its employees or any Trade Union(s) and so far as the
Vendors are aware there are no wage or other claims outstanding
against the Company by any person who is now or has been a
director, officer or employee of the Company.
15.8.2 The Company has not had during the last three years any strike,
work stoppages, slowdown or work-to-rule by its employees or
lock-out, nor, so far as the Vendors are aware, is any anticipated,
which has caused, or is likely to cause, the Company to be
materially incapable of carrying on its business in the normal and
ordinary course.
15.9 Transfer of undertakings
The Company has not been a party to any relevant transfer as
defined in TUPE within the period of one year preceding the date of
this Agreement.
15.10 Agreements with Trade Unions
The Company is not a party to any agreement or arrangement with or
commitment to any trade unions or staff association nor are any of
its employees members of any trades union or staff association.
16. PENSION SCHEMES
16.1 General
Particulars of all Pension Schemes have been disclosed including
true and complete copies of the following in relation to each
pension scheme:
16.1.1 Trust deeds and rules and all other deeds.
16.1.2 Booklets currently in force and any subsequent announcements to
scheme members.
16.1.3 Latest finalised actuarial valuation together with any subsequent
valuation in draft and any subsequent written actuarial advice not
included in such valuations.
16.1.4 Details of members, pensioners and deferred pensioners (including
dates of birth, sex, entry and current salary and pensionable
salary and name of employer).
16.1.5 Details of contributions by members and the employer in the last
three years.
16.1.6 List of investments.
16.1.7 Investment agreements.
16.1.8 Scheme accounts and trustee reports for the last three years.
16.1.9 Evidence of Inland Revenue approval.
16.1.10 Contracting-out certificate (if applicable).
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16.1.11 SSAP 24 disclosures in the employer's accounts for the last three
years.
16.1.12 Insurance policies and certificates and details of premiums paid.
16.1.13 Details of ex-gratia pensions and any discretionary increases in
benefits given in the last three years.
16.1.14 Details of arrangements for the selection of trustees in accordance
with sections 16 to 21 of the Pensions Act 1995 including copies of
notices to members.
16.1.15 Statement of investment principles prepared in accordance with
section 35 of the Pensions Act 1995.
16.1.16 Any correspondence with the Occupational Pensions Regulatory
Authority in relation to the Pension Scheme.
16.1.17 All letters or agreements for the appointment of professional
advisers pursuant to section 47 of the Pensions Act 1995.
16.1.18 any actuarial certificates pursuant to section 67 of the Pensions
Act 1995. Other than as disclosed there are no other Pension
Schemes for current or past directors or employees of the Company.
16.2 Benefits, discretions and funding
In relation to each Pension Scheme:
16.2.1 no power to augment benefits has been exercised;
16.2.2 no discretion has been exercised to admit an employee to membership
of the pension scheme who would not otherwise be eligible;
16.2.3 no discretion has been exercised to provide a benefit which would
not otherwise be provided;
16.2.4 all benefits (other than a refund of contributions with interest
where appropriate) payable under the pension scheme on the death of
a member while in an employment to which the pension scheme relates
or during a period of sickness or disability of a member are fully
insured by a policy with an insurance company of good repute. Each
member has been covered for insurance by the insurance company at
its normal rates and on its normal terms for persons in good health
and all premiums payable have been paid;
16.2.5 there are no contributions to the Pension Scheme which are due but
unpaid and have remained unpaid for more than one month and in any
event contributions have been paid which are at least equal to and
by the due date specified in any schedule of contributions or
payments applicable under section 58 or 87 of the Pensions Act
1995;
16.2.6 no takeover protection provision will be triggered by Completion;
16.2.7 no payment has been made out of the Pension Scheme to any
participating employer;
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16.2.8 no amendment has been made in contravention of section 67 of the
Pensions Act 1995;
16.2.9 other than benefits payable on death as disclosed, the Pension
Schemes provide only money purchase benefits within the meaning of
section 181 of the Pension Schemes Act 1993.
16.3 Administration
Each Pension Scheme:
16.3.1 is either approved by the Board of Inland Revenue for the purposes
of Chapter I of Part XIV, ICTA 1988 or is a scheme under which the
benefits provided or to be provided are consistent with the
approval of the scheme by the Board of Inland Revenue for such
purposes and is a scheme in respect of which an application for
such approval has been made and has not been withdrawn or refused
and the Board of Inland Revenue have not given notice to the
applicant that they believe the application has been dropped;
16.3.2 is established under irrevocable trusts;
16.3.3 has been administered in accordance with:
the preservation requirements under the Pension Schemes Act
1993 (the "Act"); the equal access requirements of the Act;
the contracting-out requirements of the Act (where
applicable); the Pensions Act 1995; and
all other applicable laws (including Article 119 of the EC
Treaty), regulations and requirements of any competent
governmental body or regulatory authority and the trusts
and rules of the Pension Scheme;
16.3.4 has not been the subject of any report of wrongdoing or
irregularities to the Occupational Pensions Regulatory Authority
nor, so far as the Vendors are aware, are there any circumstances
which would justify such a report;
16.3.5 is a scheme in respect of which all actuarial, consultancy, legal
and other fees, charges or expenses have been paid and for which no
services have been provided for which an account or invoice has not
been rendered; and
16.3.6 has no investment in employer-related assets as defined in section
40 of the Pensions Act 1995.
16.4 Claims
No claim has been threatened or made or litigation commenced
against the trustees or administrator of any Pension Scheme or
against the Company or any other person whom the Company is or may
be liable to indemnify or compensate in respect of any matter
arising out of or in connection with any Pension Scheme. So far as
the Company is aware there are no circumstances which may give rise
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to any such claim or litigation. There are no unresolved disputes
under the Pension Scheme's internal dispute resolution procedure.
17. INTELLECTUAL PROPERTY
17.1 Ownership and rights
17.1.1 The Intellectual Property Rights used or acquired by the Company
for the purpose of its business are (where applicable) registered
in the name of the Company and are each in the sole and exclusive
legal and beneficial ownership of the Company; in particular, the
Company has not entered into any contract relating to the licensing
or use (by it or any other person) of any Intellectual Property
Rights.
17.1.2 The processes employed and the products and services dealt in by
the Company do not use, embody or infringe any Intellectual
Property Rights vested in any other party or in which any other
party has any interest (whether under licence or otherwise) and do
not give rise (contingently or otherwise) to payment by the Company
of any royalty or of any sum in the nature of a royalty or to
liability to pay compensation under Sections 40 and 41 Patents Act
1977 or otherwise.
17.2 Infringement
17.2.1 The Company has not received any notice, and the Vendors are not
aware, that any person is infringing any of the Company's
Intellectual Property Rights.
17.2.2 The Company is not passing off any part of its business as and for
the business of any other person and, so far as the Vendors are
aware, no person is passing off its business as and for any part of
the Company's business.
18. COMPUTER SYSTEMS
18.1 Identification and ownership
18.1.1 The Computer system and software used by the Company has been
properly maintained and serviced, has not been susceptible to
significant breakdown, malfunction or failure and has at all
material times functioned in a manner which is reasonably regarded
by the Vendors as satisfactory for the running of the Business.
18.1.2 The Company has in place adequate back up arrangements to ensure
continuance of its business without loss of customers, data and
without additional expense, in the event of computer hardware or
software breakdown, malfunction or in the event of power failure.
18.1.3 All licences which the Company requires for the computer software
used by the Company in connection with the Business have been
granted to the Company and are valid and subsisting.
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19. LEGISLATION
The Company is not in material breach of and has not received
notice of and is not aware of any allegation of material breach of
the requirements of any legislation which is relevant to the
Business.
PART 2
TAXATION WARRANTIES
20. TAXATION
20.1 General
20.1.1 Notices and returns
All notices, returns, computations and registrations of the Company
for the purposes of Taxation have been made punctually on a proper
basis and are correct and none of them is, or so far as the Vendors
are aware is likely to be, the subject of any dispute with any
Taxation Authority.
20.1.2 All information supplied by the Company for the purposes of
Taxation was when supplied and remains complete and accurate in all
material respects.
20.1.3 Payment of Tax due
All Taxation which the Company is liable to pay prior to Completion
has been paid prior to Completion.
20.1.4 Penalties or interest on Tax
The Company has not within the period of six years ending on the
date of this Agreement paid or become liable to pay any penalty,
fine, surcharge or interest charged by virtue of the provisions of
the TMA or any other Taxation Statute.
20.1.5 Compliance with PAYE, national insurance contribution and Tax
collection obligations
(a) All income tax deductible and payable under the PAYE system
and/or any other Taxation Statute has, so far as is
required to be deducted, been deducted from all payments
made or treated as made by the Company and all amounts due
to be paid to the Inland Revenue prior to the date of this
Agreement have been so paid, including all Tax chargeable
on benefits provided for directors, employees or former
employees of the Company or any persons required to be
treated as such.
(b) All deductions and payments required to be made under any
Taxation Statute in respect of national insurance and
social security contributions (including employer's
contributions) have been so made.
(c) All payments by the Company to any person which ought to
have been made under deduction of Tax have been so made and
the Company (if required by law to do so) has accounted to
the Inland Revenue for the Tax so deducted.
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(d) Proper records have been maintained in respect of all such
deductions and payments and all applicable regulations have
been complied with.
(e) The Disclosure Documents contain details so far as they
affect the Company of all current dispensations agreed with
the Inland Revenue in relation to PAYE and all
notifications given by the Inland Revenue under section
166, ICTA 1988.
20.1.6 Investigations
The Company has not been subject to any visit, audit,
investigation, discovery or access order by any Taxation Authority
and so far as the Vendors are aware there are no circumstances
existing which make it likely that a visit, audit, investigation,
discovery or access order will be made.
20.1.7 Residence
The Company is and always has been resident for Taxation purposes
only in the jurisdiction in which it is incorporated.
20.1.8 Tax provision
Full provision or reserve has been made in the Accounts for all
Taxation assessed or liable to be assessed on the Company or for
which it is accountable in respect of income, profits or gains
earned, accrued or received or deemed to be earned, accrued or
received on or before the Balance Sheet Date, including
distributions made down to such date or provided for in the
Accounts and proper provision has been made in the Accounts for
deferred Taxation in accordance with generally accepted accounting
principles.
20.1.9 Concessions and arrangements
The amount of Taxation chargeable on the Company during any
accounting period ending on or within the six years before the
Balance Sheet Date has not depended on any concessions, agreements
or other formal or informal arrangements with any Taxation
Authority.
20.1.10 Anti-avoidance provisions
The Company has not entered into or been a party to any scheme or
arrangement of which the main purpose, or one of the main purposes,
was the avoidance of or the reduction in or the deferral of a
liability to Taxation.
20.1.11 Section 765, ICTA 1988
The Company has not without the prior consent of the Treasury
carried out or agreed to carry out any transaction under section
765, ICTA 1988 which would be unlawful in the absence of such
consent and has, where relevant, complied with the requirements of
section 765A(2), ICTA 1988 (supply of information on movement of
capital within the EU) and any regulations made or notice given
thereunder.
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20.1.12 Transactions requiring clearance or consent
All particulars furnished to any Taxation Authority in connection
with an application for clearance or consent by the Company or on
its behalf or affecting the Company has been made and obtained on
the basis of full and accurate disclosure to the relevant Taxation
Authority of all relevant material facts and considerations; and
any transaction for which clearance or consent was obtained has
been carried into effect only in accordance with the terms of the
relevant clearance or consent.
20.1.13 Calculation of Taxation liability
The Company has sufficient records relating to past events to
permit accurate calculation of the Taxation liability or relief
which would arise upon a disposal or realisation on completion of
each asset owned by the Company at the Balance Sheet Date or
acquired by the Company since that date but before Completion.
20.1.14 Claims and disclaimers
The Company has duly submitted all claims and disclaimers the
making of which has been assumed for the purposes of the Accounts.
20.1.15 Outstanding claims, elections and appeals
The Disclosure Documents contain full particulars of all matters
relating to Taxation in respect of which the Company is entitled:
(a) to make any claim (including a supplementary claim), disclaimer
or election for relief under any Taxation Statute;
(b) to appeal against any assessment or determination relating to
Taxation;
(c) to apply for a postponement of Taxation.
20.2 Corporation tax, including corporation tax on chargeable gains
20.2.1 Base values and acquisition costs
If each of the capital assets of the Company was disposed of on the
date hereof for a consideration equal to the book value of that
asset in, or adopted for the purposes of, the Accounts or, in the
case of assets acquired since the Balance Sheet Date, equal to the
consideration given upon its acquisition, no liability to
corporation tax on chargeable gains or balancing charges under the
CAA would arise and for the purpose of determining the liability to
corporation tax on chargeable gains there shall be disregarded any
relief and allowances available to the Company other than amounts
falling to be deducted under section 38, TCGA.
20.2.2 Capital allowances
All expenditure which the Company has incurred or may incur under
any subsisting commitment on the provision of machinery, plant or
buildings has qualified or will qualify (if not deductible as a
trading expense for trade carried on by the Company) for
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writing-down allowances or industrial building allowances (as the
case may be) under CAA and where appropriate notices have been
given to the Inland Revenue under section 118, FA 1994.
20.2.3 Leased assets
The Company has not made any claim for capital allowances in
respect of any asset which is leased to or from or hired to or from
the Company and no election affecting the Company has been made or
agreed to be under sections 53 or 55, CAA in respect of such
assets.
20.2.4 Finance leases
The Company is not a lessee under a lease to which the provisions
of Schedule 12 to the FA 1997 apply or could apply.
20.2.5 Short life assets
The Company has not made any election under section 37, CAA nor is
it taken to have made such an election under section 37(8)(c), CAA.
20.2.6 Long life assets
The Company does not own and has not owned a long life asset
(within the meaning of section 38A, CAA) in respect of which any
claim for capital allowances would be subject to the provisions of
section 38E-38G, CAA.
20.2.7 Industrial buildings
None of the assets of the Company expenditure on which has
qualified for a capital allowance under Part I, CAA has at any time
been used otherwise than as an industrial building or structure.
20.2.8 Distributions
(a) No distribution within the meaning of sections 209, 210 and
211, ICTA 1988 has been made (or will be deemed to have
been made) by the Company after 5th April, 1965 except
dividends shown in its audited accounts and the Company is
not bound to make any such distribution.
(b) No elections have been made pursuant to section 246A, ICTA
1988 in respect of any dividends nor has the Company made a
distribution to which the provisions of paragraph 2 of
Schedule 7, FA 1997 have been, or could be, applied.
(c) The Company has not received a dividend in respect of which
the payer has made an election under section 246A, ICTA
1988 nor a distribution to which the provisions of
paragraph 2 of Schedule 7, FA 1997 have been, or could be,
applied.
20.2.9 Repayments of share capital
The Company has not any time after 6th April, 1965 repaid, redeemed
or repurchased or agreed to repay, redeem or repurchase or granted
an option under which it may become liable to purchase any shares
of any class of its issued share capital nor has the Company after
that date capitalised or agreed to capitalise in the form of shares
or debentures any profits or reserves of any class or description
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or otherwise issued or agreed to issue any share capital other than
for the receipt of new consideration (within the meaning of Part
VI, ICTA 1988) or passed or agreed to pass any resolution to do so.
20.2.10 Demergers
The Company has not been engaged in nor been a party to any of the
transactions set out in sections 213 to 218 inclusive, ICTA 1988
nor has it made or received a chargeable payment as defined in
section 218(1), ICTA 1988.
20.2.11 Issues of securities
No securities (within the meaning of section 254(1), ICTA 1988)
issued by the Company and remaining in issue at the date of this
Agreement were issued in such circumstances that the interest
payable thereon falls to be treated as a distribution under either
sections 209(2)(d), 209(2)(da) or 209(2)(e), ICTA 1988, nor has the
Company agreed to issue such securities in such circumstances.
20.2.12 Capital distributions
The Company has not received any capital distribution to which the
provisions of section 189, TCGA could apply.
20.2.13 Land sold and leased back
The Company has not entered into any transaction to which the
provisions of section 779 or 780, ICTA 1988 have been or could be
applied.
20.2.14 Foreign loan interest
The Company has not since 31st March, 1982 received any foreign
loan interest in respect of which double taxation relief will or
may be restricted under section 798, ICTA 1988.
20.2.15 Non-deductible payments
No rents, interest, annual payments or other sums of an income
nature paid or payable by the Company or which the Company is under
an existing obligation to pay in the future are or may be wholly or
partially disallowable as deductions, management expenses or
charges in computing profits for the purposes of corporation tax by
reason of the provisions of sections 74, 79, 125, 338, 339, 779 to
784 inclusive, 787 or 788, ICTA 1988 or any other statutory
provision or otherwise.
20.2.16 Rent payable to connected persons
No rent is or has been payable by the Company to which the
provisions of sections 33A and 33B, ICTA 1988 could have applied
prior to their ceasing to have effect.
20.2.17 No unremittable income or gains
No claim has been made by the Company under sections 584, 585 or
723 ICTA 1988 or under section 279, TCGA.
20.2.18 Payments to directors, officers or employees
The Company has not made or agreed to make any payment to or
provided or agreed to provide any benefit for any Director or
former director, officer or employee of the Company, whether as
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compensation for loss of office, termination of employment or
otherwise, which is not allowable as a deduction in calculating the
profits of the Company for Taxation purposes whether up to or after
the Balance Sheet Date.
20.2.19 Disallowance of trading losses and advance corporation tax carry
forward No change of ownership of the Company has taken place in
circumstances such that section 768 (change in ownership of
company: disallowance of trading losses) or section 245, ICTA 1988
(change in ownership of company: calculation and treatment of
advance corporation tax) has or may be applied to deny relief for a
loss or losses incurred by the Company and within the period of
three years ending with the date of this Agreement there has been
no major change in the nature or conduct of any trade or business
(as defined in section 768 and section 245, ICTA 1988) carried on
by the Company.
20.2.20 Transfer pricing
The Company is not a party to any transaction or arrangement under
which it may be required to pay for any asset or any services or
facilities of any kind an amount which is in excess of the market
value of that asset or those services or facilities, neither is or
was the Company a party to any transaction or arrangements to which
the provisions of section 770A and Schedule 28 AA, ICTA 1988 may
apply and nor will the Company receive any payment for an asset or
any services or facilities of any kind that it has supplied or
provided or is liable to supply or provide which is less than the
market value of that asset or those services or facilities.
20.2.21 Transactions not at arm's length
The Company has not disposed of or acquired any asset in
circumstances falling within section 17 or 19, TCGA nor given or
agreed to give any consideration to which section 128(1)(2), TCGA
could apply.
20.2.22 Transactions between connected persons
No allowable loss has accrued to the Company to which section
18(3), TCGA will apply.
20.2.23 Chargeable debts
The Company is not owed a debt, other than a debt on a security, on
the disposal or satisfaction of which a liability to corporation
tax on chargeable gains will arise by reason of section 251, TCGA.
20.2.24 Relief for loans to traders and qualifying corporate bonds
No claim for relief has been allowed to the Company pursuant to
sections 253 and 254, TCGA in respect of any loan and no chargeable
gain has or is likely to arise pursuant to section 253 (5), (6),
(7) or (8) or section 254 (9) or (10), TCGA.
20.2.25 Chargeable policies
The Company has not acquired benefits under any policy of assurance
otherwise than as the original holder of legal and beneficial
title.
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20.2.26 Postponement of gains relating to overseas trade
No claim or election affecting the Company has been made (or
assumed to be made) under sections 140, 140C or 187 TCGA.
20.2.27 Depreciatory transactions
(a) No allowable loss which might accrue on the disposal by the
Company of any share in or security of any company is
likely to be reduced by virtue of the provisions of
sections 176 and 177, TCGA.
(b) The Company has not been a party to any scheme or
arrangement whereby the value of an asset has been
materially reduced as set out in sections 30-34, TCGA.
20.2.28 Restriction of straightline growth
No asset owned by the Company is subject to a deemed disposal and
re-acquisition under Schedule 2, TCGA so as to restrict the extent
to which the gain or loss over the period of ownership may be
apportioned by reference to straightline growth.
20.2.29 Other claims made by the Company
The Company has made no claim under any of the following: (a)
section 280, TCGA (tax on chargeable gains payable by instalments);
(b) section 24(2), TCGA (assets of negligible value); (c) section
242(2), TCGA (small part disposals of land); or (d) section 139, FA
1993 (deferral of unrealised exchange gains).
20.2.30 Gifts
The Company has not received any assets by way of gift as mentioned
in section 282, TCGA and the Company has not held, and does not
hold, shares in a company to which section 125, TCGA could apply.
20.2.31 Non-resident companies
(a) There has not accrued or arisen any income, profit or gain
in respect of which the Company may be liable to
corporation tax by virtue of the provisions of section 13,
TCGA or Chapter IV of Part XVII, ICTA 1988.
(b) The Company has not been served with a notice in respect of
the unpaid corporation tax liability of any company
pursuant to section 191, TCGA.
20.2.32 Controlled foreign companies
No notice of the making of a direction under section 747, ICTA 1988
has been received by the Company and no circumstances exist which
would entitle the Inland Revenue to make such a direction or to
apportion any profits of a controlled foreign company to the
Company pursuant to section 752, ICTA 1988.
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20.2.33 Agent for non-residents
The Company has not been a party to any transaction or arrangement
whereby it is or may hereafter become liable for Taxation under or
by virtue of section 42A, ICTA 1988 or regulations made thereunder
or section 126, FA 1995.
20.2.34 Profit-related pay
No scheme registered under Chapter III of Part V, ICTA 1988 applies
to the Company or any of its employees and no application for
registration of a scheme so applying has been made.
20.2.35 Payment from pension funds
The Company has not received a payment out of funds held for the
purposes of an exempt approved scheme in respect of which an amount
is recoverable by the Inland Revenue under section 601, ICTA 1988.
20.2.36 Claims and elections
(a) The Disclosure Documents contain full particulars of all
claims and elections made (or assumed to be made) under
sections 23, 152-162 or 165, 175, 247, 248, TCGA insofar as
they could affect the chargeable gain or allowable loss
which would arise in the event of a disposal by the Company
of any of its assets, and indicates which assets (if any)
so affected would not on a disposal give rise to relief
under Schedule 4, TCGA.
(b) The Disclosure Documents contain full particulars of
elections made under
(i) Regulation 10 of The Exchange Gains and Losses
(Alternative Method of Calculating of Gain or
Loss) Regulations 1994 and whether or not such
elections have been varied
(ii) Regulation 3 or 4 of The Local Currency Elections
Regulations 1994 and such election is still
valid.
20.2.37 Loan relationships
(a) All interests, discounts and premiums payable by the
Company in respect of its loan relationships (within the
meaning of section 81, FA 1996) are eligible to be brought
into account by the Company as a debit for the purposes of
Chapter II of Part IV, FA 1996 at the time and to the
extent that such debits are recognised in the statutory
accounts of the Company.
(b) The Disclosure Documents contain full particulars of any
debtor relationship (within the meaning of section 103, FA
1996) of the Company which relates to a relevant discounted
security (within the meaning of paragraph 3 of Schedule 13,
FA 1996) to which paragraph 17 or 18 of Schedule 9, FA 1996
applies.
(c) The Company has not been a party to a loan relationship
which had an unallowable purpose (within the meaning of
paragraph 13 of Schedule 9, FA 1996).
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(d) The Disclosure Documents contain full particulars of:
(i) any loan relationships to which the Company is a
party to which paragraph 8 of Schedule 15, FA
1996 has applied or will apply on the occurrence
of a relevant event (within the meaning of
paragraph 8(2) of Schedule 15, FA 1996);
(ii) the amount of any deemed chargeable gain or
deemed allowable loss that has arisen or will
arise on the occurrence of such relevant event;
and
(iii) any election made pursuant to paragraph 9 of
Schedule 15, FA 1996.
(d) The Company has not entered into any transaction to which
paragraph 11 of Schedule 9, FA 1996 applies.
20.3 Corporation tax - groups of companies
20.3.1 Group relief and consortium relief
The Disclosure Documents contain full particulars of all
arrangements and agreements relating to group relief (as defined by
section 402, ICTA 1988) to which the Company is or has been a party
and:
(a) all claims by the Company for group relief were when
made and are now valid and have been or will be
allowed by way of relief from corporation tax;
(b) the Company has not made nor is liable to make any
payment under any arrangement or agreement save in
consideration for the surrender of group relief
allowable to the Company by way of relief from
corporation tax;
(c) the Company has received all payments due to it under
any arrangement or agreement for any surrender of
group relief made by it and the payments are not
liable to be refunded in whole or in part;
(d) no such payment exceeds or could exceed the amount
permitted by section 402(6), ICTA 1988; and
(e) no arrangements such as are specified in section
410(1)-(6), ICTA 1988 exist or existed for any period
of account in respect of which a surrender has been
made or purports to have been made.
20.3.2 Surrender of advance corporation tax
The Disclosure Documents contain full particulars of all
arrangements and agreements to which the Company is or has been a
party relating to the surrender of advance corporation tax made or
received by the Company under section 240, ICTA 1988 and:
(a) the Company has not paid nor is liable to pay for the
benefit of any advance corporation tax which is or may
become incapable of set-off against the Company's
liability to corporation tax;
(b) the Company has received all payments due to it under
any arrangement or agreement for any surrender of
advance corporation tax made by it and the payments
are not liable to be refunded in whole or in part;
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(c) no such payment exceeds or could exceed the amount
permitted by section 240(8), ICTA 1988; and
(d) no arrangements such as are specified in section
240(11), ICTA 1988 whereby any person could obtain
control of the Company exist or existed for any period
in respect of which a claim under section 240, ICTA
1988 has been made or purports to have been made.
20.3.3 Transfer of Tax refunds
The Disclosure Documents contain full particulars of all
arrangements and agreements relating to the transfer of tax refunds
to which the Company is or has been a party and:
(a) all claims by the Company for the transfer of tax
refunds were when made and are now valid and have been
or will be allowed by way of discharging the liability
of the Company to pay any corporation tax;
(b) the Company has not made nor is liable to make any
payment under any arrangement or agreement save in
consideration for the transfer of tax refunds
allowable to the Company by way of discharge from
liability to corporation tax and equivalent to the
Taxation for which the Company would have been liable
but for the transfer;
(c) the Company has received all payments due to it under
any such arrangement or agreement or transfer of tax
refunds made by it and the payments are not liable to
be refunded in whole or in part;
(d) no such payment exceeds or could exceed the amount
permitted by section 102(7), FA 1989; and
(e) no arrangements such as specified in section
410(1)-(6), ICTA 1988 exist or existed for any period
in respect of which a claim under section 102, FA 1989
has been made or purports to have been made.
20.3.4 Acquisitions from group members
No tax has been or may be assessed on the Company pursuant to
section 190, TCGA in respect of any chargeable gain accrued prior
to the date of this Agreement and the Company has not at any time
within the period of six years ending with the date of this
Agreement transferred any asset other than trading stock including
any transfer by way of share exchange within section 135, TCGA to
any company which at the time of disposal was a member of the same
group as defined in section 170, TCGA.
20.3.5 Leaving the group
The execution or completion of this Agreement or any other event
since the Balance Sheet Date will not result in any chargeable
asset being deemed to have been disposed of and re-acquired by the
Company for Taxation purposes pursuant to section 178 or 179, TCGA
or as a result of any other Event since the Balance Sheet Date.
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20.3.6 Group income
The Disclosure Documents contain full particulars of all elections
made by the Company under section 247, ICTA 1988 and all such
elections are now in force and the Company has not paid any
dividend without advance corporation tax or made any payment
without deduction of income tax in the circumstances specified in
section 247(6), ICTA 1988 and no assessment has been made on the
Company in respect of advance corporation tax which ought to have
been paid or income tax which ought to have been deducted.
20.3.7 Capital losses
The Company has no capital losses the set-off of which are or may
be restricted by section 177A and Schedule 7A, TCGA.
20.4 Close companies
20.4.1 Close company status
The Company has not at any time during the six years ended at the
Balance Sheet Date been a close company within the meaning of
sections 414 and 415, ICTA 1988.
20.4.2 Close investment-holding company status
The Company has not in any accounting period beginning after 31st
March, 1989 been a close investment-holding company as defined in
section 13A, ICTA 1988.
20.4.3 Distributions
No distribution within section 418, ICTA 1988 has ever been made by
the Company.
20.4.4 Loans to participators
Any loans or advances made or agreed to be made by the Company
within sections 419 and 420 or 422, ICTA 1988 have been disclosed
and the Company has not released or written off or agreed to
release or write off the whole or any part of any such loans or
advances.
20.5 Inheritance tax
20.5.1 No transfers of value and associated operations
The Company has made no transfers of value within sections 94 and
202, ITA nor has the Company received a transfer of value such that
liability might arise under section 199, ITA nor has the Company
been party to associated operations in relation to a transfer of
value as defined by section 268, ITA.
20.5.2 Inland Revenue charge
There is no unsatisfied liability to inheritance tax attached to or
attributable to the Shares or any asset of the Company and none of
them are subject to an Inland Revenue charge as mentioned in
section 237 and 238, ITA.
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20.5.3 Power of sale, mortgage or charge
No asset owned by the Company nor the Shares are liable to be
subject to any sale, mortgage or charge by virtue of section 212,
ITA.
20.6 VAT
20.6.1 Returns and payments
(a) The Company is a taxable person duly registered for the
purposes of VAT.
(b) The Company has complied with all statutory provisions,
rules, regulations, orders and directions in respect of
VAT, has promptly submitted accurate returns, and the
Company maintains full and accurate VAT records, has never
been subject to any interest, forfeiture, surcharge or
penalty nor been given any notice under sections 59 or 64,
VATA nor been given a warning within section 76(2), VATA
nor has the Company been required to give security under
paragraph 4 of Schedule 11, VATA.
(c) VAT has been duly paid or provision has been made in the
Accounts for all amounts of VAT for which the Company is
liable.
20.6.2 Taxable supplies and input tax credit
All supplies made by the Company are taxable supplies and the
Company has not been and will not be denied full credit for all
input tax by reason of the operation of sections 25 and 26, VATA
and regulations made thereunder or for any other reasons and no VAT
paid by the Company is not input tax as defined in section 24, VATA
and regulations made thereunder.
20.6.3 VAT groups
The Company is not and has not been for VAT purposes a member of
any group of companies other than the Group and no act or
transaction has been effected in consequence whereof the Company is
or may be held liable for any VAT arising from supplies made by
another company and no direction has been given nor will be given
by H M Customs & Excise under Schedule 9A, VATA as a result of
which the Company would be treated for the purposes of VAT as a
member of a group.
20.6.4 Transactions between connected persons
The Company has not been or agreed to be party to any transaction
or arrangement in relation to which a direction has been or could
be made under paragraph 1 of Schedule 6, VATA or to which paragraph
2(3A) of Schedule 10, VATA applied.
20.6.5 Charge to VAT as agent or representative
The Company is not and has not agreed to become liable for VAT by
virtue of sections 47 and 48, VATA.
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20.6.6 VAT and Properties
The Company or its relevant associate for the purposes of paragraph
3(7) of Schedule 10, VATA has exercised the election to waive
exemption from VAT (pursuant to paragraph 2 of Schedule 10, VATA)
only in respect of those Properties listed (as having been the
subject of such an election) in the Disclosure Documents and: (a)
neither the Company nor its relevant associate has any intention or
obligation to exercise such an election
in respect of any other of the Properties;
(b) all things necessary for the election to have effect have
been done and in particular any notification and
information required by paragraph 3(6) of Schedule 10, VATA
has been given and any permission required by paragraph
3(9) of Schedule 10, VATA has been properly obtained;
(c) a copy of the notification and of any permission obtained
from H M Customs & Excise in connection with the
election is included in the Disclosure Documents;
(d) no election has or will be disapplied or rendered
ineffective by virtue of the application of the
provisions of paragraph 2 (3AA) of Schedule 10, VATA;
(e) in no case has the Company charged VAT, whether on rents or
otherwise, which is not properly chargeable; and (f) the Company
has not agreed to refrain from making an election in relation to
any of the Properties.
20.6.7 Capital goods scheme
The Company does not own and has not at any time within the period
of ten years preceding the date hereof owned any assets which are
capital items subject to the Capital Goods Scheme under Part XV of
the VAT Regulations 1995.
20.6.8 Bad debt relief
The Company has not made any claim for bad debt relief under
section 36, VATA and details of any claim it could make have been
disclosed.
20.6.9 Self-billing
The Company has not entered into any self-billing arrangement in
respect of supplies made by any other person nor has it at any time
agreed to allow any such person to make out VAT invoices in respect
of supplies made by the Company.
20.7 Stamp duty
20.7.1 Stamp duty
All stampable documents wheresoever executed (other than those
which have ceased to have any legal effect) to which the Company is
a party have been duly stamped or stamped with a particular stamp
denoting that no stamp duty is chargeable. Since the Balance Sheet
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Date there have been and are no circumstances or transactions to
which the Company is or has been a party such that a liability to
stamp duty or any penalty in respect of such duty will arise on the
Company.
20.7.2 Stamp duty reserve tax
Since the Balance Sheet Date the Company has not incurred any
liability to or been accountable for any stamp duty reserve tax and
there has been no agreement within section 87(1), FA 1986 which
could lead to the Company incurring such a liability or becoming so
accountable.
PART 3
MARINE
21.1 VESSELS
21.1.1 Schedule 8 sets forth a list of all vessels owned, leased,
chartered or managed by the Company on the date hereof and
indicates any such Vessels that are laid up or being held for sale
on the date hereof Each Putford Vessel is duly and validly
documented under the laws and flag of the United Kingdom, and the
Company is the sole owner of each Putford Vessel and has good title
to each Putford Vessel free and clear of all Encumbrances, except
for such maritime liens arising as a matter of law in the ordinary
course of business consistent with past practice and which are not
delinquent or are being contested in good faith but in no event do
such contested liens, individually or in the aggregate, exceed
(pound)10,000.
21.1.2 With respect to each Putford Vessel, (a) such Putford Vessel is in
good operating condition and repair, consistent with its age, and
has been maintained and serviced in accordance with the Company's
normal practices and in the normal course of business, and is in
satisfactory operating condition for charter in the manner and
services in which it normally engages, (b) such Putford Vessel
holds in full force and effect all certificates, licenses, permits
and rights required for operation in the manner and services
vessels of its kind are being operated in the geographical area in
which such Putford Vessel is presently being operated, (c) so far
as the Vendors are aware no event has occurred and no condition
exists that would materially or adversely effect the condition of
such Putford Vessel, and (d) such Vessel is in class, free of any
recommendations, with the highest classification and rating for
vessels of its kind and engaged in similar services, and such
certificates are valid for at least 6 months.
21.1.3 Since 1st January 2000, the Company has continued to maintain the
inventory of spare parts (whether on board or ashore) for the
Vessels following the same policy and in the same usual and
customary manner as prior to such date, including any renewal or
replacement of spare parts used in the repair of any Vessel.
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21.1.4 Since 1st January 2000, the Company has not:-
(a) departed from any normal drydock and maintenance
practices or discontinued replacement or renewal of
spares in operating its fleet or any other assets;
(b) deferred any scheduled maintenance on any Vessel or
other assets;
(c) entered into any charter for any Vessel which has a
term of longer than 6 months other than those
Disclosed;
(d) authorised any of, or agreed or committed to do any
of, the foregoing actions; or
(e) failed to maintain, renew or assist permits required
for its business and Vessels.
21.1.5 The Company has notified in writing the Purchaser of any Vessel
that has been drydocked since 1st January 2000 and of any insurable
or non-insurable loss exceeding the sum of (pound)7,500 in respect
of any one incident occurring since 1st January 2000.
21.1.6 The Company has not received any notice of early termination under
any of its charters, which are in full force and effect, and so far
as the Vendor is aware (without having made any enquiries of the
customers in this respect) no customer of the Company intends to
terminate, limit or reduce its or their business relations with the
Company.
21.2 INSURANCE
21.2.1 There are included in the Disclosure Documents a list and
description, including limits of coverage and deductibles, 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 such policies maintained by the Company is
in full force and effect and a complete and correct copy of each
has been delivered to the Purchaser. All insurance premiums, club
calls, back calls and assessments (if any) currently due with
respect to such policies maintained by the Company 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,
present any claim under any such policy in a due and timely manner.
There are no outstanding unpaid claims under any such policies
other than any pending claims under the marine insurance policies
of the Company and the amount of such claims have been recorded as
a receivable and all of such claims are fully collectible. The
Company has not received notice of cancellation or non-renewal of
any such policy. Such policies maintained by the Company are
sufficient for compliance with all requirements of law and all
agreements to which the Company is a party.
21.2.2 All the Vessels are entered in the books of British Marine
Luxembourg S.A. (formerly British Marine Mutual Protection) and for
the last 6 years the Company has not been a member of any other
maritime mutual protection or indemnity club or fund and all club
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calls and assessments notified to the Company have been paid to
date or have been properly provided for.
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SCHEDULE 5
PART I
BASIS FOR PREPARATION OF THE COMPLETION ACCOUNTS
1. GENERAL REQUIREMENTS
Subject to the provisions of paragraphs 2 to 4 hereof the
Completion Accounts shall be prepared under the historical cost
convention and in accordance with accounting principles generally
accepted in the United Kingdom (including Accounting Standards)
and, subject as aforesaid, on a basis consistent with the Accounts.
2. BALANCE SHEET
Unless already taken into account, the following principles shall
be observed in drawing up the balance sheet which is to form part
of the Completion Accounts:
2.1 sums receivable in respect of debtors shall not be included at sums
higher than the amounts collectable, making appropriate provision
for doubtful debts;
2.2 stocks and work-in-progress shall be valued at the lower of cost
and net realisable value;
2.3 liabilities shall include accruals at the close of business on the
date of Completion;
2.4 no value shall be attributable to goodwill or any other intangible
asset;
2.5 immovable property and other fixed assets shall be included at
their net book value as at the Balance Sheet Date (or at cost if
purchased after the Balance Sheet Date) less depreciation on cost
or the revalued amounts (as appropriate) at the respective rates
applied in the Accounts.
2.6 provision shall be made for all Taxation except in respect of any
profits, gains or losses arising from any disposal excluded under
the provisions of paragraph 3.1.
2.7 deferred Taxation to be accounted for in accordance with the
relevant Accounting Standards except in respect of any profits,
gains or losses arising from any revaluation excluded under the
provisions of paragraph 3.1.
3. PROFIT AND LOSS ACCOUNT
Unless already taken into account, the following principles shall
be observed in drawing up the profit and loss account of the Group
which is to form part of the Completion Accounts:
3.1 there shall be excluded any profits, gains or losses arising from
any disposal of any immovable property or from any revaluation of
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immovable property whether or not such profits, gains, losses are
treated in the said Accounts as items of an extraordinary or
exceptional nature;
3.2 depreciation shall be deducted on the basis mentioned in paragraph
2.5 above;
3.3 any Taxation on profits shall be computed as if the Completion
Accounts are an accounting period for Corporation Tax and be
deducted except in respect of any profits, gains or losses arising
from any disposal or revaluation excluded under the provisions of
paragraph 3.1.
3.4 the profits or losses shall be computed before paying any dividend
or making appropriations of profit or allocations to or from
reserves and before deducting any extraordinary item or making any
prior year adjustment, as defined in FRS 3.
4. CHANGES IN ACCOUNTING STANDARDS
Unless otherwise taken into account in accordance with the
preceding provisions of this schedule, the Completion Accounts
shall be prepared without regard to any changes in Accounting
Standards from those applied in the preparation of the Accounts.
PART II
ADJUSTED NET CURRENT ASSETS
1. The Adjusted Net Current Assets of the Group shall be the aggregate
of all the current assets as shown in the Completion Accounts less
the aggregate of all liabilities (including amounts falling due to
creditors not only within but also outside of one year) and charges
(including provision for vessels survey and maintenance but
excluding deferred Taxation except for Taxation arising on the sale
or disposal of an asset when proceeds reinvested in a wasting
asset) adjusted as follows to the extent not already taken into
account in the Completion Accounts:-
1.1 without taking into account any amounts owed by one member of
the Group to any other member of the Group;
1.2 pre paid expenses shall include fuel not paid for by charterers
on board motor vessels as at Completion;
1.3 without taking into account any of the proceeds of sale
respectively referred to in Clause 7.5 and Clause 7.6;
1.4 without taking into account the amount of any insurance claim
respectively referred to in Clause 7.7 and Clause 7.8;
1.5 without treating as a current asset any Putford Vessel held for
immediate realisation;
1.6 without taking into account the value of any spares.
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PART III
AGREED ADJUSTMENTS
1. The parties acknowledge and confirm that the amount
of(pound)4,254,284 referred to in Clause 7.2 has been agreed after
making the following adjustments to the amount of(pound)5,000,000:-
(a)(pound)217,000: Employee bonuses (including National Insurance
contributions but net of the corporation tax savings of 30% payable
pursuant to Clause 26;
(b)(pound)503,000: Vessel spares;
(c)(pound)59,000: corporation tax liability in respect of gains
held over during the last 10 years;
(d)(pound)10,216: interest on the late payment of corporation tax
relating to the survey provisions reversed in the Accounts (net of
the corporation tax savings of 30%);
by adding thereto:-
(a) (pound)43,500 in respect of the effect on working capital
of the sale of the Putford Skua and Putford Tern vessels
following their reclassification as assets held for sale as
of 31 December 1999 (net of corporation tax at 30%).
2. The parties agree that there will be no reduction in the
Consideration to the extent of the adjustments set out in this Part
III.
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SCHEDULE 6
COMPLETION
PART 1
On Completion, the Vendors shall deliver or make available to the
Purchaser:
1. certificates from each of the banks at which the Company and each
of the Subsidiaries maintains an account of the amount standing to
the credit or debit of all such accounts as at the close of
business on the last Business Day prior to Completion;
2. the cash book balances of the Company and each of the Subsidiaries
as at Completion with statements reconciling such cash book
balances and the relevant cheque books with the balances on the
bank accounts of the Company and each of the Subsidiaries as shown
by the certificates referred to in paragraph 1;
3. the cheque books relating to all the bank accounts of the Company
and each of the Subsidiaries together with confirmation that no
cheques have been written by the Company or any of the Subsidiaries
since preparation of the statements referred to in paragraph 1.2;
4. the Tax Deed duly executed as a deed by the Vendors;
5. transfers of the Shares duly executed by the registered holders
thereof in favour of the Purchaser or its nominee(s) together with
the relevant share certificates in the names of such registered
holders;
6. such waivers, consents or other documents (including any power of
attorney under which any document required to be delivered under
Part 1 of this schedule has been executed) in the agreed terms to
enable the Purchaser and its nominee(s) to be registered as the
holders of the Shares;
7. certificates in respect of all issued shares in the capital of each
of the Subsidiaries;
8. the statutory registers and minute books (properly written up to
the time immediately prior to Completion), the common seal (if
any), the certificate of incorporation and (if applicable) any
certificate of incorporation on change of name of the Company and
each of the Subsidiaries;
9. the documents of title to the Properties excluding those held by or
to the order of Barclays Bank;
10. the written resignations in the agreed terms of all the Directors
(except S.J. Hashim and N.I. Palmer from their respective offices,
such resignations to take effect from Completion;
11. copies of the written particulars of employment in agreed terms
duly executed by N.I. Palmer, R.F. Catchpole, J.K. Cowan and P.G.
Watson (and a copy of the written particulars of employment in
agreed terms of P. Willis duly executed by P. Willis);
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12. a discharge and declaration of satisfaction in respect of all
charges and other securities given by the Company and/or any
Subsidiary in favour of 3i Group Plc together with a letter
confirming that at Completion there is no outstanding indebtedness
of the Group to 3i Group Plc;
13. the Escrow Account and Instruction Letter;
14. a letter from the Vendors' Solicitors to the Purchaser's Solicitors
undertaking to deliver to the stamp office immediately after
Completion together with the relevant amount of stamp duty the
stock transfer forms executed by 3i relating to the acquisition of
6802 A Ordinary Shares by the Vendors from 3i and to forward the
same to the Purchaser's Solicitors immediately they are received
back from the stamp office;
PART 2
On Completion, the Vendors shall cause a board meeting of the
Company and of each of the Subsidiaries to be held at which:
1. in the case of the Company only, the said transfers of the Shares
shall be passed for registration and registered (subject to the
same being duly stamped, which shall be at the cost of the
Purchaser);
2. the resignations referred to in paragraphs 1.10 of Part 1 shall be
tendered and accepted so as to take effect at the close of the
meeting;
3. persons nominated by the Purchaser (in the case of directors
subject to any maximum number imposed by the relevant articles of
association) shall be appointed additional directors and appointed
secretaries;
4. the written particulars of employment with N.I. Palmer, R.F.
Catchpole, J.K. Cowan and P.G. Watson in agreed terms shall be
approved;
5. in the case of the Company only, the Completion Dividend shall be
declared payable in accordance with Clause 5.4; and
6. in the case of the Subsidiaries only, transfers shall be passed for
registration and registered (subject to the same having been duly
stamped at the cost of the Company) and declarations of trust in a
form satisfactory to the Purchaser shall be executed in respect of
all shares in the Subsidiaries held by any person other than the
Company as nominee for the Company or another Subsidiary.
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PART 3
On Completion, the Purchaser shall cause a board meeting of the
Purchaser to be held at which:-
1. the A Loan Notes (and certificates in respect thereof) shall be
issued to the Vendors;
2. the B Loan Notes (and certificates in respect thereof) shall be
issued to the Vendors;
3. the transaction contemplated by this Agreement be approved;
4. the signature, execution and completion (as appropriate) of this
Agreement and the Tax Deed and all ancillary documents hereto be
approved; and
5. the subscription of 135,758,640 B Ordinary Shares for an amount
of(pound)13,575,864 be approved.
PART 4
On Completion, the Purchaser shall deliver to the Vendors;
1.1 the Tax Deed duly executed as a deed by the Purchaser;
1.2 the written particulars of employment in agreed terms duly signed
on behalf of the Company or the relevant Subsidiaries;
1.3 certificates in respect of the A Loan Notes and the B Loan Notes;
and
1.4 a certified copy of an irrevocable letter of instructions in agreed
terms to the Purchaser's transfer agent, Harris Bank & Trust
Company, to issue the relative share certificates in respect of the
Consideration Shares and to deliver them without cost to the
Vendors' Solicitors;
1.5 the Registration Rights Agreement;
1.6 a certified extract from a meeting of its board of directors
authorising the signature, execution and completion (as
appropriate) of this Agreement;
1.7 a legal opinion from Weil Gotshal & Manger in the agreed terms.
1.8 a certificate of the secretary of the Purchaser certifying that the
attached resolutions have been adopted by its board of directors by
unanimous written consent on 18 April 2000
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SCHEDULE 7
LIMITATION OF VENDORS' LIABILITY
1. Notwithstanding the provisions of Clause 9, the Vendors shall not
be liable in respect of a breach of any of the Warranties if and to
the extent that the loss occasioned thereby has been recovered
under the Indemnities or the Tax Deed.
2. The Vendors shall not be liable under the Warranties to the extent
that the facts which might result in a Claim or possible Claim were
Disclosed.
3. The Vendors shall not be liable in respect of any Claim:-
3.1 to the extent that the subject of the Claim is allowed or provided
for or reserved in the Accounts or has been included in calculating
creditors or deducted in calculating debtors in the Accounts and
(in the case of creditors or debtors) is identified in the records
of the Company or to the extent such matter was specifically
referred to in the notes to the Accounts; or
3.2 to the extent that a Claim arises or is increased:
3.2.1 wholly or partly from an act or omission occurring at the request
of or with the written consent of the Purchaser or (on or after the
date hereof) the Company or any of its directors, other officers,
employees or agents;
3.2.2 wholly or partly from an act or omission compelled by law;
3.2.3 as a result of any increase in rates of Taxation or any change in
legislation or regulation relating to Taxation occurring or coming
into force since the date of this Agreement whether or not having
retrospective effect; or
3.2.4 wholly or partly as a result of the passing or coming into force of
or any change in any enactment, law, regulation, directive,
requirement or any practice of any government, government
department or agency or regulatory body (including but not limited
to extra-statutory concessions of the Inland Revenue) after the
date of this Agreement whether or not having retrospective effect;
3.2.5 by an act or omission carried out voluntarily by the Purchaser or
any Affiliate of the Purchaser or any of their respective
directors, employees or agents after the date of Completion and
which the Purchaser or Affiliate or any such person (as the case
may be) ought reasonably to have known would give rise to or
increase the amount of the Claim;
3.2.6 because of any change of Accounting Reference Date of the Company
and its Subsidiaries from 31st December or because of any change in
any of the accounting policies, bases or practices of the Company
or any of the Subsidiaries;
3.2.7 to the extent that there are tax losses, reliefs or allowances in
the Company or the Subsidiaries available (whether by surrender or
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otherwise) at the date of Completion to be set against any Taxation
to which the relevant Claim relates; and
3.2.8 in respect of any Claim relating to the Taxation which arises or is
increased by virtue of any disclaimer of first year allowances made
by the Company or any of the Subsidiaries after Completion or other
similar disclaimer or transaction which has the effect of
increasing the liability of the Company or any of the Subsidiaries
to Taxation in respect of any period ended on or before the date of
this Agreement.
3.3 To the Extent that:-
3.3.1 the amount of Claim is recovered from the insurers of the Company
or any of the Subsidiaries or would have been so recovered if the
policies of insurance of the Company or relevant Subsidiary were
maintained on substantially similar terms or otherwise affording
the same degree of insurance cover as those existing at the date of
this Agreement; or
3.3.2 the Claim relates to National Insurance contributions payable in
respect of any persons whose services have been supplied to the
Company by Guernsey Ship Management Limited;
3.3.3 the Claim is contingent only (unless and until such contingent
liability becomes an actual liability and is due and payable).
4. The liability of the Vendors in respect of any Claim:
4.1 shall not arise unless and until the amount of such Claim
exceeds(pound)2,500 in respect of any single item;
4.2 shall not arise unless and until the amount of such Claim (other
than a Vessel Claim) when aggregated with the amount of any other
such Claim (other than a Vessel Claim) exceeds (pound)50,000 in
which event all of such Claim or Claims (other than a Vessel Claim)
shall be recoverable hereunder (and not just the excess).
5. The liability of the Vendors in respect of any Vessel Claim shall
not arise unless and until the amount of any such Vessel Claim when
aggregated with the amount of any other such Vessel Claim exceeds
(pound)50,000 in which event the Vendors shall only be liable for
the excess.
6. The Vendors shall have no liability in respect of any Claim
relating to the Pre Completion Period to the extent that either:-
(i) the amount of the Claim is taken into account in the
Completion Accounts or
(ii) the Adjusted Net Current Assets at Completion would not
have been less than (pound)4,254,284 had the amount of the
Claim been taken into account in the Completion Accounts.
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7. The liability of each Non Director Vendor:-
7.1 shall not (when aggregated with the amount of all other Claims)
exceed the principal amounts due and payable under the A Loan Notes
and the B Loan Notes issued to him on Completion;
7.2 shall be limited to that percentage set opposite his name in column
(4) of Schedule 1.
8. The only remedy of the Purchaser against the Non Director Vendors
in respect of a Claim (other than the Indemnities) shall be the
right of set off as provided in paragraph 18 of this Schedule
against the A Loan Notes and B Loan Notes. This provision takes
effect to the exclusion of any conflicting provision in this
Agreement relating to a Claim and for the avoidance of any doubt
binds any successor in title to or assignee of the Purchaser so
that when the persons entitled to enforce a Claim and the persons
liable to pay the A Loan Notes and B Loan Notes are different the
only remedy in respect of such Claim shall be the right of the
person(s) liable to pay the A Loan Notes and B Loan Notes to
withhold payment of such Loan Notes in accordance with this
paragraph 8.
9. The liability of the Vendor Directors:-
9.1 shall not (when aggregated with the amount of all other Claims)
exceed that amount set opposite his name in column (6) of Schedule
1;
9.2 in the case of Claims not exceeding in the principal amounts due
and payable under the A Loan Notes and B Loan Notes shall be
limited to that percentage set opposite his name in column (4) of
Schedule 1 in which case the first remedy of the Purchaser prior to
the exercise of any other remedy against the Vendor Director shall
be the right of set off as provided for in paragraph 18 of this
Schedule 7 against the A Loan Notes and B Loan Notes. This
provision takes effect to the exclusion of any conflicting
provision of this Agreement relating to a Claim and for the
avoidance of any doubt binds any successor in title to or assignee
of the Purchaser so that when the persons entitled to enforce a
Claim and the persons liable to pay the A Loan Notes and B Loan
Notes are different the only remedy in respect of such Claim shall
be the right of the person(s) liable to pay the A Loan Notes and B
Loan Notes to withhold payment of such Loan Notes in accordance
with this paragraph 9.2;
9.3 in the case of the amount by which Claims exceed the principal
amounts due and payable under the A Loan Notes and B Loan Notes
shall be limited to that percentage set opposite his name in column
(5) of Schedule 1.
10. The liability of the Vendors in respect of any Claim other than in
respect of the Tax Warranties or the Tax Deed shall cease on the
2nd anniversary of Completion, except in respect of matters which
have been the subject of a bona fide written claim which is made
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before the relevant date by or on behalf of the Purchaser to the
Vendors giving sufficient details of all material aspects of the
Claim including the Purchaser's bona fide estimate of the amount
thereof. Any such Claim shall (if it has not previously been
satisfied, settled or withdrawn) be deemed to have been withdrawn
unless legal proceedings in respect of it have been commenced by
both being issued and served within nine months of such
notification to the Vendors.
11. The liability of the Vendors in respect of any Claim in respect of
the Tax Warranties or under the Tax Deed shall cease on the 7th
anniversary of Completion except in respect of matters which have
been the subject of a bona fide written claim which is made before
the relevant date by or on behalf of the Purchaser to the Vendors
giving sufficient details of all material aspects of the claim
including the Purchaser's bona fide estimate of the amount thereof.
Any such Claim shall (if it has not previously been satisfied,
settled or withdrawn) be deemed to have been withdrawn unless legal
proceedings in respect of it have been commenced by both being
issued and served within nine months of such notification to the
Vendors.
12. Any payment made by the Vendors in respect of a breach of any
Warranties or payment made under the Indemnities or the Tax Deed,
or any other payment made pursuant to this Agreement, shall be and
shall be deemed to be pro tanto a reduction in the price paid for
the Shares under this Agreement.
13. This Schedule 7 which, inter alia, regulates or otherwise affects
the liability of the Vendors shall remain in full force and be
fully applicable in all circumstances and, in particular (but
without limitation) and in the absence of fraud, shall not be
discharged in whole or in part by any breach of any of the
Warranties or any claim against the Vendors in respect of the
Warranties, the Indemnities or the Tax Deed, whatever its nature or
consequences, nor by any other matter whatsoever.
14. If the Purchaser or any member of the Purchaser's Group becomes
aware of any matter which might give rise to a Claim or upon any
Claim being made, the following provisions shall apply:-
14.1 the Purchaser shall forthwith give reasonable details by written
notice to the Vendors of the matter and shall consult with the
Vendors' Representative with respect to the matter;
14.2 the Purchaser shall not knowingly make, and shall procure that no
other member of the Purchaser's Group shall knowingly make, any
admission of liability in respect of or compromise or settle the
matter without the prior written consent of the Vendors, such
consent not to be unreasonably withheld or delayed;
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14.3 the Purchaser shall provide, and shall procure that all other
members of the Purchaser's Group provides, the Vendors and the
Vendors' professional advisors with all reasonable access to
premises, personnel and to all relevant assets, documents, records
and information within the power, possession or control of any
member of the Purchaser's Group of or relating to the Company and
its Subsidiaries to enable the Vendors and their professional
advisors to examine such assets, documents, records and information
and to take photographs or photocopies thereof at its expense in
order to appraise themselves of all facts, matters and information
relevant to the Claim subject always to not adversely interfering
with the business of the Purchaser or the Purchaser's Group;
14.4 the Purchaser, so far as is reasonably practicable, shall procure
that other members of the Purchaser's Group, retain and preserve
all relevant assets, documents, records and information within the
power, possession or control of the Purchaser's Group of or
relating to the Company which are or may be relevant in connection
with any Claim for so long as any actual or prospective Claim
remains outstanding;
14.5 in connection with any proceedings relating to the Claim (other
than against the Vendors), the Purchaser shall and shall procure
that each member of the Purchaser's Group will permit the Vendors
in the name of the Purchaser and/or the relevant member of the
Purchaser's Group (as appropriate) to appoint such professional
advisors and to take such action as the Vendors may consider
reasonably necessary or desirable to avoid, dispute, resist,
appeal, compromise or defend the Claim, action or demand and any
adjudication in respect thereof (including, if the Vendors so
request, conduct of the proceedings or negotiations) subject only
to consulting the Purchaser and/or the relevant member of the
Purchaser's Group (as appropriate) prior to taking any such action,
on the basis that the Vendors shall provide the Purchaser with such
indemnity and security therefor as the Purchaser and/or the
relevant member of the Purchaser's Group (as appropriate) may
reasonably require in relation to any such request or nomination by
the Vendors.
15. If at any time the Vendors (or any of them) pay to the Purchaser an
amount pursuant to a Claim and the Purchaser or the Company or any
Subsidiary is to become entitled to recover from any other person
not being an Affiliate of the Purchaser and not being a Vendor
(including, without limitation, any taxation or other authority or
under any policy of insurance maintained by the Company or any
Subsidiary from time to time) any sum in respect of the same
circumstances giving rise to such Claim:-
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15.1 without prejudice to the Purchaser's rights first to claim against
the Vendors pursuant to this Agreement, the Purchaser shall, or
shall procure that the Company or relevant Subsidiary shall, take
all reasonably steps to enforce such recovery, and shall forthwith
repay to the Vendors so much of the amount paid by them to the
Purchaser as does not exceed the sum recovered from such other
person less all reasonable costs, expenses and taxation incurred by
the Purchaser or the Company or relevant Subsidiary in recovering
that sum from such other person; or
15.2 at the Vendors' option, subject to the Vendors indemnifying the
Purchaser or the Company or relevant Subsidiary to their respective
reasonable satisfaction, the Purchaser shall, or shall procure that
the Company or relevant Subsidiary shall, for a nominal
consideration assign to the Purchaser, to the extent possible at
law, the benefit of the rights of recovery, reimbursement or refund
which the Purchaser or the Company or relevant Subsidiary has
against such other person in respect of the matter giving rise to
the Claim.
16. The Purchaser shall, or shall procure the Company or relevant
Subsidiary shall, so far as it is able to do so and based on the
information available to it from time to time keep the Vendors
fully and promptly informed of any actual or prospective right of
recovery from any third party as referred to in paragraph 14 above.
17. Without prejudice to any other provision herein for the protection
of the Vendors, the Purchaser shall and shall procure that the
Company and each of its Subsidiaries shall take all reasonable
steps to mitigate any loss which is or may be the subject of any
Claim in respect of the Warranties.
18. RIGHT OF SET-OFF BY PURCHASER
18.1 SET-OFF AGAINST LOAN NOTE PAYMENTS
The Purchaser shall be entitled, whether at the time when any of
the A Loan Notes and/or B Loan Notes would otherwise fall due for
redemption or in advance of any such time, to postpone redemption
of such amount of outstanding A Loan Notes or B Loan Notes held by
the Vendors whose nominal value is equal to the amount of the
relevant Set-off Claim in accordance with the provisions of this
paragraph 18 such right of postponement first being applied in the
case of the B Loan Notes.
18.2 MEANING OF SET-OFF CLAIM
For the purpose of this paragraph 18 the relevant Set-off Claim is
a Claim which:-
18.2.1 is the subject of a judgment by a court of competent jurisdiction
in favour of the Purchaser, some or part of which remains
unsatisfied; or
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18.2.2 is an amount which has been agreed between the Vendors to be due to
the Purchaser (which agreement may be evidenced by a resolution of
the Noteholders pursuant to Clause 16 of the A Loan Notes or Clause
15 of the B Loan Notes); or
18.2.3 in the event of the parties failing to agree the amount of any such
Claim, is certified to have a not less than 60% prospect of success
in the opinion, on the basis of the full facts available at that
time, of an independent Queen's Counsel (being, if the Vendors'
Representative and the Company fail to agree on such Counsel within
15 Business Days of either of them giving notice to the other of a
suggested Queen's Counsel to provide such an opinion, a Queen's
Counsel nominated by the President of the Law Society and whose
cost shall be borne as he shall direct);
and which, in any such case is one which can properly be made
against the Vendors by reason of any breach of the terms of this
Agreement or due by the Vendors under the Tax Deed.
18.3 NOTIFICATION OF EXERCISE
Prior to exercising any right of postponement under this paragraph
18 the Purchaser shall notify all the Vendors of its decision to
make a Set-off Claim and shall specify in such notice the amount of
A Loan Notes and/or B Loan Notes held by each Vendor to which the
postponement relates.
18.4 BASIS OF ALLOCATION
Where a relevant Set-off Claim is made against the Vendors, the
Purchaser shall allocate the postponement of allocation of the
outstanding A Loan Notes and/or B Loan Notes at the time when such
Set-off Claim is notified in accordance with paragraph 18 amongst
the relevant holders of the outstanding A Loan Notes and/or B Loan
Notes in the same proportion which the nominal value of outstanding
Loan Notes held by each such Vendor bears to the aggregate value of
all outstanding A Loan Notes and/or B Loan Notes (as the case may
be) held by the Vendors against whom the Set-off Claim is being
made at that time.
18.5 IMMEDIATE CANCELLATION
To the extent that the Purchaser has exercised its right of
postponement under this paragraph 18 in respect of either a
judgment given (as referred to in paragraph 18.2.1) or an amount
agreed between the Vendors and the Purchaser (as referred to in
paragraph 18.2.2) the nominal amount of the A Loan Notes and/or the
B Loan Notes shall be treated not merely as postponed but shall be
cancelled and the Purchaser shall cease to be under any further
obligation to make any payment in respect of such nominal amount of
A Loan Note and/or B Loan Notes and the amount so cancelled shall
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be treated as having been applied by the Purchaser in full or
partial settlement of such Claim.
18.6 SUBSEQUENT CANCELLATION
To the extent that the Purchaser has exercised its right to
postponement under this paragraph 18 in respect of any amount
certified by a Queen's Counsel (as referred to in paragraph 18.2.3)
then the Purchaser shall be entitled to continue to postpone the
payments in respect of such A Loan Notes and/or B Loan Notes under
the Claim in respect of which the right of postponement was
exercised shall have been determined by becoming the subject of
either a judgment by a court of competent jurisdiction or any
agreement between the parties in respect of such Claim, whereupon a
nominal amount of the postponed A Loan Notes and/or B Loan Notes
equal to the amount of such judgment or agreed sum shall be treated
not merely as postponed but shall be cancelled and the Purchaser
shall cease to be under any further obligation to make any payment
in respect of such nominal amount of the A Loan Notes and/or the B
Loan Notes and the amount so cancelled shall have been treated as
having been applied by the Purchaser in full or partial settlement
of such Claim.
18.7 FURTHER POSTPONEMENT
If the amount of the Set-off Claim notified pursuant to paragraph
18.3 is, upon the amount of the Claim on which such postponement
was based being determined (either by way of judgment or agreement
in accordance with this Agreement) applied in full satisfaction of
the relevant Claim (pursuant to either paragraph 18.5 or 18.6) and
if the amount so cancelled by the Purchaser is less than the amount
in respect of which the Set-off Claim was notified pursuant to
paragraph 18.3, then:-
18.7.1 to the extent that the Loan Notes so postponed but not cancelled
would otherwise have been due to be redeemed by the Purchaser, the
Purchaser shall within 5 Business Days of such determination redeem
such A Loan Notes and/or B Loan Notes in the amount of the
difference between the amounts so postponed and the amounts so
cancelled; and
18.7.2 to the extent that the A Loan Notes and/or B Loan Notes so
postponed would otherwise not have been due to be redeemed by the
Purchaser, the A Loan Notes and/or B Loan Notes shall cease to be
postponed and shall be repaid by the Purchaser at the appropriate
time in accordance with the provisions of the A Loan Notes and B
Loan Notes.
18.8. AVAILABILITY OF OTHER REMEDIES
Save as otherwise provided in this Schedule 7 the exercise by the
Purchaser of its rights of Set-off under this paragraph 18 shall be
106
<PAGE>
in addition to and without prejudice to any other remedy available
to the Purchaser either under this Agreement or otherwise.
INTEREST
18.9 No interest shall be payable under the A Loan Notes or B Loan Notes
in respect of nominal amount of Loan Notes cancelled in full or
partial settlement of any Claim.
107
<PAGE>
SCHEDULE 8
LIST OF MOTOR VESSELS
PART 1 - PUTFORD VESSELS
<TABLE>
<CAPTION>
SHIP VALUATION WHETHER
(POUND)MILLION LAID UP/HELD FOR SALE
<S> <C> <C>
Putford Acasta 1.10 No No
Putford Achates 1.35 No No
Putford Achilles 1.30 No No
Putford Ajax 1.35 No No
Putford Apollo 1.20 No No
Putford Aries 1.80 No No
Putford Artemis 1.35 No No
Putford Athena 1.35 No No
Putford Guardian 0.35 No No
Putford Rover 1.80 No No
Putford Trader 1.40 No No
Putford Sea Mussel 1.10 No No
Putford Worker 1.65 No No
Putford Puffin 0.85 No No
Putford Shore 0.35 No No
Putford Sky 0.25 No No
Putford Viking
(formerly named Blue Flame)(50%) 0.80 No No
Nova (75%) 0.30 No No
Daughter Craft (17) 2.00 No No
New P.38 Daughter Craft & davit 0.65 No No
Planter (harbour tug) No No
PART 2 - VESSELS MANAGED BY THE COMPANY
Britannia Venturer
Britannia Chieftan
Britannia Warrior
Britannia Harvester
Britannia Conquest
Britannia Monarch
Blackwatch
</TABLE>
108
<PAGE>
SCHEDULE 9
EARNINGS THRESHOLD
109
<PAGE>
SCHEDULE 10
EMPLOYEE BONUS DETAILS
110
<PAGE>
Signed as a Deed by SIMON HASHIM }
for himself and for and }
on behalf of the Vendors }
in the presence of:- }
Witness: Name
Address
Occupation
Signed as a Deed by IAN PALMER }
in the presence of:- }
Witness: Name
Address
Occupation
Executed as a Deed by
SEACOR SMIT INC
acting by
111
<PAGE>
<TABLE>
<CAPTION>
- ---------------------------- --------------------- --------------------------------------------------------------------------
(1) (2) (3) (4) (5) (6)
Name and address Number of Shares Entitlement to Consideration Proportion Proportion Limit of
held ------------------------------------------ of Claim of claim liability
% exceeding (amount)
(pound)
7,500,000
%
- ---------------------------- --------------------- ------------- -------------- ------------- --------- ---------- ----------
Cash: Consideration Loan Notes
(including Shares: (pound)
completion
dividend)
- ---------------------------- --------------------- ------------- -------------- ------------- --------- ---------- ----------
<S> <C> <C> <C> <C> <C> <C> <C>
J R Hashim 86 A Ordinary Shares 21,970 129 "A" 3,868 0.1547375 0.3989794 37,444
The Grove
Frostenden "B" 7,737
Beccles
Suffolk NR34 8BS
- ---------------------------- --------------------- ------------- -------------- ------------- --------- ---------- ----------
S J Hashim 11,404 A Ordinary 2,913,333 17,157 "A" 512,973 20.51891 52.9065176 4,965,223
Odinhahl Shares
Church Road "B" 1,025,945
Uggleshall
Beccles
Suffolk NR34 8BD
- ---------------------------- --------------------- ------------- -------------- ------------- --------- ---------- ----------
P R Hashim 7,328 A Ordinary 1,872,054 11,025 "A" 329,627 13.185073 N/A 988,881
The Grove Shares
Frostenden "B" 659,254
Beccles
Suffolk NR34 8BS
- ---------------------------- --------------------- ------------- -------------- ------------- --------- ---------- ----------
Dorothy Rainey Settlement 6,025 A Ordinary 1,539,182 9,065 "A" 271,016 10.84062 N/A 813,047
Broomfield House Shares
Lapford "B" 542,031
Near Crediton
Devon EX17 6LX
- ---------------------------- --------------------- ------------- -------------- ------------- --------- ---------- ----------
L W Rainey 4,111 A Ordinary 1,050,220 6,185 "A" 184,920 7.3968117 N/A 554,760
Broomfield House Shares
Lapford Near Crediton "B" 369,840
Devon EX17 6LX
- ---------------------------- --------------------- ------------- -------------- ------------- --------- ---------- ----------
1
<PAGE>
- ---------------------------- --------------------- ------------- -------------- ------------- --------- ---------- ----------
Ms V L Rainey 4,102 A Ordinary 1,047,921 6,172 "A" 184,516 7.3806182 N/A 553,547
Zomerlaan Shares
2103 AG Heemstede "B" 369,031
Holland
- ---------------------------- --------------------- ------------- -------------- ------------- --------- ---------- ----------
G A Catchpole 2,377 A Ordinary 607,242 3,576 "A" 106,922 4.2768721 11.0276038 1,034,930
`Evanger' Shares
Broadview Road "B" 213,844
Oulton Broad
Lowestoft
Suffolk NR32 3PL
- ---------------------------- --------------------- ------------- -------------- ------------- --------- ---------- ----------
R F Catchpole 3,230 A Ordinary 825,155 4,859 "A" 145,291 5.8116521 14.9849224 1,406,320
`Kessett' Shares
Broadview Road "B" 290,583
Oulton Broad
Lowestoft
Suffolk NR32 3PL
- ---------------------------- --------------------- ------------- -------------- ------------- --------- ---------- ----------
R G Catchpole 3,230 A Ordinary 825,155 4,859 "A" 145,291 5.8116521 N/A 435,874
`Waveney House' Shares
Priory Road "B" 290,583
St Olaves
Great Yarmouth
Norfolk NR31 9HQ
- ---------------------------- --------------------- ------------- -------------- ------------- --------- ---------- ----------
Mrs H M Catchpole 427 A Ordinary 109,084 642 "A" 19,207 0.7682896 N/A 57,621
`Evanger' Shares
Broadview Road "B" 38,414
Oulton Broad
Lowestoft
Suffolk NR32 3PL
- ---------------------------- --------------------- ------------- -------------- ------------- --------- ---------- ----------
2
<PAGE>
- ---------------------------- --------------------- ------------- -------------- ------------- --------- ---------- ----------
P F Catchpole 3,134 A Ordinary 800,630 4,715 "A" 140,973 5.6389219 14.5395501 1,364,522
`Waterfront' Shares
9 Romany Road "B" 281,946
Oulton Broad
Lowestoft
Suffolk NR32 3RJ
- ---------------------------- --------------------- ------------- -------------- ------------- --------- ---------- ----------
Claire Catchpole Settlement 1,824 A Ordinary 465,970 2,744 "A" 82,047 3.2818741 N/A 246,141
Mr M & Mrs J S Orr Shares
Mills & Reeve "B" 164,094
3-7 Redwell Street
Norwich
Norfolk NR2 4TJ
- ---------------------------- --------------------- ------------- -------------- ------------- --------- ---------- ----------
Andrew Catchpole Settlement 1,825 A Ordinary 466,225 2,746 "A" 82,092 3.2836734 N/A 246,276
Mr M & Mrs J S Orr Shares
Mills & Reeve "B" 164,184
3-7 Redwell Street
Norwich
Norfolk NR2 4TJ
- ---------------------------- --------------------- ------------- -------------- ------------- --------- ---------- ----------
Nick Reeve Settlement 664 A Ordinary 169,629 999 "A" 29,868 1.1947173 N/A 89,604
Mr M & Mrs J S Orr Shares
Mills & Reeve "B" 59,736
3-7 Redwell Street
Norwich
Norfolk NR2 4TJ
- ---------------------------- --------------------- ------------- -------------- ------------- --------- ---------- ----------
N E Stangroom 914 A Ordinary 233,496 1,375 "A" 41,113 1.6445356 N/A 123,340
Hamrow Farm Shares
Whissonsett "B" 82,227
Dereham
Norfolk NR20 5SX
- ---------------------------- --------------------- ------------- -------------- ------------- --------- ---------- ----------
3
<PAGE>
- ---------------------------- --------------------- ------------- -------------- ------------- --------- ---------- ----------
D J Stangroom 1,106 A Ordinary 282,545 1,664 "A" 49,750 1.989996 N/A 149,250
Hamrow Farm Shares
Whissonsett "B" 99,500
Dereham
Norfolk NR20 5SX
- ---------------------------- --------------------- ------------- -------------- ------------- --------- ---------- ----------
N I Palmer 704 A Ordinary 179,848 1,059 "A" 31,667 1.2666883 3.2660637 306,517
58 Corton Road Shares
Lowestoft "B" 63,334
Suffolk NR32 4PP
- ---------------------------- --------------------- ------------- -------------- ------------- --------- ---------- ----------
Mrs P G Watson 310 A Ordinary 79,195 466 "A" 13,944 0.5577747 1.4381815 134,973
16 Oulton Street Shares
Oulton Village "B" 27,889
Lowestoft
Suffolk NR32 3BB
- ---------------------------- --------------------- ------------- -------------- ------------- --------- ---------- ----------
J K Cowan 310 A Ordinary 79,195 466 "A" 13,944 0.5577747 1.4381815 134,973
`Oaklands' Shares
Priory Road "B" 27,889
St Olaves
Great Yarmouth
Norfolk NR31 9HQ
- ---------------------------- --------------------- ------------- -------------- ------------- --------- ---------- ----------
Mrs A Catchpole 470 A Ordinary 120,069 707 "A" 21,142 0.8456584 N/A 63,425
`Waterfront' Shares
9 Romany Road "B" 42,283
Oulton Broad
Lowestoft
Suffolk NR32 3RJ
- ---------------------------- --------------------- ------------- -------------- ------------- --------- ---------- ----------
G A Catchpole Trust 427 A Ordinary 109,084 642 "A" 19,207 0.7682896 N/A 57,621
`Evanger' Shares
Broadview Raod "B" 38,414
Oulton Broad
Lowestoft
Suffolk NR32 3PL
- ---------------------------- --------------------- ------------- -------------- ------------- --------- ---------- ----------
4
<PAGE>
- ---------------------------- --------------------- ------------- -------------- ------------- --------- ---------- ----------
H M Catchpole Trust 427 A Ordinary 109,084 642 "A" 19,207 0.7682896 N/A 57,621
`Evanger' Shares
Broadview Raod "B" 38,414
Oulton Broad
Lowestoft
Suffolk NR32 3PL
- ---------------------------- --------------------- ------------- -------------- ------------- --------- ---------- ----------
Miss S K Stangroom 243 A Ordinary 62,078 366 "A" 10,931 0.4372234 N/A 32,792
472 Horningtoft Road Shares
Whissonsett "B" 21,861
Dereham
Norfolk NR20 5SY
- ---------------------------- --------------------- ------------- -------------- ------------- --------- ---------- ----------
Miss L A Stangroom 264 A Ordinary 67,443 397 "A" 11,875 0.4750081 N/A 35,625
472 Horningtoft Road Shares
Whissonsett "B" 23,750
Dereham
Norfolk NR20 5SY
- ---------------------------- --------------------- ------------- -------------- ------------- --------- ---------- ----------
Mrs D M Stangroom 160 A Ordinary 40,875 241 "A" 7,197 0.2878837 N/A 21,591
472 Horningtoft Road Shares
Whissonsett "B" 14,394
Dereham
Norfolk NR20 5SY
- ---------------------------- --------------------- ------------- -------------- ------------- --------- ---------- ----------
Mrs J A Stangroom 160 A Ordinary 40,875 241 "A" 7,198 0.2878837 N/A 21,592
Hamrow Farm Shares
Whissonsett "B" 14,394
Dereham
Norfolk NR20 5SX
- ---------------------------- --------------------- ------------- -------------- ------------- --------- ---------- ----------
5
<PAGE>
- ---------------------------- --------------------- ------------- -------------- ------------- --------- ---------- ----------
N D Stangroom 66 A Ordinary Shares 16,861 99 "A" 2,969 0.118752 N/A 8,907
Smallholdings Farm
London Street "B" 5,938
Whissonsett
Dereham
Norfolk NR20 5ST
- ---------------------------- --------------------- ------------- -------------- ------------- --------- ---------- ----------
Mrs A J Gribbon 250 A Ordinary 63,866 377 "A" 11,245 0.4498183 N/A 33,736
Peppers Cottage Shares
Town Farm "B" 22, 491
Swaffham
Norfolk PE36 9PY
- ---------------------------- --------------------- ------------- -------------- ------------- --------- ---------- ----------
- ---------------------------- --------------------- ------------- -------------- ------------- --------- ---------- ----------
TOTALS 55,578 14,198,284 83,615 "A" 2,500,000 100 100 13,976,151
"B" 5,000,000
- ---------------------------- --------------------- ------------- -------------- ------------- --------- ---------- ----------
</TABLE>
6
Exhibit 4.1
INVESTMENT AND REGISTRATION RIGHTS AGREEMENT
INVESTMENT AND REGISTRATION RIGHTS AGREEMENT, dated April
19, 2000 (this "Agreement"), among SEACOR SMIT 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 transactions (the "Transactions")
contemplated by an agreement among the Company and the Holders dated the date
hereof, the Company is acquiring all of the equity interests in Putford
Enterprises Limited ("Putford") from the Holders; 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 delivered 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 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.
<PAGE>
"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 to the Holders at any time 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 may be resold pursuant to Rule 144(k) under the
Securities Act (or any successor provision) or all of such Holder's Registrable
Securities may be resold in a single ninety (90) day period under Rule 144 of
the Securities Act and do not require qualification under any state securities
or "blue sky" law then in effect, or the use of an applicable exemption
therefrom and, in each case, the Company has notified the transfer agent for the
Common Stock that any restrictive legend on such Shares may be removed in
connection with a transfer thereof; 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"
2
<PAGE>
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 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 pursuant
to a Shelf Registration Statement as contemplated hereby or pursuant to an
exemption from the registration requirements of the Securities Act and any
applicable state securities or "blue sky" laws and, in the case of an offer to
sell, sale or other transfer pursuant to such an exemption, the Company has
received (or waived the requirement therefor) a written opinion of U.S. counsel
in form and substance satisfactory to it to the effect that such disposition is
exempt from such registration requirements, provided that such Holder, prior to
effecting any transfer of Shares pursuant to such an exemption, 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
3
<PAGE>
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 furnished and has been afforded an opportunity to review the Company's 1999
Annual Report and the Company's Proxy Statement for use in connection with its
2000 Annual Meeting of Stockholders (the "Public Reports"); and (vii) such
Holder and such Holder's purchaser representatives, as applicable, have been
given the opportunity to examine all documents, including the Public Reports,
and to ask questions of, and to receive answers from, the Company and its
representatives concerning the terms of the Transactions and such Holder's
investment in the Shares.
Section 3. Restrictions on Transfer. Each certificate
representing the Shares shall have endorsed thereon 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 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 APRIL __, 2000, 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 SMIT, INC., 11200
RICHMOND AVENUE, SUITE 400, HOUSTON, TEXAS 77082,
ATTENTION: SECRETARY."
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 (and in no event
later than 30 days) 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 registration
4
<PAGE>
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 (subject
to Suspension Periods (defined below) and extensions coincident with the length
of such Suspension Periods) from the date the Shelf Registration Statement was
first declared effective by the Commission until the first to occur of the date
on which (A) the Shares issued to the Holders pursuant to the Transactions and
any other securities issued to the Holders at any time after the closing of the
Transactions in respect of the Shares (by means of exchange, reclassification,
dividend, distribution, split up, combination, subdivision, recapitalization,
merger, spin-off, reorganization or otherwise) cease to be Registrable
Securities and (B) 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; provided,
however, that no such Suspension Period shall exceed 120 consecutive days or
more than 180 days during any period of 360 consecutive days. 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 Common
Stock will be permitted to sell Shares of the Company's Common Stock pursuant to
5
<PAGE>
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 during the Effective Period; 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 including all exhibits thereto), such number of
copies of the 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
6
<PAGE>
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 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.
7
<PAGE>
(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.
(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
8
<PAGE>
(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 any preliminary prospectus, if such untrue statement or
alleged untrue statement or omission or alleged omission shall have been
corrected in the final prospectus and such Holder or any such other person shall
have failed to deliver such final prospectus 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
9
<PAGE>
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 thereof, 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. Notwithstanding 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
available 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 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
10
<PAGE>
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 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.
11
<PAGE>
Section 6. 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 6, whether or not such Registrable Securities
shall have been marked to indicate such consent.
Section 7. 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:
(a) if to the Holders, at their respective addresses listed
on Annex I hereto; 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 7 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 8. 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 9. 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 10. 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 11. Severability. If any provision of this
Agreement or the application thereof to any person or circumstances is
determined by a court of competent jurisdiction to be invalid, void or
12
<PAGE>
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.
Section 12. Termination. The rights and obligations under
this Agreement shall automatically terminate upon the earlier to occur of (a)
all Shares issued to the Holders pursuant to the Transactions cease to be
Registrable Securities 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 13. 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.
13
<PAGE>
IN WITNESS WHEREOF, the parties have caused this Agreement
to be duly executed and delivered as of the date first above written.
SEACOR SMIT INC.
By: /s/ Alice Gran
-----------------------------------------
Name: Alice Gran
Title: Vice President and General Counsel
/s/ Simon Hashim
--------------------------------------
Simon Hashim
/s/ N I Palmer
--------------------------------------
N I Palmer
Signed for and on behalf of the HOLDERS
listed below by Simon Hashim:
/s/ Simon Hashim
--------------------------------------
J R Hashim
P R Hashim
Dorothy Rainey
L W Rainey
Ms. V L Rainey
G A Catchpole
R F Catchpole
R G Catchpole
Mrs H M Catchpole
P F Catchpole
14
<PAGE>
Claire Catchpole Settlement
Andrew Catchpole Settlement
Nick Reeve Settlement
N E Stangroom
D J Stangroom
Mrs P G Watson
J K Cowan
Mrs A Catchpole
G A Catchpole Trust
H M Catchpole Trust
Miss S K Stangroom
Miss L A Stangroom
Mrs D M Stangroom
Mrs J A Stangroom
N D Stangroom
Mrs A J Gribbon
15
<PAGE>
ANNEX I
TO THE INVESTMENT AND
REGISTRATION RIGHTS AGREEMENT
<TABLE>
<CAPTION>
- ---------------------------------- ------------------------- ------------------------ -----------------------
HOLDERS: SHARES:
- ---------------------------------- ------------------------- ------------------------ -----------------------
<S> <C>
J R Hashim 129
The Grove
Frostenden
Beccles
Suffolk NR34 8BS
- ---------------------------------- ------------------------- ------------------------ -----------------------
S J Hashim 17,157
Odinhahl
Church Road
Uggleshall
Beccles
Suffolk NR34 8BD
- ---------------------------------- ------------------------- ------------------------ -----------------------
P R Hashim 11,025
The Grove
Frostenden
Beccles
Suffolk NR34 8BS
- ---------------------------------- ------------------------- ------------------------ -----------------------
Dorothy Rainey Settlement 9,065
Broomfield House
Lapford
Near Crediton
Devon EX17 6LX
- ---------------------------------- ------------------------- ------------------------ -----------------------
L W Rainey 6,185
Broomfield House
Lapford
Near Crediton
Devon EX17 6LX
- ---------------------------------- ------------------------- ------------------------ -----------------------
Ms V L Rainey 6,172
Zomerlaan
2103 AG Heemstede
Holland
- ---------------------------------- ------------------------- ------------------------ -----------------------
G A Catchpole 3,576
`Evanger'
Broadview Raod
Oulton Broad
Lowestoft
Suffolk NR32 3PL
- ---------------------------------- ------------------------- ------------------------ -----------------------
16
<PAGE>
- ---------------------------------- ------------------------- ------------------------ -----------------------
R F Catchpole 4,859
`Kessett'
Broadview Road
Oulton Broad
Lowestoft
Suffolk NR32 3PL
- ---------------------------------- ------------------------- ------------------------ -----------------------
R G Catchpole 4,859
`Waveney House'
Priory Road
St Olaves
Great Yarmouth
Norfolk NR31 9HQ
- ---------------------------------- ------------------------- ------------------------ -----------------------
Mrs H M Catchpole 642
`Evanger'
Broadview Raod
Oulton Broad
Lowestoft
Suffolk NR32 3PL
- ---------------------------------- ------------------------- ------------------------ -----------------------
P F Catchpole 4,715
`Waterfront'
9 Romany Road
Oulton Broad
Lowestoft
Suffolk NR32 3RJ
- ---------------------------------- ------------------------- ------------------------ -----------------------
Claire Catchpole Settlement 2,744
M M & Mrs J S Orr
Mills & Reeve
3-7 Redwell Street
Norwich
Norfolk NR2 4TJ
- ---------------------------------- ------------------------- ------------------------ -----------------------
Andrew Catchpole Settlement 2,746
Mr & Mrs J S Orr
Mills & Reeve
3-7 Redwell Street
Norwich
Norfolk NR2 4TJ
- ---------------------------------- ------------------------- ------------------------ -----------------------
17
<PAGE>
- ---------------------------------- ------------------------- ------------------------ -----------------------
Nick Reeve Settlement 999
Mr & Mrs J S Orr
Mills & Reeve
3-7 Redwell Street
Norwich
Norfolk NR2 4TJ
- ---------------------------------- ------------------------- ------------------------ -----------------------
N E Stangroom 1,375
Hamrow Farm
Whissonsett
Dereham
Norfolk NR20 5SX
- ---------------------------------- ------------------------- ------------------------ -----------------------
D J Stangroom 1,664
Hamrow Farm
Whissonsett
Dereham
Norfolk NR20 5SX
- ---------------------------------- ------------------------- ------------------------ -----------------------
N I Palmer 1,059
58 Corton Road
Lowestoft
Suffolk NR32 4PP
- ---------------------------------- ------------------------- ------------------------ -----------------------
Mrs P G Watson 466
16 Oulton Street
Oulton Village
Lowestoft
Suffolk NR32 3BB
- ---------------------------------- ------------------------- ------------------------ -----------------------
J K Cowan 466
`Oaklands'
Priory Road
St Olaves
Great Yarmouth
Norfolk NR31 9HQ
- ---------------------------------- ------------------------- ------------------------ -----------------------
Mrs A Catchpole 707
`Waterfront'
9 Romany Road
Oulton Broad
Lowestoft
Suffolk NR32 3RJ
- ---------------------------------- ------------------------- ------------------------ -----------------------
G A Catchpole Trust 642
`Evanger'
Broadview Raod
Oulton Broad
Lowestoft
Suffolk NR32 3PL
- ---------------------------------- ------------------------- ------------------------ -----------------------
18
<PAGE>
- ---------------------------------- ------------------------- ------------------------ -----------------------
H M Catchpole Trust 642
`Evanger'
Broadview Raod
Oulton Broad
Lowestoft
Suffolk NR32 3PL
- ---------------------------------- ------------------------- ------------------------ -----------------------
Miss S K Stangroom 366
472 Horningtoft Road
Whissonsett
Dereham
Norfolk NR20 5SY
- ---------------------------------- ------------------------- ------------------------ -----------------------
Miss L A Stangroom 397
472 Horningtoft Road
Whissonsett
Dereham
Norfolk NR20 5SY
- ---------------------------------- ------------------------- ------------------------ -----------------------
Mrs D M Stangroom 241
472 Horningtoft Road
Whissonsett
Dereham
Norfolk NR20 5SY
- ---------------------------------- ------------------------- ------------------------ -----------------------
Mrs J A Stangroom 241
Hamrow Farm
Whissonsett
Dereham
Norfolk NR20 5SX
- ---------------------------------- ------------------------- ------------------------ -----------------------
N D Stangroom 99
Smallholdings Farm
London Street
Whissonsett
Dereham
Norfolk NR20 5ST
- ---------------------------------- ------------------------- ------------------------ -----------------------
19
<PAGE>
- ---------------------------------- ------------------------- ------------------------ -----------------------
Mrs A J Gribbon 377
Peppers Cottage
Town Farm
Swaffham
Norfolk PE36 9PY
- ---------------------------------- ------------------------- ------------------------ -----------------------
- ---------------------------------- ------------------------- ------------------------ -----------------------
TOTALS 83,615
- ---------------------------------- ------------------------- ------------------------ -----------------------
</TABLE>
20
Exhibit 5.1
WEIL, GOTSHAL & MANGES LLP
A LIMITED LIABILITY PARTNERSHIP
INCLUDING PROFESSIONAL CORPORATIONS
767 FIFTH AVENUE
NEW YORK, NY 10153
212-310-8000
(FAX) 212-310-8007
May 19, 2000
SEACOR SMIT Inc.
1370 Avenue of the Americas
New York, New York 10019
Ladies and Gentlemen:
We have acted as counsel to SEACOR SMIT Inc., a Delaware
corporation (the "Company"), in connection with the preparation and filing with
the Securities and Exchange Commission of the Company's Registration Statement
on Form S-3 (the "Registration Statement"), under the Securities Act of 1933, as
amended (the "Securities Act"), relating to the registration of 83,615 shares of
common stock, par value $.01 per share, of the Company (the "Common Stock").
In so acting, we have examined originals or copies,
certified or otherwise identified to our satisfaction, of the Restated
Certificate of Incorporation of the Company, as amended to date, the Amended and
Restated By-laws of the Company, as amended to date, the Registration Statement,
the Prospectus that is a part thereof, and such corporate records, agreements,
documents and other instruments, and such certificates or comparable documents
of public officials and of officers and representatives of the Company, and have
made such inquiries of such officers and representatives, as we have deemed
relevant and necessary as a basis for the opinion hereinafter set forth.
In such examination, we have assumed the genuineness of all
signatures, the legal capacity of natural persons, the authenticity of all
documents submitted to us as originals, the conformity to original documents of
all documents submitted to us as certified, conformed or photostatic copies and
the authenticity of the originals of such latter documents. As to all questions
of fact material to this opinion that have not been independently established,
we have relied upon certificates or comparable documents of officers and
representatives of the Company.
Based on the foregoing, and subject to the qualifications
stated herein, we are of the opinion that the Common Stock has been duly
authorized, and is validly issued, fully paid and non-assessable.
NY2:\913390\02\JKRY02!.DOC\73293.0004
<PAGE>
SEACOR SMIT Inc.
May 19, 2000
Page 2
We hereby consent to the use of this letter as an exhibit
to the Registration Statement and to any and all references to our firm in the
Prospectus that is a part of the Registration Statement.
Very truly yours,
/s/ Weil, Gotshal & Manges LLP
Exhibit 23.1
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
As independent public accountants, we hereby consent to the incorporation by
reference in this registration statement of our reports dated February 15, 2000
included in SEACOR SMIT Inc.'s Form 10-K for the year ended December 31, 1999
and to all references to our Firm included in this registration statement.
ARTHUR ANDERSEN LLP
New Orleans, Louisiana,
May 19, 2000
