UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
____________
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of the
Securities Exchange Act of 1934
_____________________
Date of Report (Date of earliest event reported) January 29, 1999
TIDEWATER INC.
(Exact name of registrant as specified in its charter)
Delaware 1-6311 72-0487776
(State of (Commission (IRS Employer
incorporation) File Number) Identification No.)
1440 Canal Street, Suite 2100
New Orleans, Louisiana 70112
(Address of principal (Zip Code)
executive offices)
(504) 568-1010
(Registrant's telephone number, including area code)
N/A
(Former name or former address, if changed since last report)
<PAGE>
ITEM 5. OTHER EVENTS.
On January 29, 1999, Tidewater Inc. (the "Company") established a
Grantor Trust Stock Ownership Program (a "GSOP") in connection with which
the Company entered into a trust agreement (the "Trust Agreement") with
Whitney National Bank (the "Trustee"), providing for the establishment of
the related trust (the "GSOP Trust"). The GSOP Trust is designed to
acquire, hold and distribute shares of the common stock, par value $0.10,
of the Company (the "Common Stock") to provide for the payment of benefits
and compensation under the Company's employee benefit plans (the "Plans"),
including its stock option plans and 401(k) plan. The GSOP Trust will not
increase or alter the amount of benefits or compensation that will be paid
under the Plans.
On January 29, 1999, the Company sold 5,000,000 shares (the "Acquired
Shares") of the Common Stock to the GSOP Trust for $107,187,500 (the
"Purchase Price"). The Acquired Shares represent approximately 8.3% of the
outstanding shares of Common Stock after giving effect to the sale. The
Purchase Price per share is equal to the closing price per share of Common
Stock on the New York Stock Exchange on the last trading day prior to the
sale. In payment for the Acquired Shares, the Trustee paid $500,000 in
cash and issued its promissory note payable to the Company for the balance
of the Purchase Price. Acquired Shares will be released to satisfy the
Company's obligations to pay benefits under the Plans as the promissory
note is paid down or forgiven.
The Trustee will vote or tender shares held by the GSOP Trust in
accordance with the confidential instructions of participants (other than
members of the Board of Directors of the Company) in the Company's stock
option plans and 401(k) plan. Shares held by the GSOP Trust will not
affect the earnings per share calculation or return on average
stockholders' equity until after they are transferred out of the GSOP
Trust.
The Trust Agreement and the Stock Purchase Agreement are attached
hereto as exhibits and are incorporated herein by reference. The foregoing
description of the GSOP is qualified in its entirety by reference to such
exhibits.
ITEM 7. FINANCIAL STATEMENTS AND EXHIBITS
(c) EXHIBITS.
99.1 Trust Agreement, dated as of January 29, 1999, between
Tidewater Inc. and Whitney National Bank, as Trustee.
99.2 Stock Purchase Agreement dated as of January 29, 1999
between Tidewater Inc. and Whitney National Bank.
SIGNATURE
Pursuant to the requirements of the Securities Exchange Act of 1934,
the registrant has duly caused this report to be signed on its behalf by
the undersigned thereunto duly authorized.
TIDEWATER INC.
By: /S/ KEN C. TAMBLYN
Ken C. Tamblyn
Executive Vice President and
Chief Financial Officer
Date: February 10, 1999
<PAGE>
EXHIBIT INDEX
EXHIBIT NO. DESCRIPTION
99.1 Trust Agreement, dated as of January 29, 1999,
between Tidewater Inc. and Whitney National Bank,
as Trustee.
99.2 Stock Purchase Agreement dated as of January 29,
1999 between Tidewater Inc. and Whitney National
Bank.
EXHIBIT 99.1
TRUST AGREEMENT
BETWEEN
TIDEWATER INC.
AND
WHITNEY NATIONAL BANK
AS TRUSTEE
<PAGE>
TRUST AGREEMENT
DATED AS OF JANUARY 29, 1999
BETWEEN
TIDEWATER INC.
AND
WHITNEY NATIONAL BANK
TABLE OF CONTENTS
SECTION 1 DEFINITIONS....................................................... 1
SECTION 2 ESTABLISHMENT OF THE TRUST........................................ 4
2.1 TRUST FUND........................................................ 4
2.2 IRREVOCABILITY.................................................... 4
2.3 CLAIMS OF CREDITORS............................................... 4
SECTION 3 ACCEPTANCE BY THE TRUSTEE......................................... 4
SECTION 4 INVESTMENT OF THE TRUST........................................... 5
4.1 GENERAL DUTY OF TRUSTEE........................................... 5
4.2 ADDITIONAL POWERS OF TRUSTEE...................................... 5
SECTION 5 ESTABLISHMENT AND MAINTENANCE OF PARTICIPANT SCHEDULE............. 7
5.1 FORM OF PARTICIPANT SCHEDULE...................................... 7
5.2 MAINTAINING THE PARTICIPANT SCHEDULE.............................. 7
SECTION 6 MAINTENANCE OF TRUST.............................................. 7
6.1 TRUST ASSETS AND ALLOCATION TO PLANS.............................. 7
6.2 VALUATION OF TRUST AND ACCOUNTS................................... 8
6.3 TRUST STATEMENTS.................................................. 8
SECTION 7 VOTING AND TENDER OF COMPANY STOCK HELD IN TRUST.................. 8
7.1 VOTING OF COMPANY STOCK........................................... 8
7.2 TENDER RIGHTS..................................................... 8
7.3 NOTICES AND INFORMATION STATEMENTS................................ 9
SECTION 8 DISTRIBUTIONS FROM THE TRUST...................................... 9
8.1 DISTRIBUTIONS OF COMPANY STOCK FROM THE TRUST..................... 9
8.2 PROTECTION OF TRUSTEE............................................. 10
8.3 COMPANY OBLIGATIONS............................................... 10
8.4 TRUSTEE AS HOLDER OF LEGAL TITLE TO TRUST ASSETS.................. 10
8.5 FEDERAL INCOME TAX CONSEQUENCES OF THE TRUST...................... 10
SECTION 9 EXPENSES, COMPENSATION AND INDEMNIFICATION........................ 11
9.1 EXPENSES.......................................................... 11
9.2 COMPENSATION...................................................... 11
9.3 CHARGE ON TRUST FUND.............................................. 11
9.4 INDEMNIFICATION................................................... 11
9.5 PAYMENT FROM TRUST FUND........................................... 12
SECTION 10 ADMINISTRATION AND RECORDS....................................... 12
10.1 RECORDS........................................................... 12
10.2 SETTLEMENT OF ACCOUNTS............................................ 12
10.3 AUDIT............................................................. 13
10.4 JUDICIAL SETTLEMENT............................................... 13
10.5 DELIVERY OF RECORDS TO SUCCESSOR.................................. 13
10.6 TAX FILINGS....................................................... 13
SECTION 11 REMOVAL OR RESIGNATION OF THE TRUSTEE AND DESIGNATION OF
SUCCESSOR TRUSTEE...................................................... 13
11.1 REMOVAL........................................................... 13
11.2 RESIGNATION....................................................... 13
11.3 SUCCESSOR TRUSTEE................................................. 13
SECTION 12 ENFORCEMENT OF TRUST AGREEMENT................................... 13
12.1 RIGHTS OF PARTIES TO ENFORCE THE TRUST AGREEMENT.................. 13
12.2 LIMITATION ON RIGHTS OF PARTICIPANTS, BENEFICIARIES AND OTHER
AFFILIATES........................................................ 14
SECTION 13 TERMINATION...................................................... 14
13.1 TERMINATION UPON SPECIFIC EVENTS.................................. 14
13.2 TERMINATION IN OTHER EVENTS....................................... 14
13.3 LIMITATION ON TRUSTEE LIABILITY UPON TOTAL DISTRIBUTION;
CONTINUATION OF TRUSTEE POWERS.................................... 15
13.4 NONAPPLICABILITY OF ERISA......................................... 15
SECTION 14 AMENDMENT........................................................ 15
14.1 AMENDMENTS IN GENERAL............................................. 15
14.2 SPECIFIC AMENDMENTS............................................... 16
SECTION 15 NONALIENATION.................................................... 16
15.1 PROHIBITION AGAINST CERTAIN TRANSFERS, PLEDGES, ETC............... 16
SECTION 16 COMMUNICATIONS................................................... 16
16.1 TO THE COMPANY, BOARD OF DIRECTORS AND COMMITTEE.................. 16
16.2 TO THE TRUSTEE.................................................... 16
16.3 TO A PARTICIPANT.................................................. 17
16.4 BINDING UPON RECEIPT.............................................. 17
16.5 AUTHORITY TO ACT.................................................. 17
16.6 AUTHENTICITY OF INSTRUMENTS....................................... 17
SECTION 17 CLAIMS OF COMPANY'S BANKRUPTCY CREDITORS......................... 17
17.1 BANKRUPTCY CREDITORS.............................................. 17
17.2 RESUMPTION OF BENEFITS; RESTORATION OF ACCOUNTS................... 18
SECTION 18 CONSOLIDATION, MERGER OR SALE OF THE COMPANY..................... 18
18.1 CONSOLIDATION, MERGER OR SALE OF THE COMPANY...................... 18
SECTION 19 MISCELLANEOUS PROVISIONS......................................... 18
19.1 BINDING EFFECT.................................................... 18
19.2 INQUIRY AS TO AUTHORITY........................................... 18
19.3 RESPONSIBILITY FOR COMPANY ACTION................................. 18
19.4 SUCCESSOR TO TRUSTEE.............................................. 18
19.5 INTERCOMPANY AGREEMENTS........................................... 18
19.6 TITLES NOT TO CONTROL............................................. 19
19.7 LAWS OF THE STATE OF DELAWARE..................................... 19
19.8 FRACTIONAL SHARES................................................. 19
19.9 COUNTERPARTS...................................................... 19
SCHEDULE A List of Plans and Administrators
SCHEDULE B Trustee's Compensation Schedule
SCHEDULE C Promissory Note and Payment Schedule
<PAGE>
TRUST AGREEMENT made and entered into as of January 29, 1999 by
and between Tidewater Inc., a corporation organized under the laws of the
State of Delaware (the "Company"), and Whitney National Bank, a national
banking association, organized under the laws of the United States of
America (the "Trustee").
W I T N E S S E T H:
WHEREAS, the Company has in place various non-qualified and
qualified employee benefit plans and arrangements for the benefit of some
or all of the employees of the Company and certain of its subsidiaries and
affiliates and may from time to time adopt one or more additional plans or
arrangements;
WHEREAS, the Company and its subsidiaries or affiliates have and
will have certain legal obligations under these employee benefit plans or
arrangements;
WHEREAS, the Company wishes to establish a trust to assist it in
meeting certain of these obligations and to make contributions for the
benefit of its subsidiaries or affiliates and intends to make contributions
and/or loans to such trust at such time or times and in such amount or
amounts as it may determine;
WHEREAS, the Company intends that such contributions and/or loans
shall be held by the Trustee and used for the purpose of acquiring common
stock of the Company and making payments with respect to loans used to
acquire common stock of the Company all in accordance with the provisions
of this Trust Agreement;
WHEREAS, the Company intends that such contributions and/or loans
made to the Trustee by the Company shall be used for the exclusive purpose
of acquiring common stock of the Company in accordance with the provisions
of this Trust Agreement;
WHEREAS, inasmuch as the income and corpus of such trust may and
will be applied in accordance with the terms and conditions of the Trust in
discharge of the legal obligations of the Company, and for the benefit of
the Company's subsidiaries and affiliates, such trust is intended to be a
"grantor trust" within the meaning of Section 671 of the Code; and
WHEREAS, the Company intends that the assets of such trust at all
times shall be subject to the claims of bankruptcy and other general
creditors of the Company as provided in Section 17 of this Trust Agreement;
NOW, THEREFORE, in consideration of the mutual covenants herein
contained, the Company and the Trustee declare and agree as follows:
SECTION 1 DEFINITIONS.
As used in this Trust Agreement, the following definitions apply
to the terms indicated below:
1.1 "Administrator" or "Administrators" shall refer to the Committee,
Company official(s) or other persons listed in Schedule A charged with
responsibility for overseeing and administering the Plans and provision of
Benefits.
1.2 "Affiliate" shall refer to any direct or indirect Subsidiary
related by direct or indirect stock ownership of the Company that has
adopted a Plan while each such entity is a Subsidiary of the Company.
1.3 "Beneficiary" shall mean any person entitled to receive benefits
under any Plan on the death of a Participant.
1.4 "Benefits" shall mean amounts that the Company or an Affiliate
has an obligation to pay to Participants pursuant to any Plan under which
the Company has a legal obligation to (i) pay from its general assets, (ii)
provide for the payment of by making contributions from its general assets,
or (iii) deliver in shares of Company Stock.
1.5 "Board of Directors" shall mean the Board of Directors of the
Company.
1.6 "Code" shall mean the Internal Revenue Code of 1986 as it may be
amended from time to time.
1.7 "Committee" shall mean such committee as the Board of Directors
shall appoint from time to time to administer the Trust. The Committee
shall consist of three or more persons. The members of the Committee will
be certified to the Trustee by the Secretary or Assistant Secretary of the
Company. The Committee will initially be comprised of the Chief Financial
Officer, General Counsel and Treasurer of the Company and shall remain so
comprised until its composition is changed by the Board of Directors.
1.8 "Company Stock" shall mean the common stock of the Company, par
value $0.10 per share.
1.9 "Daily Value" shall mean, with respect to a share of Company
Stock, the closing reported sales price per share of Company Stock on the
New York Stock Exchange Composite Tape, or if Company Stock is not traded
on such stock exchange, the principal national securities exchange on which
Company Stock is traded, or if not so traded, the mean between the highest
bid and lowest asked quotation on the over-the-counter market as reported
by the National Quotations Bureau, or any similar organization, on any
relevant date, or if not so reported, as determined by the Committee in a
manner consistently applied.
1.10 "Director" shall mean the Chief Financial Officer of the
Company.
1.11 "Eligible Participant" shall mean a Participant who is not a
member of the Board of Directors of the Company and who, as of the date
upon which Eligible Participants are determined, either (a) holds an
unexercised option with respect to Company Stock granted to him or her
pursuant to any of the Stock Option Plans, or (b) participates in the
Savings Plan.
1.12 "Employee" shall mean any person who is actively employed by the
Company or an Affiliate.
1.13 "ERISA" shall mean the Employee Retirement Income Security Act
of 1974, as amended from time to time.
1.14 "Exchange Act" shall mean the Securities Exchange Act of 1934,
as amended from time to time.
1.15 "Other Assets" shall mean any asset or investment aside from
cash held by the Trust that is not Company Stock.
1.16 "Participant Schedule" shall mean the schedule prepared by the
Company from time to time pursuant to Section 5.
1.17 "Participants" shall mean those individuals who participate in
one or more of the Plans.
1.18 "Plans" shall mean the plans or arrangements referred to in
Schedule A, as amended from time to time.
1.19 "Savings Plan" shall mean the Company's 401(k) Savings Plan, as
amended from time to time, or such successor or substitute 401(k) Plan as
may be listed on Schedule A from time to time by the Company.
1.20 "Stock Option Plans" shall mean the Company's 1975 Incentive
Program Stock Option Plan, the Company's 1992 Stock Option and Restricted
Stock Plan and the Company's 1997 Stock Incentive Plan, as amended from
time to time, or such successor or substitute stock incentive or option
plan or plans as may be listed on Schedule A from time to time by the
Company.
1.21 "Specified Investments" shall mean (i) direct obligations of the
United States of America and agencies thereof for which the full faith and
credit of the United States is pledged or mutual funds, the sole assets of
which are such investments, (ii) obligations fully guaranteed by the United
States of America or mutual funds, the sole assets of which are such
investments, (iii) certificates of deposit issued by, or banker's
acceptances of, or time deposits with, any bank, trust company or national
banking association incorporated or doing business under the laws of the
United States of America or one of the states thereof having combined
capital and surplus and retained earnings of at least $1 billion (including
the Trustee if such conditions are met), (iv) commercial paper of
companies, banks, trust companies or national banking associations
incorporated or doing business under the laws of the United States of
America or one of the states thereof and in each case having a rating
assigned to such commercial paper by Standard & Poor's Corporation or
Moody's Investors' Service, Inc. (or, if neither such organization shall
rate such commercial paper at any time, by any nationally recognized rating
organization in the United States of America) equal to the highest rating
assigned by such organization, and (v) repurchase agreements with any
financial institution having a combined capital and surplus of at least $1
billion fully collateralized by obligations of the type described in
clauses (i) through (iv) above; provided that, if all of the above
investments are unavailable, the entire amount to be invested may be used
to purchase Federal Funds from an entity described in clause (iii) above;
and provided further that no investment shall be eligible as a "Specified
Investment" unless the final maturity or date of return of such investment
is 12 months or less from the date of purchase thereof.
1.22 "Subsidiary" shall mean any corporation of which a majority of
the total voting power of its outstanding voting securities, or any other
partnership, limited liability company, joint venture, or other entity of
which a majority of the partnership interests or other similar equity
interests thereof, is owned, directly or in indirectly, by the Company.
1.23 "Trust" shall mean the Tidewater Inc. Grantor Stock Trust
established pursuant to this Trust Agreement.
1.24 "Trust Fund" shall mean all Company Stock, money and other
property from time to time obtained by the Trust and all investments and
reinvestments made therewith or proceeds thereof and all earnings and
profits thereon, less all payments and charges as authorized herein.
SECTION 2 ESTABLISHMENT OF THE TRUST.
2.1 TRUST FUND. The Company hereby establishes the Tidewater Inc.
Grantor Stock Trust. The Trust Fund shall consist of such sums of Company
Stock, money and other property acceptable to the Trustee as are from time
to time paid to or otherwise acquired by the Trustee. Subject to Subsection
8.1.1 as to deemed forgiveness of debt, the Company shall have no duty or
obligation to make any contributions to the Trust and the Trustee shall
have no duty or obligation to require the Company to make any contribution
to the Trust. The Trust Fund shall be held by the Trustee in trust and
shall be dealt with in accordance with the provisions of this Trust
Agreement. The Trustee, and any successor Trustee appointed pursuant to
Section 11 hereof or resulting under Subsection 19.4 hereof, shall at all
times be a bank and trust company or other national banking association
that is neither a Subsidiary of nor other firm related by direct or
indirect stock ownership to or otherwise affiliated with the Company.
2.2 IRREVOCABILITY. This Trust shall be irrevocable. Except as
provided in Section 17 hereof, the Trust shall be for the exclusive purpose
of assisting the Company in providing for the payment of Benefits and
defraying expenses of the Trust in accordance with the provisions of this
Trust Agreement. No part of the income or corpus of the Trust Fund shall be
recoverable by the Company; provided, however, that the Trust Fund shall be
applied in discharge of the Company's legal obligations as provided in this
Trust Agreement.
2.3 CLAIMS OF CREDITORS. Notwithstanding anything in this Trust
Agreement or the Plans to the contrary, the Trust Fund shall at all times
be subject to the claims of bankruptcy and other general creditors of the
Company as provided in Section 17 hereof. No Participant or Plan shall have
any claim against the Trust Fund or Trustee.
SECTION 3 ACCEPTANCE BY THE TRUSTEE.
The Trustee accepts the Trust established under this Trust Agreement
on the terms and subject to the provisions set forth herein. The Trustee
agrees to discharge and perform fully and faithfully all of the duties and
obligations imposed upon it under this Trust Agreement.
SECTION 4 INVESTMENT OF THE TRUST.
4.1 GENERAL DUTY OF TRUSTEE. Except as otherwise provided in this
Subsection 4.1 or except as otherwise expressly provided in this Trust
Agreement, all assets received by the Trustee other than Company Stock
shall be invested as soon as practicable in, and remain invested in,
Company Stock.
4.1.1 The Trust shall not invest any cash contributed to the
Trust (other than cash contributed to repay loans of the Trust) in any
investment other than Company Stock, except that cash contributions may be
invested in Specified Investments on a temporary basis with the approval of
the Committee.
4.1.2 From time to time, the Trustee shall have the ability, with
the approval of the Committee, to borrow funds for the purpose of acquiring
shares of Company Stock and/or to issue one or more notes to the Company
(together with the payment of cash for the aggregate par value) in exchange
for newly issued shares of Company Stock or in exchange for cash to be used
to purchase Company Stock on the open market. The Trustee shall have the
ability to pledge any shares so acquired as collateral. Subject to the
requirements of Subsection 8.1.3, the terms and conditions of any borrowing
shall be fair and reasonable. It is contemplated that any such obligation
shall be repaid using cash contributions and earnings attributable to
Company Stock held by the Trust Fund.
4.1.3 The Company may contribute treasury shares of Company Stock
to the Trust Fund; provided that the Trust must pay consideration for such
treasury shares at least equal to the par value thereof.
4.1.4 Notwithstanding anything herein to the contrary, unless the
Committee otherwise directs, cash (other than cash received as
contributions) or Other Assets received by the Trustee shall be retained
and invested in Other Assets, provided, however, that the Trust shall make
no new investment in an Other Asset other than Specified Investments, and
provided further that, after payment of the costs of the Trust, including,
without limitation, Trustee fees and expenses and, if applicable, debt
repayment described in Subsection 4.1.2, through the end of the calendar
year during which such cash or Other Assets are received by the Trustee,
any such cash or Other Assets remaining shall be distributed by the Trustee
to the Administrators or the Director at the end of such calendar year to
provide for the payment of Benefits under such Plans as determined by the
Committee taking into account the best interests of a broad cross-section
of Participants.
4.2 ADDITIONAL POWERS OF TRUSTEE. Subject to the provisions of
Section 4.1, the Trustee shall have the following additional powers and
authority with respect to all property constituting a part of the Trust
Fund:
4.2.1 To purchase securities or any other kind of property and to
retain such securities or other property, regardless of diversification and
without being limited to investments authorized by law for the investment
of trust funds.
4.2.2 Subject to Subsection 7.2 hereof, to sell, exchange or
transfer any such property at public or private sale for cash or on credit
and grant options for the purchase or exchange thereof.
4.2.3 Subject to Section 7 hereof, to participate in any plan of
reorganization, consolidation, merger, combination, liquidation or other
similar plan relating to any such property, and to consent to or oppose any
such plan or any action thereunder, or any contract, lease, mortgage,
purchase, sale or other action by any corporation or other entity any of
the securities of which may at any time be held in the Trust Fund, and to
do any act with reference thereto.
4.2.4 To deposit cash or any Other Assets with any protective,
reorganization or similar committee; to delegate discretionary power to any
such committee; and to pay part of the expenses and compensation of any
such committee and any assessments levied with respect to any property so
deposited.
4.2.5 To exercise any conversion privilege or subscription right
available in connection with any such property, and to do any act with
reference thereto, including the exercise of options, the making of
agreements or subscriptions and the payment of expenses, assessments or
subscriptions, which may be deemed necessary or advisable in connection
therewith, and to hold and retain any securities or other property which it
may so acquire.
4.2.6 Subject to Subsection 9.4 hereof, to commence or defend
suits or legal proceedings and to represent the Trust in all suits or legal
proceedings; to settle, compromise or submit to arbitration any claims,
debts or damages, due or owing to or from the Trust; provided that, except
as to suits brought by the Trustee against the Company or against any other
party to enforce an obligation of the Company under the Trust Agreement,
suits may be commenced on behalf of the Trust only with the prior approval
of the Committee, and such prior approval shall not be unreasonably
withheld.
4.2.7 Subject to Section 7 hereof, to exercise, personally or by
general or limited power of attorney, any right, including the right to
vote, appurtenant to any securities or other such property.
4.2.8 To hold cash awaiting investment uninvested, and to
maintain such additional cash balances as it shall deem reasonable or
necessary to meet anticipated cash distributions from or administrative
costs of the Trust.
4.2.9 To invest cash or Other Assets at Whitney National Bank or
another bank and trust company or national banking association in any type
of interest-bearing investment, including, without limitation, deposit
accounts, certificates of deposit and repurchase agreements.
4.2.10 To invest and reinvest all or any specified portion of
cash or Other Assets (i) through the medium of any common trust fund which
has been or may hereafter be established and maintained by the Trustee, or
(ii) in shares of open end or closed end investment companies, including
companies for which the Trustee provides management or custodial services,
provided that, prior to investing any portion of the Trust Fund for the
first time in any such common trust fund or investment company, the Trustee
shall advise the Company of its intent to make such an investment and
furnish to the Company any information it may reasonably request with
respect to such investment.
4.2.11 To engage legal counsel, including counsel to the Company,
or any other suitable agents, to consult with such counsel or agents with
respect to the implementation or construction of this Trust Agreement, the
duties of the Trustee hereunder, the transactions contemplated by this
Trust Agreement or any act which the Trustee proposes to take or omit, to
rely upon the advice of such counsel or agents, and to pay any such
counsel's or agent's reasonable fees, expenses and compensation.
4.2.12 To register or hold any securities or other property held
by it in its own name or in the name of any custodian of such property or
of its nominee, including the nominee of any system for the central
handling of securities, with or without the addition of words indicating
that such securities are held in a fiduciary capacity, to deposit or
arrange for the deposit of any such securities with such a system and to
hold any securities in bearer form.
4.2.13 To make, execute and deliver, as Trustee, any and all
deeds, leases, notes, bonds, guarantees, mortgages, conveyances, contracts,
waivers, releases or other instruments in writing that are necessary or
proper for the accomplishment of any of the foregoing powers.
4.2.14 With the approval of the Committee as to all aspects of
the transaction, including, without limitation, interest rate, term and
identity of lender, to undertake a borrowing sufficient to enable the Trust
to acquire Company Stock.
4.2.15 Subject to Section 7 hereof, generally, to exercise any of
the powers of an owner with respect to property held in the Trust Fund.
SECTION 5 ESTABLISHMENT AND MAINTENANCE OF PARTICIPANT SCHEDULE.
5.1 FORM OF PARTICIPANT SCHEDULE. The Trustee may, from time to time,
request the Company to prepare and deliver to the Trustee in accordance
with Subsection 5.2 hereof, a schedule that sets forth the name of each
Participant entitled to receive a Benefit under a Plan or such group of
Participants, such as Eligible Participants, that the Trustee may need to
know in order to carry out the provisions of this Agreement.
5.2 MAINTAINING THE PARTICIPANT SCHEDULE. At the request of the
Trustee, the Company shall from time to time update the Participant
Schedule. Each Participant Schedule shall state the date as of which it
applies, and the Trustee shall be entitled to rely upon such Participant
Schedule, without a duty of further inquiry, until it receives an updated
Participant Schedule bearing a later date. Each Participant Schedule shall
contain all information concerning a Participant that the Trustee will need
to complete its responsibilities under this Agreement.
SECTION 6 MAINTENANCE OF TRUST.
6.1 TRUST ASSETS AND ALLOCATION TO PLANS. Subject to Section 17, the
Trustee shall hold all assets contributed or otherwise obtained by the
Trust and shall distribute such assets and any earnings thereon to such
Administrators, Participants or the Director, as provided for and in
accordance with this Trust Agreement or use such assets to pay obligations
of the Trust described in Section 9 or to repay a loan described in
Subsection 4.1.2.
6.2 VALUATION OF TRUST AND ACCOUNTS. The Trustee shall revalue the
Trust Fund as of the last business day of each calendar quarter. Shares of
Company Stock shall be valued at the Daily Value of Company Stock as of
such date.
6.3 TRUST STATEMENTS. As provided in Section 10.2, the Trustee shall
furnish a statement to the Company reflecting the assets held in the Trust
Fund and the value thereof within ten days after the end of each calendar
quarter.
SECTION 7 VOTING AND TENDER OF COMPANY STOCK HELD IN TRUST.
7.1 VOTING OF COMPANY STOCK. The Trustee shall vote (or act by
written consent with respect to) the shares of Company Stock held by the
Trust in accordance with, and by soliciting and receiving, directions from
or on behalf of Eligible Participants. As soon as practicable following the
record date in question, the Company shall deliver to the Trustee a
Participant Schedule listing Eligible Participants determined as of such
record date. Each Eligible Participant listed on such Participant Schedule
shall have the right to direct the vote (or written consent) with respect
to that number of shares of Company Stock held by the Trust that is derived
by multiplying the total number of shares of Company Stock held by the
Trust by X/Y, where (i) X is the sum of (a) the number of shares of Company
Stock allocated to the account of such Eligible Participant in the Savings
Plan and (b) the number of shares of Company Stock that are subject to
outstanding stock options granted to such Eligible Participant under the
Stock Option Plans, and where (ii) Y is the sum of (c) the number of shares
of Company Stock allocated to all Eligible Participants in the Savings Plan
who have given directions pursuant to this Subsection 7.1 and (d) the
number of shares of Company Stock subject to outstanding stock options
granted pursuant to the Stock Option Plans to all Eligible Participants in
the Stock Option Plans who have given directions pursuant to this
Subsection 7.1.
The Trustee shall devise and implement a procedure to assure
confidentiality of any directions given by or on behalf of Eligible
Participants in respect of votes (or written consents). All actions taken
by or on behalf of Eligible Participants pursuant to this Subsection 7.1
shall be held confidential by the Trustee and shall not be divulged or
released to any person, other than (i) agents of the Trustee who are not
affiliated with the Company or its Affiliates, (ii) by virtue of the
execution by the Trustee of any proxy, consent or letter of transmittal for
the shares of Company Stock held in the Trust, or (iii) as may be required
by court order.
7.2 TENDER RIGHTS. If any person shall commence a tender or exchange
offer with respect to the Company Stock, the Trustee shall tender or
exchange, or not tender or exchange, the shares of Company Stock held by
the Trust as directed by or on behalf of Eligible Participants, determined
as of the commencement of such tender or exchange offer, pursuant to the
tender or exchange instructions solicited by the Trustee. As soon as
practicable following the commencement of such tender or exchange offer,
the Company shall deliver to the Trustee a Participant Schedule listing the
Eligible Participants determined as of the commencement of such tender or
exchange offer. Each Eligible Participant listed on such Participant
Schedule shall have the right to direct the tender or exchange of that
number of shares of Company Stock held by the Trust that is derived by
multiplying the total number of shares of Company Stock held by the Trust
by X/Y, where (i) X is the sum of (a) the number of shares of Company Stock
allocated to the account of such Eligible Participant in the Savings Plan
and (b) the number of shares of Company Stock that are subject to
outstanding stock options granted to such Eligible Participant under the
Stock Option Plans, and where (ii) Y is the sum of (c) the number of shares
of Company Stock allocated to all Eligible Participants in the Savings Plan
who have given instructions pursuant to this Subsection 7.2 and (d) the
number of shares of Company Stock subject to outstanding stock options
granted pursuant to the Stock Option Plans to all Eligible Participants in
the Stock Option Plans who have given instructions pursuant to this
Subsection 7.2.
The Trustee shall devise and implement a procedure to assure the
confidentiality of any instructions given by or on behalf of Eligible
Participants in response to such offers. All actions taken by or on behalf
of Eligible Participants pursuant to this Subsection 7.2 shall be held
confidential by the Trustee and shall not be divulged or released to any
person, other than (i) agents of the Trustee who are not affiliated with
the Company or its Affiliates, (ii) by virtue of the execution by the
Trustee of any proxy, consent or letter of transmittal for the shares of
Company Stock held in the Trust, or (iii) as may be required by court
order.
7.3 NOTICES AND INFORMATION STATEMENTS. The Company shall provide the
Trustee in a timely manner with notices and information statements
(including proxy statements) when voting or consent rights are to be
exercised, and with respect to tender, exchange or similar offers, notices
and offer materials, at the same time and in the same manner (except to the
extent the Exchange Act requires otherwise) as such notices, information
statements, and offer materials are provided to shareholders of the Company
generally. The Trustee shall, in turn, provide all material received by the
Company pursuant to this Subsection 7.3 to Eligible Participants described
in Subsections 7.1 and 7.2, who do not otherwise receive such material.
7.4 DELEGATION BY TRUSTEE. It is intended by the Trustee and the
Company that the Trustee may delegate to the trustee of the Savings Plan or
to another entity designated by the Company (so long as the trustee of the
Savings Plan or such other entity is an institution that is unaffiliated
with the Company) its responsibility under Section 7.1 to solicit voting
instructions from Eligible Participants, its responsibility under Section
7.2 to solicit tender or exchange instructions from Eligible Participants
and its responsibility under Section 7.3 to distribute documents described
in Section 7.3 to Eligible Participants; provided that the trustee of the
Savings Plan or such other entity agrees to comply with the last sentence
of each of Sections 7.1 and 7.2.
SECTION 8 DISTRIBUTIONS FROM THE TRUST.
8.1 DISTRIBUTIONS OF COMPANY STOCK FROM THE TRUST. Except as
otherwise provided in Sections 9, 13 or 17, all distributions of Company
Stock from the Trust shall be used to provide for the payment of Benefits.
For shares acquired with the proceeds of a loan, distributions of Company
Stock from the Trust shall be made in proportion to the principal payment
made (or deemed forgiven) with respect to the loan used to acquire such
Company Stock described in Subsection 4.1.2. For purposes of the foregoing,
the proportion of the principal payment made (or deemed forgiven) with
respect to the loan shall be determined by dividing the amount of the
principal payment made (or deemed forgiven) by the sum of such principal
payment and the principal balance of the loan remaining after such payment.
The promissory note used to acquire shares from the Company on the date
hereof, a form of which is attached hereto as Schedule C, shall be deemed
to be and shall be treated as a loan under the terms of this Trust
Agreement.
8.1.1 RELEASE OF SHARES. The particular Plan with respect to
which any distribution from the Trust is made will be determined by the
Committee in accordance with the following directions: (a) to the extent
available, shares of Company Stock sufficient to meet the obligations of
the Company under the Stock Option Plans shall first be allocated to the
Administrator of such Stock Option Plans, (b) remaining shares of Company
Stock (if any), to the extent available and sufficient to meet the
obligations of the Company under the Savings Plan, shall be transferred to
the Administrator to make contributions to the Savings Plan, and (c)
remaining shares (if any) shall be transferred to the Director or
Administrators to make contributions to such Plans or to provide for the
payment of Benefits as determined by the Committee taking into account the
best interests of a broad cross-section of Participants, provided that it
is determined that such Plans or Benefits constitute contractual
liabilities of the Company or its Affiliates. If the earnings attributable
to the shares of Company Stock acquired with the proceeds of such loan
together with any contributions made by the Company are not sufficient to
enable the Trust to make interest payments and repayment of principal
under such loan that will cause a release and distribution of shares
sufficient to provide for the payment of Benefits described in 8.1.1(a) and
(b), then, to the extent of any such deficiency, such interest payments and
repayment of principal shall be deemed forgiven by the Company.
8.1.2 RELIANCE UPON COMMITTEE INSTRUCTION. From time to time, the
Committee or its designee shall inform the Trustee in writing of how many
shares are required to be distributed under Section 8.1.1 to provide for
the payment of Benefits under Subsections 8.1.1(a) and (b). The Trustee may
rely upon written instructions received from the Committee or its designee
to carry out the instructions contained in this Subsection 8.1 and shall
have no responsibility to verify or monitor the determinations made by the
Committee or its designee. If a principal payment has been made or forgiven
in excess of the amount necessary to provide for the payment of benefits
described in Subsections 8.1.1(a) and (b) and if no direction regarding
allocation of shares of Company Stock pursuant to clause (c) of Subsection
8.1.1 is received by the Trustee from the Committee or its designee, the
shares of Company Stock subject to such allocation under said clause (c)
shall be distributed to the Director to provide for the payment of
non-discretionary compensation of those Participants who are Employees
taking into account the best interests of a broad cross-section of such
Participants.
8.1.3 ACCELERATION. Notwithstanding anything herein to the
contrary, if the Trustee undertakes a loan to acquire Company Stock
pursuant to Subsection 4.1, any and all principal payments under such loan
may be accelerated at any time at the discretion of the Committee.
8.2 PROTECTION OF TRUSTEE. The Trustee shall, to the maximum extent
permitted by applicable law, be fully protected in acting upon any written
statement, affidavit or certification from the Company, the Committee or
its designee, or the Director. The Trustee shall at all times, to the
maximum extent permitted by applicable law, be fully protected in making
distributions pursuant to Sections 4, 8, 9, 13 and 17 hereof.
8.3 COMPANY OBLIGATIONS. Notwithstanding the provisions of this Trust
Agreement, the Company and its Affiliates shall remain obligated with
respect to the Benefits attributable to their respective employees. Nothing
in this Trust Agreement shall relieve the Company or any of its Affiliates
of their respective liabilities with respect to the Benefits except to the
extent such amounts are paid to a Plan or a Participant from the Trust, it
nevertheless being the Company's intent that the Trust Fund shall be
applied in discharge of the Company's legal obligations as provided in this
Trust Agreement. Notwithstanding anything herein to the contrary, no
payments will be made with respect to any plan pursuant to this Section 8
unless such plan gives rise to a contractual obligation of the Company and
is described in Schedule A.
8.4 TRUSTEE AS HOLDER OF LEGAL TITLE TO TRUST ASSETS. Subject to
Section 17 hereof, the Trustee shall hold legal title to all assets in the
Trust.
8.5 FEDERAL INCOME TAX CONSEQUENCES OF THE TRUST. The Trust Fund may
be applied in the discharge of legal obligations of the Company and for the
benefit of the Company's investments in its Affiliates as provided herein.
Accordingly, the Trust shall be treated as a grantor trust of the Company
under the Code, and the Company shall take into account in computing its
tax liability, those items of income, deductions and credits against tax
attributable to assets held in the Trust to which the Company would have
been entitled had the Trust not been in existence. The Trustee shall notify
the Company promptly after it becomes aware of any tax liability assessed
against, or imposed upon, the Trust or the Trustee in its capacity as
Trustee of the Trust. The Company shall be responsible for all matters in
respect of such assessment or imposition, and shall have sole
responsibility for any defense in connection therewith. Payments in respect
of any tax liability of the Company arising in connection with earnings,
gains or activities relating to the Trust, including, without limitation,
interest and penalties, shall be made from the Trust Fund after a final
determination of such liability, unless the Company promptly pays such
liability. In the event the assets of the Trust are insufficient to pay
such liability, any deficit shall be paid promptly by the Company.
SECTION 9 EXPENSES, COMPENSATION AND INDEMNIFICATION.
9.1 COMPENSATION. The Company shall pay the Trustee compensation in
accordance with the compensation schedule attached hereto as Schedule B,
unless the Company and the Trustee otherwise agree in writing
9.2 UNUSUAL EXPENSES. The Trustee shall be reimbursed by the Company
for extraordinary or unusual expenses that are approved in advance by the
Company. Normal, recurring expenses shall not be reimbursed by the
Company.
9.3 CHARGE ON TRUST FUND. All expenses and compensation referred to
in Sections 9.1 and 9.2 hereof shall be a charge on the Trust Fund and
shall constitute a lien on the Trust Fund in favor of the Trustee and shall
be payable from the Trust Fund unless paid by the Company within 60 days
after written notice to the Company. If not paid by the Company, amounts
for which the Trustee is indemnified under Subsection 9.4 hereof, shall,
with the approval of the Company, also be a charge on the Trust Fund and
shall constitute a lien on the Trust Fund. If the Company refuses to
approve such charge and lien, such amounts shall nevertheless be charged
against the Trust Fund and constitute a lien on the Trust Fund, if a court
of competent jurisdiction, after exhaustion of all appeals therefrom,
determines that the Trustee is entitled to such indemnification and the
Company has not otherwise paid the Trustee for such indemnified amounts.
9.4 INDEMNIFICATION. The Company hereby agrees to indemnify and hold
harmless the Trustee from and against any losses, costs, damages, claims or
expenses, including without limitation reasonable attorneys' fees, which
the Trustee may incur or pay out in connection with, or otherwise arising
out of:
9.4.1 the performance by the Trustee of its duties hereunder,
unless any such loss, cost, damage, claim or expense is a result of gross
negligence or willful misconduct by the Trustee; or
9.4.2 any action taken by the Trustee in good faith pursuant to
the written direction of the Company, the Committee or the Director.
In the event that any action or regulatory proceeding shall be
commenced or claim asserted which may entitle the Trustee to be indemnified
hereunder, the Trustee shall give the Company written notice of such action
or claim promptly after becoming aware of such commencement or assertion
unless the Company has otherwise received notice of such action or claim.
The Company shall be entitled to participate in and, upon notice to the
Trustee, assume the defense of any such action or claim using counsel
reasonably acceptable to the Trustee. The Trustee shall cooperate with the
Company in connection with the defense of any such action or claim.
SECTION 10 ADMINISTRATION AND RECORDS.
10.1 RECORDS. The Trustee shall keep or cause to be kept accurate and
detailed accounts of any investments, receipts, disbursements and other
transactions hereunder and, subject to the confidentiality requirements of
Subsections 7.1 and 7.21, all accounts, books and records relating thereto
shall be open to inspection and audit at all reasonable times by any person
designated by the Company. The Trustee shall preserve all such accounts,
books and records, in original form or on microfilm, magnetic tape or any
other similar process, for such period as the Trustee may determine, but
the Trustee may destroy such accounts, books and records only after first
notifying the Company in writing of its intention to do so and transferring
to the Company, subject to the confidentiality requirements of Subsections
7.1 and 7.2 hereof, any of such accounts, books and records that the
Company shall request.
10.2 SETTLEMENT OF ACCOUNTS. Subject to the confidentiality
requirements of Subsections 7.1 and 7.2, within 10 days after the close of
each calendar quarter, and within 60 days after the removal or resignation
of the Trustee or the termination of the Trust (or any portion thereof),
the Trustee shall file with the Company a written account setting forth all
investments, receipts, disbursements and other transactions effected by it
with respect to the Trust during the preceding calendar quarter or during
the period from the close of the preceding calendar quarter to the date of
such removal, resignation or termination, including a description of all
investments and securities purchased and sold, with the cost or net
proceeds of such purchases or sales, and showing all cash, securities and
other property, and the value thereof, held at the end of such calendar
quarter or other period.
It shall be the duty of the Company to review such written account
promptly within 90 days from the date of filing any such account and if,
within such 90-day period, the Company does not file with the Trustee a
written notice of objection to any of the Trustee's acts or transactions,
the initial account shall become an account stated between the Trustee and
the Company. If the Company files a written notice of objection with the
Trustee, the Trustee may file with the Company an adjusted account, in
which case it shall be the duty of the Company to review such adjusted
account promptly within 30 days from the date of its filing. If, within
such 30-day period, the Company fails to file a written notice of objection
to any of the Trustee's acts or transactions as so adjusted with the
Trustee, the adjusted account shall become an account stated between the
Trustee and the Company.
Unless an account is fraudulent, when it becomes an account stated it
shall be finally settled, and the Trustee shall, to the maximum extent
permitted by applicable law, be forever released and discharged from all
liability and accountability with respect to the propriety of its acts and
transactions shown in such account.
10.3 AUDIT. The Trustee shall from time to time permit an independent
public accountant selected by the Company to have access during ordinary
business hours to such records as may be necessary to audit, at the
Company's expense, the Trustee's accounts.
10.4 JUDICIAL SETTLEMENT. Nothing contained in this Trust Agreement
shall be construed as depriving the Trustee or the Company of the right to
have a judicial settlement of the Trustee's accounts. Upon any proceeding
for a judicial settlement of the Trustee's accounts or for instructions the
only necessary party thereto in addition to the Trustee shall be the
Company.
10.5 DELIVERY OF RECORDS TO SUCCESSOR. In the event of the removal or
resignation of the Trustee, the Trustee shall deliver to the successor
Trustee all records which shall be required by the successor Trustee to
enable it to carry out the provisions of this Trust Agreement.
10.6 TAX FILINGS. In addition to any returns required by the Trustee
by law (e.g., any information returns required to be filed on IRS Form
1041), the Trustee shall prepare and file such tax reports and other
returns as the Company and the Trustee may from time to time agree. Such
preparation and filing shall be at the expense of the Company.
SECTION 11 REMOVAL OR RESIGNATION OF THE TRUSTEE AND DESIGNATION OF
SUCCESSOR TRUSTEE.
11.1 REMOVAL. The Company may remove the Trustee with or without cause
upon at least 60 days' notice in writing to the Trustee. No removal of the
Trustee shall be effective until the Company has appointed in writing a
successor Trustee, and such successor has accepted the appointment in
writing.
11.2 RESIGNATION. The Trustee may resign at any time upon at least 60
days' notice in writing to the Company, except that any such resignation
shall not be effective until the Company has appointed in writing a
successor Trustee, and such successor has accepted the appointment in
writing. At any time after 30 days following the sending of such notice of
resignation, if the Company is unable to appoint a successor Trustee or if
a successor Trustee has not accepted an appointment, the Trustee shall be
entitled, at the expense of the Company, to petition a United States
District Court or any of the courts of the State of Delaware or other court
having jurisdiction to appoint its successor.
11.3 SUCCESSOR TRUSTEE. Subject to Subsection 2.1 hereof, each
successor Trustee, during such period as it shall act as such, shall have
the powers and duties herein conferred upon the Trustee, and the word
"Trustee" wherever used herein, except where the context otherwise
requires, shall be deemed to include any successor Trustee. Upon
designation of a successor Trustee and delivery to the resigned or removed
Trustee of written acceptance by the successor Trustee of such designation,
such resigned or removed Trustee shall promptly assign, transfer, deliver
and pay over to such Trustee, in conformity with the requirements of
applicable law, the funds and properties in its control or possession then
constituting the Trust Fund.
SECTION 12 ENFORCEMENT OF TRUST AGREEMENT.
12.1 RIGHTS OF PARTIES TO ENFORCE THE TRUST AGREEMENT. The Company and
the Trustee shall have the exclusive right to enforce any provision of this
Trust Agreement. In any action or proceeding affecting the Trust, the only
necessary parties shall be the Company and the Trustee and, except as
otherwise required by applicable law, no other person shall be entitled to
any notice or service of process. Any judgment entered in such an action or
proceeding shall, to the maximum extent permitted by applicable law, be
binding and conclusive on all persons having or claiming to have any
interest in the Trust or any Plan.
12.2 LIMITATION ON RIGHTS OF PARTICIPANTS, BENEFICIARIES AND OTHER
AFFILIATES. Except as otherwise provided in Section 7 hereof, neither the
Plans nor any Participant or Beneficiary shall have any rights with respect
to the Trust Fund until assets are distributed therefrom in accordance with
Section 8 hereof, no Plan shall be deemed to have any beneficial interest
in the Trust Fund, no Employee shall be deemed to have any beneficial
interest in the Trust Fund arising from his participation in any particular
Plan, and no Affiliate shall have or be deemed to have any interest in the
Trust.
SECTION 13 TERMINATION.
13.1 TERMINATION UPON SPECIFIC EVENTS. The Trust shall be terminated
as soon as practicable after the Trustee has received written notice from
the Committee that one or more of the following events has occurred:
13.1.1 the Department of Labor or a court of competent
jurisdiction has determined (or, in the Committee's sole discretion, would
be likely to determine) that the assets of the Trust are subject to Part 4
of Subtitle B of Title I of ERISA, or
13.1.2 the Internal Revenue Service or a court of competent
jurisdiction has determined (or, in the Committee's sole discretion, would
be likely to determine) that any portion of the Trust Fund is presently
taxable to any Participant or Beneficiary.
In the event of a termination pursuant to this Subsection 13.1, the
Trustee shall sell such shares of Company Stock held in the Trust as
necessary to repay all principal and interest remaining due under any
loans. The Trustee shall then distribute all remaining assets then
constituting the Trust Fund to the Administrator or Director to be
distributed in the form of Company Stock or cash (as provided pursuant to
the terms of a particular Plan) to Participants. Distributions shall first
be made to satisfy accrued, vested benefits described in (a) of Subsection
8.1.1 that are then payable; remaining assets, if any, shall be distributed
to satisfy benefits described in (b) of Subsection 8.1.1 that are then
payable; and remaining assets, if any, shall then be used to provide for
the payment of Benefits under one or more of the Plans described in
Schedule A, as determined by the Committee, taking into account the best
interest of a broad cross-section of Participants.
13.2 TERMINATION IN OTHER EVENTS. Notwithstanding anything herein to
the contrary, the Trust shall terminate on the earliest of (a) 20 years
following the date of this Trust Agreement, (b) the date on which the
Committee informs the Trustee in writing that the Company and its
Affiliates have no obligations under any Plans (or the date on which there
are no Plans) or (c) the date on which the Trust contains no assets and
retains no claims to recover assets from the Company and its Affiliates
pursuant to any provision hereof, whichever shall first occur. In the event
of a termination described in clause (a) of this Section 13.2, the Trustee
shall sell such shares of Company Stock held in the Trust as necessary to
repay all principal and interest remaining due under any loans. The
Trustee shall then distribute all remaining assets then constituting the
Trust Fund as provided in Section 13.1. In the event of a termination
described in clause (b) of this Section 13.2, the Trustee shall distribute
the assets remaining in the Trust Fund to all those persons who were
Participants immediately prior to the date on which the Company and its
Affiliates cease to have obligations under Plans or the date on which there
are no Plans as described in clause (b). Such distribution shall be made
pro rata based upon the number of shares allocated to the account of each
such Participant in the Savings Plan plus the number of shares subject to
outstanding options granted to each such Participant under the Stock Option
Plans as compared to the number of shares of Company Stock allocated to all
Participant accounts in the Savings Plan plus the total number of Shares
subject to outstanding options granted under the Stock Option Plans to
Participants.
13.3 LIMITATION ON TRUSTEE LIABILITY UPON TOTAL DISTRIBUTION;
CONTINUATION OF TRUSTEE POWERS. Upon a total distribution of the Trust
assets pursuant to Section 8 or this Section 13, the Trustee shall be
relieved from all further liability. The powers of the Trustee hereunder
shall continue so long as any assets of the Trust remain in its hands.
13.4 NONAPPLICABILITY OF ERISA. Notwithstanding anything herein to the
contrary, no amount shall be distributed to any Participant pursuant to
this Section 13 if such distribution could, in the opinion of independent
counsel, cause the Trust to be subject to ERISA (other than as an unfunded
plan described in ERISA section 201(2)). Prior to a distribution pursuant
to this Section, the Committee shall provide the Trustee with a Schedule of
Participants eligible for a distribution (taking into account this
subsection 13.4).
SECTION 14 AMENDMENT.
14.1 AMENDMENTS IN GENERAL. The Company may, in its sole discretion,
from time to time amend, in whole or in part, any or all of the provisions
of this Trust Agreement, including, without limitation, by adding to, or
subtracting from, Schedule A hereto one or more employee benefit plans
(within the meaning of Section 3(3) of ERISA) or plans or arrangements that
are not employee benefit plans (within the meaning of such Section);
provided, that (a) in making any modification to Schedule A hereto, the
Company shall act in good faith taking into account the best interests of a
broad cross-section of employees, and (b) the Company shall ensure that at
all times Schedule A shall include at least one employee benefit plan that
is not an employee benefit plan within the meaning of Section 3(3) of
ERISA. No amendment to this Trust Agreement or the Plans shall be made that
would (a) purport to alter the irrevocable character of the Trust, (b)
without the Trustee's prior written consent, adversely affect the Trustee's
rights, increase the Trustee's duties or responsibilities or decrease the
Trustee's compensation hereunder, or (c), without the approval of a
majority of the Eligible Participants, alter Sections 2.2, 7, 8 (except
that Section 8 may be expanded without such approval to describe the
requirements applicable to the release of shares of Company Stock acquired
by a contribution of cash or Company Stock to the Trust), 13 or this
Section 14. For purposes of determining approval by Eligible Participants,
each Eligible Participant shall have one vote for each share of Company
Stock allocated to such Eligible Participant's account in the Savings Plan
and one vote for each share subject to outstanding options to purchase
Company Stock granted under the Stock Option Plans to such Eligible
Participant. A vote in favor of an amendment by Eligible Participants
holding a majority of the total voting power, as described in the foregoing
sentence, shall constitute approval of such amendment.
14.2 SPECIFIC AMENDMENTS. Notwithstanding Subsection 14.1, the Company
may amend this Trust Agreement from time to time in such a manner as may be
necessary, in the opinion of independent counsel, to prevent this Trust
Agreement or the Trust from becoming subject to ERISA and to prevent the
current taxation of the Trust Fund to Participants.
SECTION 15 NONALIENATION.
15.1 PROHIBITION AGAINST CERTAIN TRANSFERS, PLEDGES, ETC.. Except as
otherwise provided by this Trust Agreement and except as otherwise may be
required by applicable law, (a) no amount payable to or in respect of any
Plan, Participant or Employee at any time under the Trust shall be subject
in any manner to alienation by anticipation, sale, transfer, assignment,
bankruptcy, pledge, attachment, charge, or encumbrance of any kind, and any
attempt to so alienate, sell, transfer, assign, pledge, attach, charge, or
otherwise encumber any such amount, whether presently or thereafter
payable, shall be void and (b) the Trust Fund shall in no manner be liable
for or subject to the debts or liabilities of any Participant.
SECTION 16 COMMUNICATIONS.
16.1 TO THE COMPANY, BOARD OF DIRECTORS AND COMMITTEE. Communications
to the Company, the Board of Directors and the Committee shall be addressed
to:
Tidewater Inc.
601 Poydras Street
Suite 1900
New Orleans, LA 70130
Attention: Chief Financial Officer
with a copy to:
Tidewater Inc.
601 Poydras Street
Suite 1900
New Orleans, LA 70130
Attention: General Counsel
provided, however, that upon the Company's written request, such
communications shall be sent to such other address as the Company may
specify.
16.2 TO THE TRUSTEE. Communications to the Trustee shall be addressed
to:
Whitney National Bank
Trust Department
228 St. Charles Avenue
New Orleans, LA 70130
Attention: Edward J. Welsch
with a copy to:
Whitney National Bank
Legal Department
228 St. Charles Avenue
New Orleans, LA 70130
Attention: Joseph Schwertz
provided, however, that upon the Trustee's written request, such
communications shall be sent to such other address as the Trustee may
specify.
16.3 TO A PARTICIPANT. Communications to a Participant or to his
Beneficiaries shall be addressed to the Participant or his Beneficiaries,
respectively, at the address indicated on the Participant Schedule as in
effect at the time of the communication.
16.4 BINDING UPON RECEIPT. No communication shall be binding on the
Trustee until it is received by the Trustee, and no communication shall be
binding on the Company, the Board of Directors or the Committee until it is
received by the Company, the Board of Directors or the Committee,
respectively. A communication shall be deemed binding on a Participant or
the Participant's Beneficiaries 60 days following the date notice is given
or sent pursuant to Subsection 16.3.
16.5 AUTHORITY TO ACT. The Secretary or Assistant Secretary of the
Company shall from time to time certify to the Trustee the person or
persons authorized to act for the Company, the Committee and the Board of
Directors, and shall provide the Trustee with such information regarding
the Company as the Trustee may reasonably request. The Trustee may continue
to rely on any such certification until notified to the contrary.
16.6 AUTHENTICITY OF INSTRUMENTS. The Trustee shall be fully protected
in acting upon any instrument, certificate, or paper reasonably believed by
it to be genuine and to be signed or presented by the proper person or
persons, and the Trustee shall be under no duty to make any investigation
or inquiry as to any statement contained in any such writing but may accept
the same as conclusive evidence of the truth and accuracy of the statements
therein contained.
SECTION 17 CLAIMS OF COMPANY'S BANKRUPTCY CREDITORS.
17.1 BANKRUPTCY CREDITORS. In the event of the Company's "insolvency,"
the assets of the Trust shall be available to pay the claims of any
creditor of the Company to whom a distribution may be made in accordance
with state and federal bankruptcy laws. The Company shall be deemed to be
"insolvent" if it is either (a) unable to pay its debts and liabilities as
they become due or (b) subject to a pending proceeding as a debtor under
the federal Bankruptcy Code (or any successor federal statute) or any state
bankruptcy code. In the event the Company becomes insolvent, the Board of
Directors and the Chief Executive Officer of the Company shall notify the
Trustee of the event as soon as practicable. Upon receipt of such notice,
or if the Trustee receives other written allegations of the Company's
insolvency from a third party considered by the Trustee to be reliable and
responsible, the Trustee shall cease making any distributions from the
assets of the Trust, shall hold the assets in the Trust for the benefit of
the Company's creditors and shall take such steps as are necessary to
determine within a reasonable period of time whether the Company is
insolvent. In making such determination, the Trustee may rely upon a
certificate of the Board of Directors and the Chief Executive Officer of
the Company or a determination by a court of competent jurisdiction that
the Company is or is not insolvent. In the case of the Trustee's
determination of the Company's insolvency, the Trustee will deliver assets
of the Trust to satisfy claims of the Company's creditors as directed
pursuant to a final order of a court of competent jurisdiction.
17.2 RESUMPTION OF BENEFITS; RESTORATION OF ACCOUNTS. In the event the
Trustee ceases making distributions by reason of Subsection 17.1, the
Trustee shall resume making distributions pursuant to Sections 4, 8, or 13
of this Agreement only after the Trustee has determined that the Company is
no longer insolvent or upon receipt of an order of a court of competent
jurisdiction requiring such distributions. In making any determination
under this Section, the Trustee may rely upon a certificate of the Board of
Directors and the Chief Executive Officer of the Company.
SECTION 18 CONSOLIDATION, MERGER OR SALE OF THE COMPANY.
18.1 CONSOLIDATION, MERGER OR SALE OF THE COMPANY. Effective upon
consolidation of the Company with, or merger of the Company with or into,
any corporation or corporations or other entity or entities, or any sale or
conveyance of all or substantially all of the assets of the Company, the
Trustee shall deal with the corporation formed by such consolidation, or
with or into which the Company is merged, or the person that acquires the
assets of the Company on the same basis as it dealt with the Company prior
to such transactions and, in such event, the term "Company" within this
Agreement shall mean such corporation or person.
SECTION 19 MISCELLANEOUS PROVISIONS.
19.1 BINDING EFFECT. This Trust Agreement shall be binding on the
Company and the Trustee and their respective successors and assigns.
19.2 INQUIRY AS TO AUTHORITY. A third party dealing with the Trustee
shall not be required to make inquiry as to the authority of the Trustee to
take any action nor be under any obligation to follow the proper
application by the Trustee of the proceeds of sale of any property sold by
the Trustee or to inquire into the validity or propriety of any act of the
Trustee.
19.3 RESPONSIBILITY FOR COMPANY ACTION. The Trustee assumes no
obligation or responsibility with respect to any action required by this
Trust Agreement on the part of the Company, the Board of Directors, the
Committee, any Affiliate, the Participants or any Beneficiaries. The
Trustee shall be under no duties except such duties as are specifically set
forth as such in this Trust Agreement or under applicable law, and no
implied covenant or obligation shall be read into this Trust Agreement
against the Trustee.
19.4 SUCCESSOR TO TRUSTEE. Subject to Subsection 2.1, any corporation
into which the Trustee may be merged or with which it may be consolidated,
or any corporation resulting from any merger, reorganization or
consolidation to which the Trustee may be a party, or any corporation to
which all or substantially all the trust business of the Trustee may be
transferred shall be the successor of the Trustee hereunder without the
execution or filing of any instrument or the performance of any act.
19.5 INTERCOMPANY AGREEMENTS. The Company may require any Affiliate to
enter into such other agreement or agreements as it shall deem necessary to
obligate such Affiliate to reimburse the Company for any other amounts paid
by the Company hereunder, directly or indirectly, in respect of such
Affiliate's employees.
19.6 TITLES NOT TO CONTROL. Titles to the Sections of this Trust
Agreement are included for convenience only and shall not control the
meaning or interpretation of any provision of this Trust Agreement.
19.7 LAWS OF THE STATE OF DELAWARE. This Trust Agreement and the
Trust established hereunder shall be governed by and construed, enforced,
and administered in accordance with the laws of the State of Delaware,
without reference to the principles of conflicts of law thereof.
19.8 FRACTIONAL SHARES. Notwithstanding anything herein to the
contrary, the Trustee may distribute any fractional share otherwise
required to be distributed to Administrators or Participants pursuant to
Sections 8 or 13, in cash in an amount equal to the Daily Value, multiplied
by such fraction.
19.9 COUNTERPARTS. For the purpose of facilitating the execution of
this Trust Agreement and for other purposes, this Trust Agreement may be
executed simultaneously in any number of counterparts, each of which
counterparts shall be deemed to be an original, and all of which
counterparts shall constitute but one and the same instrument.
IN WITNESS WHEREOF, this Trust Agreement has been duly executed
by the parties hereto as of the day and year first above written.
Tidewater Inc.
By: /S/ KEN C. TAMBLYN
Ken C. Tamblyn
Executive Vice President
Attest: /S/ MICHAEL L. GOLDBLATT
Michael L. Goldblatt
Assistant Secretary
Whitney National Bank
as Trustee
By: /S/ EDWARD J. WELSCH
Edward J. Welsch
Vice President
Attest: /S/ DENISE D. WILLIAMS
Denise D. Williams
Senior Vice President
<PAGE>
STATE OF LOUISIANA
PARISH OF ORLEANS
On the 29th day of January, 1999, before me personally came to me
Edward J. Welsch, who, being by me duly sworn, did depose and say that he
resides at 4919 Fairfield St., Metairie, LA 70006; that he is Vice
President of Whitney National Bank one of the corporations described in and
which executed the foregoing instrument; that he knows the seal of said
corporation; that the seal affixed to said instrument is such corporate
seal; that it was so affixed by order of the board of directors of said
corporation; and that he signed his name thereto by like order.
/S/ MARGARET F. MURPHY
Notary Public
STATE OF LOUISIANA
PARISH OF ORLEANS
On the 29th day of January, 1999, before me personally came to
me Ken C. Tamblyn, who, being by me duly sworn, did depose and say that he
resides at 1410 East Cherry Ct., Folsom, LA 70437; that he is Executive
Vice President of Tidewater Inc., one of the corporations described in and
which executed the foregoing instrument; that he knows the seal of said
corporation; that the seal affixed to said instrument is such corporate
seal; that it was so affixed by order of the board of directors of said
corporation; and that he signed his name thereto by like order.
/S/ MARGARET F. MURPHY
Notary Public
<PAGE>
Schedule A
LIST OF PLANS AND BENEFITS
1997 Stock Incentive Plan
1992 Stock Option and Restricted Stock Plan
1975 Incentive Program Stock Option Plan
Employee Restricted Stock Plan
401(k) Savings Plan
Annual Incentive Plan
Executive Officer Annual Incentive Plan
Supplemental Executive Retirement Plan
Employees' Supplemental Savings Plan
Regular Salary and Overtime
Supplemental Health Plan for Executive Officers
Health Care Plan
Managed Health Care Plan
Dental Plan
Short-Term Disability Plan
Basic Life and AD&D Insurance
Optional Life Insurance
Dependent Life Insurance
Optional AD&D Insurance
Administrative LTD Insurance
Fleet and TWC Non-Administrative Employees' LTD Insurance
Executive Medical Plan
Retiree Medical Insurance
Retiree Life Insurance
Business Travel Accident Insurance
LIST OF PLAN ADMINISTRATORS
The Company is the Administrator of all plans or arrangements except as
listed below.
The Director is the Administrator for Regular Salary and Overtime.
<PAGE>
<TABLE>
<CAPTION>
Schedule B
TRUSTEE'S COMPENSATION SCHEDULE
<S> <C>
One-Time Initiation Fee $1,000
Annual Maintenance Fee $10,000 per year
Transaction Fees $25 per transaction for a stock transfer or benefit
payment
$5 per person for pass-through voting to stock option
holders or $5 for pass-through voting to all stock
option holders, with no per person fee, if the
Trustee has delegated its authority to solicit voting
directions and tender instructions from stock option
holders to another entity designated by the Company
$5 for pass-through voting to all 401(k) Plan
participants (no per person fee if the Trustee has
delegated its authority to solicit voting directions
and tender instructions from Savings Plan
participants to the trustee of the Savings Plan or
another entity designated by the Company)
Extraordinary Compensation With the approval of the Company, the Trustee shall
be entitled to compensation for extraordinary
services rendered, such as in connection with
litigation, bankruptcy and/or prolonged disputes.
</TABLE>
<PAGE>
Schedule C
PROMISSORY NOTE
and
PAYMENT SCHEDULE
PROMISSORY NOTE
FOR VALUE RECEIVED this day of January 29, 1999, Whitney National
Bank, acting solely in its capacity as trustee (the "Trustee") of the
Tidewater Inc. Grantor Stock Trust established pursuant to the Tidewater
Inc. Grantor Trust Agreement (the "Trust Agreement"), hereby promises to
pay to order of Tidewater Inc. (the "Company") by January 29, 2019 (the
"Final Maturity Date") the principal sum of __________ __________
__________ __________ __________ __________ _________ Dollars and No/100
cents ($_______), together with interest on the unpaid principal balance
hereof commencing on the date hereof at a rate of 5% per year, in lawful
money of the United States of America.
Required payments of interest shall be made in accordance with the
attached payment schedule at quarterly intervals. Each annual principal
payment shall be made in such installments payable at such times as shall
be requested by the Committee, but minimum annual principal payments
(determined on a cumulative basis) shall be made in the amounts and by the
dates specified on the attached payment schedule. The Trustee shall have
the right to accelerate or prepay any amount of this Note at any time,
without premium or penalty. All optional and accelerated prepayments under
this Note shall be applied to the next principal payment due and shall be
accompanied by accrued and unpaid interest on the amount prepaid.
This Note is the Note referred to in, and is subject to and entitled
to the benefits of, the Stock Purchase Agreement dated as of January 29,
1999 (the "Stock Purchase Agreement"), between the Company and the Trustee.
Terms used herein shall have the meanings specified in the Stock Purchase
Agreement unless otherwise specified herein. The Stock Purchase Agreement,
among other things, contains provisions for repayments on account of
principal hereof prior to the maturity hereof upon the terms and conditions
therein specified.
Overdue principal and, to the extent permitted by law, overdue
interest payable by the Trustee hereunder shall bear interest at an
adjustable annual rate equal to one percent (1%) over the prime rate as
established by Whitney National Bank.
The Company shall have no recourse whatsoever to any assets of the
Trustee in its individual or corporate capacity for repayment. The Trustee
is entering into this promissory note not in its individual or corporate
capacity, but solely as Trustee, and no personal or corporate liability or
personal or corporate responsibility are assumed by, or shall at any time
be asserted or enforceable against, the Trustee in its individual or
corporate capacity under, or with respect to, this promissory note.
The Trustee hereby waives presentment, demand, notice, protest and all
other demands and notices in connection with the delivery, acceptance,
performance, default or enforcement of this Note.
This Note shall be binding upon the Trustee and its successors and
assigns. This Note shall be construed and enforced in accordance with the
laws of the State of Louisiana.
Whitney National Bank, as Trustee of
the Tidewater Inc. Grantor Stock Trust
By:
Edward J. Welsch
<PAGE>
PAYMENT SCHEDULE
INTEREST PAYMENTS
Quarterly on March 31, June 30, September 30, and December 31,
commencing on June 30, 1999.
MINIMUM PRINCIPAL PAYMENTS
Minimum annual principal reductions, calculated as a percentage of the
original principal amount, shall be made as follows:
Year 1 ending January 28, 2000 1%
2 ending January 28, 2001 1%
3 ending January 28, 2002 1%
4 ending January 28, 2003 1%
5 ending January 28, 2004 1%
6 ending January 28, 2005 5%
7 ending January 28, 2006 5%
8 ending January 28, 2007 5%
9 ending January 28, 2008 5%
10 ending January 28, 2009 5%
11 ending January 28, 2010 7%
12 ending January 28, 2011 7%
13 ending January 28, 2012 7%
14 ending January 28, 2013 7%
15 ending January 28, 2014 7%
16 ending January 28, 2015 7%
17 ending January 28, 2016 7%
18 ending January 28, 2017 7%
19 ending January 28, 2018 7%
20 ending January 28, 2019 7%
Principal payments shall be cumulative such that a reduction of
principal in excess of the required minimum in any year shall be counted
toward the required minimum principal reduction for future years, beginning
with the first year following the year in which the payment is made.
Exhibit 99.2
STOCK PURCHASE AGREEMENT
STOCK PURCHASE AGREEMENT dated as of January 29, 1999, between
Tidewater Inc., a Delaware corporation (the "Company"), and Whitney
National Bank, acting solely in its capacity as trustee under the Trust
defined below and not in its individual capacity (the "Trustee").
W I T N E S S E T H:
WHEREAS, the Company has established, effective as of January 29,
1999, the Tidewater Inc. Grantor Stock Trust (the "Trust"), and the
accompanying Trust Fund; and
WHEREAS, the Company has appointed the Trustee as the trustee of
the Trust which has been established to hold the assets of the Trust Fund
pursuant to the terms of the Trust Agreement dated as of January 29, 1999
by and between the Company and the Trustee (the "Trust Agreement"); and
WHEREAS, the Trust Agreement provides that the assets of the
trust created thereunder shall be invested primarily in shares of Company
Stock (as defined in the Trust Agreement); and
WHEREAS, the Company wishes to sell and the Trustee has
determined to purchase shares of common stock, $0.10 par value per share
(the "Company Stock") from the Company, in the amount and at the purchase
price as set forth in this Agreement;
NOW, THEREFORE, in consideration of these premises and the mutual
promises contained herein, the parties hereto, intending to be legally
bound, hereby agree as follows:
1. PURCHASE; PURCHASE PRICE. Subject to the terms and
conditions of this Agreement, the Trustee hereby agrees to purchase on
behalf of the Trust Fund (the "Purchase") from the Company, and the Company
hereby agrees to issue and sell to the Trustee, 5,000,000 shares (the
"Shares") of Company Stock for consideration consisting of $500,000 in
cash, plus the promissory note (the "Note") in the form attached as
Schedule C to the Trust Agreement (together, the "Aggregate Purchase
Price"). The principal amount of the Note together with the $500,000 cash
payment shall equal the closing sale price of a share of Company Stock on
the New York Stock Exchange Composite Tape on January 28, 1999 multiplied
by 5,000,000 Shares. The Purchase shall occur on the Delivery Date.
2. DELIVERY; PAYMENT. The Purchase of the 5,000,000 shares of
Company Stock shall be consummated at or about 10:00 a.m. on January 29,
1999 (such date of delivery being hereinafter called the "Delivery Date")
at the offices of the Company. The Company will direct its transfer agent,
Boston Equiserve (the "Transfer Agent") to register the Shares in the name
of the Trustee, as trustee under the Trust, or in the name of its nominee,
which the Transfer Agent will do in book entry form on its records, against
delivery to the Company by the Trustee of the applicable portion of the
Aggregate Purchase Price therefor by wire transfer of immediately available
funds. The Company will pay all stamp and other transfer taxes, if any,
which may be payable in respect of the issuance, sale and delivery of the
Shares, shall be entitled to any refund thereof.
3. REPRESENTATIONS, WARRANTIES AND COVENANTS OF THE COMPANY.
The Company hereby represents, warrants and covenants to the Trustee as
follows:
3.1 The Company has been duly incorporated and is validly
existing as a corporation in good standing under the laws of the State of
Delaware with corporate power and authority to own, lease and operate its
properties and conduct its business as described in its Annual Report for
the year ended March 31, 1998 and the Company is duly qualified as a
foreign corporation to transact business and is in good standing in each
jurisdiction where its ownership or leasing of properties or the conduct of
its business requires such qualification.
3.2 The execution, delivery and performance of this
Agreement and all other documents or instruments to be executed or
delivered by the Company in connection with this Agreement are within the
Company's powers and have been duly authorized by all necessary action.
This Agreement and all other documents or instruments to be executed or
delivered by the Company in connection with this Agreement are valid and
binding upon the Company, and enforceable against the Company in accordance
with their respective terms except as the enforceability thereof may be
limited by the effect of any applicable bankruptcy, insolvency, fraudulent
conveyance, reorganization, moratorium and similar laws affecting
creditors' rights generally and by general principles of equity (regardless
of whether considered in a proceeding at law or in equity).
3.3 The execution, delivery and performance of this
Agreement and the consummation of the transactions contemplated hereby will
not conflict with or result in a breach of any of the terms or provisions
of, or constitute a default under (i) the Certificate of Incorporation or
Bylaws, each as amended and restated to date, of the Company, or (ii) any
provision of any indenture, mortgage, deed of trust, agreement, instrument,
order, arbitration award, judgment or decree to which the Company or any of
its subsidiaries is a party or by which any of their respective assets are
bound, or (iii) any statute, rule or regulation applicable to the Company
or any of its subsidiaries of any court, bureau, board, agency or other
governmental body having jurisdiction, which conflict, breach or default
might have a material adverse effect.
3.4 The authorized, issued and outstanding capital stock of
the Company is as set forth in Schedule 1, and the Company has no
obligations to issue any additional shares pursuant to any options,
warrants, conversion rights or other arrangements (other than in accordance
with the terms of stock options granted under the Company's 1975 Incentive
Program Stock Option Plan, the Company's 1992 Stock Option and Restricted
Stock Plan and the Company's 1997 Stock Incentive Plan and other than the
preference share purchase rights issued in accordance with the terms of the
Rights Agreement between the Company and The First National Bank of Boston
dated as of September 19, 1996); all shares of issued and outstanding
capital stock of the Company have been duly authorized and are fully paid
and nonassessable; the Shares have been duly and validly authorized for
issuance and sale to the Trustee and the Shares when issued and delivered
by the Company pursuant to this Agreement against payment of the
consideration herein, will be validly issued and fully paid and
nonassessable; and the issuance of the Shares hereunder is not subject to
preemptive rights. The Company has full right and authority to issue, sell,
transfer and deliver the Shares and will effectively transfer to the
Trustee, on the Delivery Date, the full right, title and interest therein
and thereto, free and clear of all options, claims, charges, encumbrances,
agreements, trusts, equities and rights, whether contingent or absolute, of
any nature whatsoever.
3.5 No authorization, approval or consent of any
governmental authority or agency is necessary in connection with the sale
of the Shares by the Company hereunder; the Shares are being issued
pursuant to a valid exemption from registration under the Securities Act of
1933, as amended (the "Securities Act") and applicable state securities
laws.
3.6 The Trust Agreement has been duly authorized by all
necessary corporate action on the part of the Company.
4. REPRESENTATIONS, WARRANTIES AND COVENANTS OF THE TRUSTEE, AS
TRUSTEE. The Trustee, in its capacity as such, represents, warrants and
covenants as follows:
4.1 The Trustee (i) is a duly organized and validly
existing national banking association having trust powers in good standing
and with full authority to act as Trustee and exercise trust powers under
the laws of the United States and (ii) has full corporate power and
authority to execute and deliver the Trust Agreement and to carry out the
transactions contemplated thereby.
4.2 The execution, delivery and performance of this
Agreement will not violate (i) the Trustee's Charter or By-Laws, each as
amended or restated to date, (ii) any provision of any indenture, mortgage,
deed of trust, agreement, instrument, order, arbitration award, judgment or
decree to which the Trustee or the Trust is a party or by which it or the
Trust or any of their respective assets are bound, or (iii) any statute,
rule or regulation applicable to the Trustee or the Trust of any court,
bureau, board, agency or other governmental body having jurisdiction, which
conflict, breach or default might have a material adverse effect.
4.3 This Agreement and the Trust Agreement have been duly
executed and delivered by the Trustee on behalf of the Trust and each
constitutes the legal, valid and binding obligation of the Trust
enforceable against the Trustee in accordance with their respective terms,
except as the enforceability thereof may be limited by the effect of any
applicable bankruptcy, insolvency, fraudulent conveyance, reorganization,
moratorium and similar laws affecting creditors' rights generally and by
general principles of equity (regardless of whether considered in a
proceeding at law or in equity).
4.4 The Trustee is acquiring the Shares on behalf of the
Trust Fund pursuant to the Trust Agreement without a view toward, or for
sale in connection with, any distribution thereof (within the meaning of
such term under applicable federal and state securities laws), and the
Shares shall be acquired, held and distributed only as provided in the
Trust Agreement.
4.5 No authorization, approval or consent of any
governmental authority or agency is necessary in connection with the
purchase of the Shares by the Trustee on behalf of the Trust hereunder.
5. INDEMNIFICATION. The Company shall defend, indemnify and
hold the Trustee harmless against any action, claim, proceeding, demand,
loss, liability, damage or expense (including reasonable attorneys' fees)
that the Trustee may suffer as a result of the breach by the Company of any
representation, warranty or obligation of the Company hereunder.
6. CONDITIONS TO CLOSING.
6.1 CONDITIONS TO THE TRUSTEE'S OBLIGATIONS AT CLOSING. The
obligations of the Trustee hereunder are subject to the fulfillment at or
before each Delivery Date of each of the following conditions:
(a) The representations and warranties contained in Section
3 hereof shall be true on and as the Delivery Date and, if the Delivery
Date is a date other than the date hereof, the Trustee shall have been
furnished with a certificate, dated such Delivery Date, to such effect,
signed by an authorized officer of the Company.
(b) No order of any court or administrative agency shall be
in effect which restrains or prohibits the transactions contemplated by
this Agreement, and no suit, action or other proceedings by any
governmental body or other person shall have been instituted which
questions the validity or legality of the transactions contemplated by this
Agreement.
6.2 CONDITIONS TO THE COMPANY'S OBLIGATIONS AT DELIVERY.
The obligations of the Company hereunder are subject to the fulfillment at
or before each Delivery Date of each of the following conditions:
(a) The representations and warranties contained in Section
4 hereof shall be true on and as of the Delivery Date and, if the Delivery
Date is a date other than the date hereof, the Company shall have been
furnished with a certificate dated such Delivery Date, to such effect,
signed by an authorized officer of the Trustee.
(b) No order of any court or administrative agency shall be
in effect which restrains or prohibits the transactions contemplated by
this Agreement, and no suit, action or other proceedings by any
governmental body or other person shall have been instituted which
questions the validity or legality of the transactions contemplated by this
Agreement.
7. REGISTRATION OF SHARES. Upon the written request of the
Trustee, the Company agrees that, at the Company's expense, it will prepare
and file, as promptly as practicable after such request, and use its
reasonable efforts to cause to become effective, a registration statement
on an appropriate form, including a final prospectus (the "Registration
Statement"), under and complying with the Securities Act and the rules and
regulations thereunder, relating to that number of the Shares as the
Trustee shall have indicated in its request. Whenever Shares are so
registered, the Company shall also use its reasonable efforts to register
or qualify such shares covered by the Registration Statement under the
"blue sky" or securities laws of such jurisdictions within the United
States as the Trustee may reasonably request; provided, however, that the
Company shall not be required to consent to the general service of process
for all purposes in any jurisdiction where it is not then qualified to do
business.
8. COMPENSATION AND EXPENSES. The Company shall pay such
compensation to the Trustee and such expenses of the Trust and the Trustee
as are provided in the Trust Agreement and Schedule B thereto.
9. INTEGRATION; AMENDMENT. This Agreement (including the
documents delivered pursuant hereto) and the Trust Agreement constitute the
entire agreement and understanding between the parties hereto relating to
the purchase of the Shares and supersedes any prior agreement or
understanding relating in any way to the transaction contemplated hereby.
This Agreement may be modified or amended only by a written instrument
executed by or on behalf of the parties hereto. The headings and captions
contained herein are solely for the convenience of reference and do not
constitute a part of this Agreement or affect in any way its meaning or
construction.
10. SAVINGS CLAUSE. The invalidity, illegality or
unenforceability of any one or more of the provisions of this Agreement
shall in no way affect or impair the validity and enforceability of the
remaining provisions hereof. In the event any such provision shall be so
declared unenforceable due to its scope or breadth, it shall be narrowed to
the scope or breadth permitted by law.
11. COUNTERPARTS. This Agreement may be executed in one or more
counterparts, each of which shall be deemed an original and all of which
together shall constitute one and the same instrument. It shall not be
necessary that any single counterpart thereof be executed by all parties so
long as each party executed at least one counterpart.
12. GOVERNING LAW. This Agreement shall be construed and
enforced in accordance with the laws of the State of Delaware, without
regard to any principles of conflicts of law.
13. SURVIVAL OF REPRESENTATIONS AND WARRANTIES. All
representations and warranties in this Agreement shall survive the Delivery
Date.
14. NOTICES. Any notice or other communication required or
permitted hereunder shall be in writing, either delivered by hand, by mail,
or by telex, telefax or telegram (charges prepaid), and any such notice
shall be effective when received at the address specified below (or, if by
mail, three business days after deposited in the U.S. mails, registered or
certified mail, postage prepaid and return receipt requested):
If to the Company: Tidewater Inc.
601 Poydras Street
Suite 1900
New Orleans, LA 70130
Attention: Chief Financial Officer
With a copy to: Tidewater Inc.
601 Poydras Street
Suite 1900
New Orleans, LA 70130
Attention: General Counsel
If to the Trustee: Whitney National Bank
Trust Department
228 St. Charles Avenue
New Orleans, LA 70130
Attention: Edward J. Welsch
Addresses may be changed by written notice given pursuant to this
Section. Any notice given hereunder may be given on behalf of any party by
his counsel or other authorized representatives.
15. SPECIFIC PERFORMANCE. The parties hereto acknowledge that
damages would be an inadequate remedy for any breach of the provisions of
this Agreement and agree that the obligations of the parties hereunder
shall be specifically enforceable, and no party will take any action to
impede the other from seeking to enforce such right of specified
performance after any such breach.
16. SUCCESSORS AND ASSIGNS; ASSIGNABILITY. This Agreement shall
be binding upon and inure to the benefit of and be enforceable by the
parties hereto, and their respective legal representatives, successors and
assigns. This Agreement (a) shall not confer upon any person other than the
parties hereto and their respective successors and assigns any rights or
remedies hereunder; and (b) shall not be assignable by operation of law or
otherwise by any party hereto.
17. FURTHER ASSURANCES. Subject to the terms and conditions
herein provided, each of the parties hereto agrees to use all reasonable
efforts to take, or cause to be taken, all action and to do, or cause to be
done, all things necessary, proper or advisable to consummate and make
effective the transactions contemplated by this Agreement.
18. CERTAIN LIMITATIONS. Except as otherwise expressly provided
herein, the execution and delivery of this Agreement and the performance by
the Trustee of this Agreement have been, or will be, effected by the
Trustee solely in its capacity as Trustee and not individually.
IN WITNESS WHEREOF, the parties hereof have duly executed and
delivered this Agreement as of the date first above written.
Tidewater Inc.
By: /S/ KEN C. TAMBLYN
Name: Ken C. Tamblyn
Title: Executive Vice President
Whitney National Bank, solely in its capacity
as Trustee under the Tidewater Inc. Grantor
Stock Trust and not individually, except as
otherwise expressly provided herein
By: /S/ EDWARD J. WELSCH
Name: Edward J. Welsch
Title: Vice President
<PAGE>
Schedule I
as of December 31, 1998
Number of authorized shares: 125 million common
3 million preferred
Number of treasury shares 0
Number of issued and outstanding shares 55,559,523
