STOCK PURCHASE AGREEMENT
by and between
UNIFAB INTERNATIONAL, INC.
and
THE PURCHASERS LISTED ON SCHEDULE A
Dated as of September 26, 2000
STOCK PURCHASE AGREEMENT
This Stock Purchase Agreement (this "AGREEMENT") is dated as of
September 26, 2000 between UNIFAB International, Inc., a Louisiana
corporation (the "COMPANY"), and The Purchasers Listed On Schedule A (the
"PURCHASERS"). The Company and the Purchasers may hereinafter be referred
to collectively as the "PARTIES" or individually as a "PARTY." Except as
otherwise indicated herein, capitalized terms used herein are defined in
APPENDIX A.
PRELIMINARY STATEMENTS
----------------------
A. The Company wishes the Purchasers to make an equity investment in
the Company.
B. The Company and the Purchasers desire to enter into an agreement
pursuant to which the Purchasers will purchase from the Company, and the
Company will sell to the Purchasers, the common stock described herein.
NOW, THEREFORE, in consideration of the mutual promises and covenants
hereof, and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the Parties, intending to be
legally bound, hereby agree as follows:
STATEMENT OF AGREEMENT
----------------------
ARTICLE I
ISSUANCE AND PURCHASE OF SHARES
-------------------------------
1.1 ISSUANCE AND PURCHASE OF COMMON STOCK. Subject to the terms and
conditions of this Agreement, the Company shall sell to the Purchasers, and
the Purchasers shall purchase, severally and not jointly, from the Company,
each such Purchaser acquiring the number of shares specified opposite the
name of such Purchaser on APPENDIX A, an aggregate of Two Hundred Eighty
Eight Thousand (288,000) shares (the "SHARES") of the Company's common
stock, par value $.01 per share, for a purchase price of $9.50 per share
(the "PURCHASE PRICE").
1.2 SETTLEMENT. The settlement of the transactions contemplated
herein (the "SETTLEMENT") shall take place at the offices of Bass, Berry &
Sims PLC, 100 Peabody Place, Suite 950, Memphis, Tennessee 38103 at 10:00
a.m. Memphis, Tennessee time on or before September 27, 2000, or such other
time, date or place as the Parties may mutually agree (the "SETTLEMENT
DATE"). At the Settlement, (a) Purchasers shall pay to the Company, by
wire transfer of immediately available funds to such account or
accounts designated in writing by the Company, the Purchase Price per
share of Common Stock purchased pursuant hereto; (b) the Company shall
issue to Purchasers the Shares and deliver to Purchasers certificates
for the Shares duly registered in the name and in the denomination
specified by each Purchaser; and (c) the Company shall deliver
a legal opinion from the Company's counsel, Jones, Walker, Waechter,
1
Poitevent, Carrere & Denegre, L.L.P., in form and substance satisfactory
to Purchasers, and expressing the opinions identified on SCHEDULE 1.2(C)
hereto.
ARTICLE II
RESTRICTIONS ON TRANSFERABILITY
-------------------------------
The Shares shall not be transferred before satisfaction of the
conditions specified in this Article II, which conditions are intended to
ensure compliance with the provisions of the Securities Act and applicable
state securities laws with respect to the transfer of any Shares.
Purchasers, by entering into this Agreement and accepting the Shares, agree
to be bound by the provisions of this Article II.
2.1 RESTRICTIVE LEGEND. Except as otherwise provided in this Article
II, each certificate representing Shares (the "RESTRICTED COMMON STOCK")
shall be stamped or otherwise imprinted with a legend in substantially the
following form:
"THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE
"SECURITIES ACT"), OR ANY APPLICABLE STATE SECURITIES LAWS, AND MAY
NOT BE SOLD OR OTHERWISE TRANSFERRED, UNLESS AN EXEMPTION FROM
REGISTRATION UNDER THE SECURITIES ACT AND ANY APPLICABLE SECURITIES
LAWS, OR ANY RULE OR REGULATION PROMULGATED THEREUNDER, IS AVAILABLE
OR OTHERWISE IN COMPLIANCE THEREWITH. SUCH SECURITIES ARE SUBJECT TO
THE RESTRICTIONS AND PRIVILEGES SPECIFIED IN THE STOCK PURCHASE
AGREEMENT, DATED AS OF SEPTEMBER 26, 2000, BETWEEN UNIFAB
INTERNATIONAL, INC. AND THE PURCHASERS LISTED ON SCHEDULE A THERETO, A
COPY OF WHICH IS ON FILE WITH THE SECRETARY OF UNIFAB INTERNATIONAL,
INC. AND WILL BE FURNISHED WITHOUT CHARGE TO THE HOLDER HEREOF UPON
WRITTEN REQUEST. THE HOLDER OF THIS CERTIFICATE AGREES TO BE BOUND BY
THE TERMS AND CONDITIONS OF SUCH STOCK PURCHASE AGREEMENT."
2.2 TRANSFERS. Each Holder of Restricted Common Stock agrees that it
will not sell, transfer or otherwise dispose of any shares of Restricted
Common Stock, in whole or in part, except pursuant to an effective
registration statement under the Securities Act or an exemption from
registration thereunder. Each certificate, if any, evidencing such shares
of Restricted Common Stock issued upon such transfer shall bear the
restrictive legend set forth in Section 2.1, unless in the written opinion
of the transferee's or Holder's counsel delivered to the Company in
connection with such transfer (which opinion shall be reasonably
satisfactory to the Company) such legend is not required in order to ensure
compliance with the Securities Act.
2
2.3 TERMINATION OF RESTRICTIONS. The restrictions imposed by this
Article II upon the transferability of the Restricted Common Stock and the
legend requirement of Section 2.1 shall terminate as to any particular
Share (i) when such security shall have been disposed of pursuant to an
effective registration statement under the Securities Act, or (ii) when the
Holder thereof shall have delivered to the Company the written opinion of
counsel to such Holder, which opinion shall be reasonably satisfactory to
the Company, stating that such legend is not required in order to ensure
compliance with the Securities Act. Whenever the restrictions imposed by
this Article II shall terminate as to any Restricted Common Stock, as
herein above provided, the Holder thereof or a permitted transferee thereof
shall be entitled to receive from the Company, at the expense of the
Company, a new certificate representing such Common Stock, not bearing the
restrictive legend set forth in Section 2.1.
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF THE COMPANY.
----------------------------------------------
As a material inducement to Purchasers entering into this Agreement
and purchasing the Shares, the Company represents and warrants to
Purchasers as follows:
3.1 CORPORATE STATUS. The Company is a corporation duly
incorporated, validly existing and in good standing under the laws of the
State of Louisiana. The Company has all requisite corporate power and
authority to own or lease, as the case may be, its properties and to carry
on its business as now conducted. The Company and its Subsidiaries are
qualified or licensed to conduct business in all jurisdictions where its or
their ownership or lease of property and the conduct of its or their
business requires such qualification or licensing, except to the extent
that failure to so qualify or be licensed would not have a Material Adverse
Effect on the Company. There is no pending, or to the knowledge of the
Company threatened, proceeding for the dissolution, liquidation or
insolvency of the Company or any of its Subsidiaries.
3.2 CORPORATE POWER AND AUTHORITY. The Company has the corporate
power and authority to execute and deliver this Agreement and the
Registration Rights Agreement, to perform its obligations hereunder and
thereunder and to consummate the transactions contemplated hereby and
thereby. The Company has taken all necessary corporate action to authorize
the execution, delivery and performance of this Agreement and the
Registration Rights Agreement and the transactions contemplated hereby and
thereby.
3.3 ENFORCEABILITY. Each of this Agreement and the Registration
Rights Agreement of even date herewith between the Company and the
Purchasers (the "Registration Rights Agreement") has been duly executed and
delivered by the Company and constitutes a legal, valid and binding
obligation of the Company, enforceable against the Company in accordance
with its terms, except as the same may be limited by applicable bankruptcy,
insolvency, reorganization, moratorium or similar laws affecting the
enforcement of creditors' rights generally and general equitable principles
regardless of whether such enforceability is considered in a proceeding at
law or in equity.
3
3.4 NO VIOLATION. The execution and delivery by the Company of each
of this Agreement and the Registration Rights Agreement, the consummation
of the transactions contemplated hereby and thereby, and the compliance by
the Company with the terms and provisions hereof and thereof, will not (a)
result in a violation or breach of, or constitute, with the giving of
notice or lapse of time, or both, a material default (or give rise to any
right of termination, cancellation or acceleration) under, any of the
terms, conditions or provisions of any Contract to which the Company or any
of its Subsidiaries is a party or by which the Company or any of its
Subsidiaries or any material portion of the Company's or any of its
Subsidiaries' properties or assets may be bound, (b) violate any
Requirement of Law applicable to the Company or any of its Subsidiaries or
any material portion of the Company's or any of its Subsidiaries'
properties or assets or (c) result in the imposition of any Lien upon any
of the properties or assets of the Company or any of its Subsidiaries;
except where any of the foregoing would not have a Material Adverse Effect
on the Company.
3.5 CONSENTS/APPROVALS. The Company has obtained any and all
consents, approvals, authorizations, waivers or other actions under
Requirements of Law or by any Person(s) under any Contract(s) to which
either the Company or any of its Subsidiaries is a party, or by which any
of their respective properties or assets are bound, which are required or
necessary for the execution, delivery or performance by the Company of this
Agreement or the Registration Rights Agreement and the consummation of the
transactions contemplated hereby and thereby, except where the failure to
obtain such consents, authorizations, approvals, waivers or other actions
would not have a Material Adverse Effect on the Company.
3.6 CAPITALIZATION. The authorized capital stock of the Company
consists of 20,000,000 shares of Common Stock and 5,000,000 shares of
preferred stock. As of September 1, 2000, the Company had outstanding
6,825,950 shares of Common Stock, all of which were duly authorized,
validly issued, fully paid and non-assessable and had no outstanding shares
of preferred stock. Except (a) as contemplated by this Agreement, (b)
options to acquire no more than 888,000 shares of Common Stock under the
Company's option plans, and (c) as set forth in the Company's SEC Reports,
there are (y) no rights, options, warrants, convertible securities,
subscription rights or other agreements, calls, plans, contracts or
commitments of any kind relating to the issued or unissued capital stock
of, or other equity interest in, the Company outstanding or authorized and
(z) no contractual obligations of the Company to repurchase, redeem or
otherwise acquire any shares of the Common Stock. Upon delivery to the
Purchasers of the certificates representing the Shares and payment of the
Purchase Price, the Purchasers will acquire good, valid and marketable
title, without any Lien thereon, subject to the limitations on
transferability contained in this Agreement or imposed pursuant to the
Securities Act, to and beneficial and record ownership of the Shares, and
the Shares will be validly issued, fully paid and non-assessable. The
Company has duly reserved, solely for purposes of issuance upon exercise of
warrants to purchase Common Stock issued to Morgan Keegan & Company, Inc.
(the "Placement Warrant"), the shares of Common Stock issuable upon
exercise of the Placement Warrant.
3.7 SEC REPORTS AND NASDAQ ELIGIBILITY. Since September 30,
1998, the Company has made all filings (the "SEC
REPORTS") required to be made by it under the Securities Act and
4
the Exchange Act. The SEC Reports, when filed, complied in all material
respects with all applicable requirements of the Securities Act and the
Exchange Act and the securities laws, rules and regulations of any state
and pursuant to any Requirements of Law. The SEC Reports, when filed, did
not contain an untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary in order to make
the statements made therein, in light of the circumstances under which
they were made, not misleading. The Company has delivered or made
accessible to Purchasers true, accurate and complete copies of the SEC
Reports which were filed with the SEC since September 30, 1998. The
Company's Common Stock is currently eligible for trading on the Nasdaq
National Market.
3.8 FINANCIAL STATEMENTS. Each of the balance sheets included in the
SEC Reports (including any related notes and schedules) fairly presents in
all material respects the consolidated financial position of the Company
and its Subsidiaries as of its date, and each of the other financial
statements included in the SEC Reports (including any related notes and
schedules) fairly presents in all material respects the consolidated
results of operations or other information therein of the Company and its
Subsidiaries for the periods or as of the dates therein set forth in
accordance with GAAP consistently applied during the periods involved
(except that the interim reports are subject to normal recording
adjustments which might be required as a result of year-end audit and
except as otherwise stated therein).
3.9 UNDISCLOSED LIABILITIES. Except for liabilities and losses
incurred in the ordinary course of business since June 30, 2000, the
Company and its Subsidiaries do not have any material direct or indirect
indebtedness, liability, claim, loss, damage, deficiency, obligation or
responsibility, fixed or unfixed, choate or inchoate, liquidated or
unliquidated, secured or unsecured, subordinated or unsubordinated, matured
or unmatured, accrued, absolute, contingent, regulatory or administrative
charges or lawsuits brought, whether or not of a kind required by GAAP to
be set forth on a financial statement, that were not fully and adequately
reflected or reserved for in the financial statements contained in the
Company's Quarterly Report on Form 10-Q for the fiscal quarter ended June
30, 2000 or otherwise disclosed in the SEC Reports.
3.10 MATERIAL CHANGES. Except as set forth in the SEC Reports, since
June 30, 2000 there has been no Material Adverse Change in the Company. In
addition, the description of the Company's business contained in the
Company's Annual Report on Form 10-K for the fiscal year ended March 31,
2000 is not materially inconsistent with its current operations. Except as
set forth in the SEC Reports, since June 30, 2000 there has not been
(i) any direct or indirect redemption, purchase or other acquisition by the
Company of any shares of Common Stock or (ii) declaration, setting aside or
payment of any dividend or other distribution by the Company with respect
to the Common Stock.
3.11 LITIGATION. Except as set forth in the SEC Reports, neither the
Company nor any of its Subsidiaries has received any notice of any
outstanding judgments, rulings, orders, writs, injunctions, awards or
decrees of any court, Governmental Authority or other authority against the
Company or its Subsidiaries which could have a Material Adverse Effect.
Except as set forth in the SEC Reports, neither the Company nor any of its
Subsidiaries is party to any litigation or similar proceeding which will
have a Material Adverse Effect on the Company.
5
3.12 INVESTMENT COMPANY. The Company is not and after giving effect
to the sale of the Shares will not be an "investment company" or an entity
"controlled" by an "investment company" as such terms are defined in the
Investment Company Act of 1940, as amended.
3.13 NO COMMISSIONS. Except for fees payable to Morgan Keegan &
Company, Inc., the Company has not incurred any obligation for any finder's
or broker's or agent's fees or commissions in connection with the purchase
of the Shares.
3.14 EXEMPTION FROM REGISTRATION. Subject to and in reliance in part
on the truth and accuracy of the Purchasers' representations set forth in
this Agreement, the offer, sale and issuance of the Restricted Common Stock
as contemplated by this Agreement are exempt from the registration
requirements of the Securities Act and any applicable state securities
laws, and neither the Company nor any authorized agent acting on its behalf
will take any action hereafter that would cause the loss of such exemption.
3.15 DISCLOSURE. The Confidential Memorandum dated as of September 6,
2000 (the "CONFIDENTIAL MEMORANDUM") furnished by the Company to the
Purchasers, including the SEC Reports referred to therein, taken as a
whole, did not contain an untrue statement of a material fact or omit to
state a material fact required to be stated therein or necessary in order
to make the statements made therein, in light of the circumstances under
which they were made, not misleading.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF PURCHASERS
--------------------------------------------
As a material inducement to the Company entering into this Agreement
and selling the Shares, each Purchaser, severally and not jointly,
represents and warrants to the Company as follows:
4.1 INVESTMENT INTENT. The Purchaser is acquiring the Shares for the
Purchaser's own account and with no present intention of distributing or
selling the Shares or any interest in the Shares. The Purchaser agrees
that it will not sell or otherwise dispose of any of the Shares or any
interest in the Shares unless such sale or other disposition has been
registered or qualified (as applicable) under the Securities Act and
applicable state securities laws or, in the opinion of the Purchaser's
counsel delivered to the Company (which opinion shall be reasonably
satisfactory to the Company) such sale or other disposition is exempt from
registration or qualification under the Securities Act and applicable state
securities laws. The Purchaser understands that the sale of the Shares
acquired by the Purchaser hereunder has not been registered under the
Securities Act, but the Shares are issued through transactions exempt from
the registration and prospectus delivery requirements of Section 4(2) of
the Securities Act, and that the reliance of the Company on such exemption
from registration is predicated in part on these representations
and warranties of the Purchaser. The Purchaser acknowledges that
pursuant to Section 2.1 a restrictive legend consistent with the
foregoing has been or will be placed on the certificates representing the
6
Shares until such legend is permitted to be removed under applicable law.
The Purchaser will have no right to require registration of the Shares, and
the Company is under no obligation to cause an exemption to be available,
except as provided in the Registration Rights Agreement.
4.2 ADEQUATE INFORMATION. The Company has made available and the
Purchaser has reviewed such information that the Purchaser considers
necessary or appropriate to evaluate the risks and merits of an investment
in the Shares (including, without limitation, the Company's Form 10-K for
the fiscal year ended March 31, 2000, Form 10-Q for the quarterly period
ended June 30, 2000, and Current Reports on Form 8-K since April 1, 2000.
4.3 OPPORTUNITY TO QUESTION. The Purchaser has had the opportunity
to question, and, to the extent deemed necessary or appropriate, has
questioned representatives of the Company so as to receive answers and
verify information obtained in the Purchaser's examination of the Company,
including the information that the Purchaser has reviewed in relation to
its investment in the Shares.
4.4 NO OTHER REPRESENTATIONS. The Purchaser acknowledges that no
representations or warranties of any type or description have been made to
it by any Person with regard to the Company, any of its Subsidiaries, any
of their respective businesses, properties or prospectus or the investment
contemplated herein, other than the representations and warranties set
forth in Article III hereof and the information contained in the
Confidential Memorandum. The Purchaser has not made its decision to
acquire Shares or to execute and deliver this Agreement on the basis of any
belief that any officer, director or affiliate of the Company or any
current stockholder of the Company would make an investment in the Company
now or in the future.
4.5 KNOWLEDGE AND EXPERIENCE. The Purchaser is a Qualified
Institutional Buyer as such term is defined in Rule 144A under the
Securities Act. The Purchaser has such knowledge and experience in
financial, tax and business matters, including substantial experience in
evaluating and investing in common stock and other securities (including
the common stock and other securities of new and speculative companies), so
as to enable the Purchaser to utilize the information made available to the
Purchaser in order to evaluate the merits and risks of an investment in the
Shares and to make an informed investment decision with respect thereto.
4.6 ADDITIONAL INFORMATION. If there should be any material change
in the information set forth herein or in the Purchaser Suitability
Questionnaire prior to the closing of the sale of the Shares, the Purchaser
will immediately furnish such revised or corrected information to the
Company.
4.7 OFFERING MEMORANDUM. The Purchaser has received a copy of the
Confidential Memorandum dated September 6, 2000. Except for the
information contained in the Memorandum and except for the information that
the Purchaser or its advisors, if any, have requested, neither the
Purchaser nor its advisors has been furnished any offering material or
literature by the Company.
7
4.8 INDEPENDENT DECISION. The Purchaser is not relying on the
Company or on any legal or other opinion in the materials reviewed by the
Purchaser with respect to the financial or tax considerations of the
Purchaser relating to its investment in the Shares. The Purchaser has
relied solely on the representations, warranties, covenants and agreements
of the Company in this Agreement (including the Exhibits and Schedules
hereto) and on its examination of the Confidential Memorandum and
independent investigation in making its decision to acquire the Shares.
The Purchaser has been afforded the opportunity to obtain, and has been
furnished, all material that it has requested relating to the proposed
operation of the Company, any other matters relating to the business and
properties of the Company and the offering and sale of the Shares.
4.9 LEGAL EXISTENCE AND AUTHORITY. If the Purchaser is a
corporation, partnership, limited liability company, trust or other entity,
the Purchaser has been duly formed and is validly existing and in good
standing under the laws of the jurisdiction of its formation with full
power and authority to acquire and hold the Shares and to execute, deliver
and comply with the terms of this Agreement and such other documents
required to be executed and delivered by the undersigned in connection with
this subscription.
4.10. NO DEFAULTS OR CONFLICTS. The execution and delivery of this
Agreement by the Purchaser and the performance of its obligations hereunder
does not conflict with or constitute a default under any instruments
governing the Purchaser, or any law, regulation, order or agreement to
which the Purchaser is a party or to which the undersigned is bound.
4.12. VALIDITY; ENFORCEABILITY; BINDING EFFECT. This Agreement and
the Registration Rights Agreement delivered herewith have been duly and
validly authorized, executed and delivered by the Purchaser, and the
agreements herein and therein constitute valid, binding and enforceable
agreements of the Purchaser, subject to applicable bankruptcy, insolvency,
reorganization, moratorium or similar laws affecting the enforcement of
creditors' rights generally and general equitable principles regardless of
whether such enforceability is considered in a proceeding at law or in
equity. The Purchaser is not a partnership, common trust fund, special
trust, pension fund, retirement plan or other entity in which the partners
or participants, as the case may be, may designate the particular
investments to be made or the allocation thereof.
4.13. CONFIDENTIALITY. The Purchaser has agreed not to disclose and
to maintain as confidential and use solely for purposes of evaluating the
transaction described herein all non-public information related to the
Company of which it is in possession. Unless required by law, the
Purchaser has not disclosed and shall not disclose, and shall maintain
confidential any non-public information related to the Company, provided
that the undersigned may disclose such information to any of its advisors,
attorneys and accountants, if such advisor, attorney and/or accountant
shall have agreed to be bound by this provision.
8
ARTICLE V
COVENANTS
---------
5.1 FILINGS. Each of the Company and the Purchasers shall make on a
prompt and timely basis all governmental or regulatory notifications and
filings required to be made by it for the consummation of the transactions
contemplated hereby.
5.2 FURTHER ASSURANCES. Each of the Company and the Purchasers shall
execute and deliver such additional instruments and other documents and
shall take such further actions as may be necessary or appropriate to
effectuate, carry out and comply with all of the terms of this Agreement
and the transactions contemplated hereby.
5.3 COOPERATION. Each of the Company and the Purchasers agree to
cooperate with the other in the preparation and filing of all forms,
notifications, reports and information, if any, required or reasonably
deemed advisable pursuant to any Requirement of Law in connection with the
transactions contemplated by this Agreement and to use their respective
commercial reasonable efforts to agree jointly on a method to overcome any
objections by any Governmental Authority to any such transactions; provided
that, any reasonable, out-of-pocket expenses incurred by the Purchasers
shall be reimbursed by the Company. Except as may be specifically required
hereunder, none of the Parties or their respective Affiliates shall be
required to agree to take any action that in the reasonable opinion of such
Party would result in or produce a Material Adverse Effect on such Party.
5.4 NOTIFICATION OF CERTAIN MATTERS. Each of the Company and the
Purchasers shall give prompt notice to the other of the occurrence, or non-
occurrence, of any event which would be likely to cause any representation
or warranty herein to be untrue or inaccurate, or any covenant, condition
or agreement herein not to be complied with or satisfied.
ARTICLE VI
INDEMNIFICATION
---------------
6.1 INDEMNIFICATION GENERALLY. The Company, on the one hand, and the
Purchasers, severally and not jointly, on the other hand, shall indemnify
the other, including any of its respective officers, directors, employees,
agents, investment advisers and controlling persons, from and against any
and all losses, damages, liabilities, claims, charges, actions,
proceedings, demands, judgments, settlement costs and expenses of any
nature whatsoever (including, without limitation, attorneys' fees and
expenses) or deficiencies resulting from any breach of a representation,
warranty or covenant by the Indemnifying Party (as hereinafter defined)
(including indemnification by the Company of the Purchasers for any failure
by the Company to deliver, or for any failure by the Purchasers to receive,
stock certificates representing the Shares on the Settlement Date) and all
claims, charges, actions or proceedings incident to or arising out
9
of the foregoing ("LOSSES"). Notwithstanding the foregoing, the
Indemnifying Party shall not be liable for any Losses to the extent such
Losses arise out of, result from, or are increased by, the breach of this
Agreement by, or the fraudulent acts of, the Indemnified Party (as
hereinafter defined).
6.2 INDEMNIFICATION PROCEDURES. Each Person entitled to
indemnification under this Article VI (an "INDEMNIFIED PARTY") shall give
notice as promptly as reasonably practicable to each party required to
provide indemnification under this Article VI (an "INDEMNIFYING PARTY") of
the commencement of any action, suit, proceeding or investigation or threat
thereof made in writing in respect of which indemnity may be sought
hereunder; provided, however, failure to so notify an Indemnifying Party
shall not relieve such Indemnifying Party from any liability that it may
have otherwise than on account of this indemnity agreement so long as such
failure shall not have materially prejudiced the position of the
Indemnifying Party. Upon such notification, the Indemnifying Party shall
assume the defense of such action if it is a claim brought by a third
party, and after such assumption the Indemnified Party shall not be
entitled to reimbursement of any legal expenses incurred by it in
connection with such action except as described below. In any such action,
any Indemnified Party shall have the right to retain its own counsel, but
the fees and expenses of such counsel shall be at the expense of such
Indemnified Party unless (i) the Indemnifying Party and the Indemnified
Party shall have mutually agreed to the contrary or (ii) the named parties
in any such action (including any impleaded parties) include both the
Indemnifying Party and the Indemnified Party and representation of both
parties by the same counsel would be inappropriate due to actual or
potential differing or conflicting interests between them. An Indemnifying
Party who is not entitled to, or elects not to, assume the defense of a
claim shall not be obligated to pay the fees and expenses of more than one
counsel in any one jurisdiction for all parties indemnified by such
Indemnifying Party with respect to such claim, unless in the reasonable
judgment of any Indemnified Party a conflict of interest may exist between
such Indemnified Party and any other of such Indemnified Parties with
respect to such claim, in which event the Indemnifying Party shall be
obligated to pay the fees and expenses of such additional counsel or
counsels. The Indemnifying Party shall not be liable for any settlement of
any proceeding effected without its written consent (which shall not be
unreasonably withheld or delayed by such Indemnifying Party), but if
settled with such consent or if there be final judgment for the plaintiff,
the Indemnifying Party shall indemnify the Indemnified Party from and
against any Losses.
ARTICLE VII
MISCELLANEOUS
-------------
7.1 NOTICES. All notices, requests, demands, claims, and other
communications hereunder shall be in writing and shall be delivered by
certified or registered mail (first class postage pre-paid), guaranteed
overnight delivery, or facsimile transmission if such transmission is
confirmed by delivery by certified or registered mail (first class postage
pre-paid) or guaranteed overnight delivery, to the following addresses and
telecopy numbers (or to such other addresses or telecopy numbers which such
Party shall designate in writing to the other Party):
10
(a) if to the Company to:
UNIFAB International, Inc.
5007 Fort Road
New Iberia, Louisiana 70562
Attention: Chief Executive Officer
Telecopy: (337) 367-8291
with a copy to:
Jones, Walker, Waechter, Poitevent, Carrere & Denegre,
L.L.P.
201 St. Charles Avenue
New Orleans, Louisiana 70170-5100
Attention: Carl Hanemann
Telecopy: (504) 589-8156
(b) if to a Purchaser, at its last known address appearing on the
books of the Company maintained for such purpose with a copy to:
Bass, Berry & Sims PLC
100 Peabody Place, Suite 950
Memphis, Tennessee 38103
Attention: John A. Good
Telecopy: (901) 543-5901
and
Kirkpatrick & Lockhart LLP
1800 Massachusetts Avenue, NW
Washington, DC 20036
Attention: Thomas F. Cooney, III
Telecopy: (202) 778-9100
7.2 LOSS OR MUTILATION. Upon receipt by the Company from any Holder
of evidence reasonably satisfactory to it of the ownership of and the loss,
theft, destruction or mutilation of a certificate representing Shares and
indemnity reasonably satisfactory to it (it being understood that the
written agreement of the Holder or an Affiliate thereof shall be sufficient
indemnity) and in case of mutilation upon surrender and cancellation
thereof, the Company will execute and deliver in lieu thereof a new stock
certificate of like tenor to such Holder; provided, in the case of
mutilation, no indemnity shall be required if the certificate representing
Shares in identifiable form is surrendered to the Company for cancellation.
7.3 SURVIVAL. Each representation, warranty, covenant and agreement
of the parties set forth in this Agreement is independent of each other
representation, warranty, covenant and agreement. Each representation
and warranty made by any Party in this Agreement shall survive
11
the Settlement through the period ending on the date one year from the
date of this Agreement. Notwithstanding the foregoing, the Purchasers
expressly acknowledges that, pursuant to Section 2.1 a restrictive legend
will be placed on the certificates representing the Shares until such
legend is permitted to be removed under applicable law.
7.4 REMEDIES.
--------
(a) Each Party acknowledges that the other Parties would not
have an adequate remedy at law for money damages in the event that any of
the covenants or agreements of such Party in this Agreement was not
performed in accordance with its terms, and it is therefore agreed that
each Party in addition to and without limiting any other remedy or right
such Party may have, shall have the right to an injunction or other
equitable relief in any court of competent jurisdiction, enjoining any such
breach and enforcing specifically the terms and provisions hereof.
(b) All rights, powers and remedies under this Agreement or
otherwise available in respect hereof at law or in equity shall be
cumulative and not alternative, and the exercise or beginning of the
exercise of any thereof by any Party shall not preclude the simultaneous or
later exercise of any other such right, power or remedy by such Party.
7.5 ENTIRE AGREEMENT. This Agreement (including the exhibits,
appendices and schedules attached hereto) and other documents delivered at
the Settlement pursuant hereto (including the Registration Rights
Agreement), contain the entire understanding of the Parties in respect of
the subject matter hereof and supersede all prior agreements and
understandings between or among the Parties with respect to such subject
matter. The exhibits and schedules hereto constitute a part hereof as
though set forth in full above.
7.6 EXPENSES; TAXES. Except as otherwise provided in this Agreement,
the Parties shall pay their own fees and expenses, including their own
counsel fees, incurred in connection with this Agreement or any transaction
contemplated hereby. Further, except as otherwise provided in this
Agreement, any sales tax, stamp duty, deed transfer or other tax (except
taxes based on the income of the Purchasers) arising out of the sale of the
Shares by the Company to the Purchasers and consummation of the
transactions contemplated by this Agreement shall be paid by the Company.
7.7 AMENDMENT. This Agreement may be modified or amended or the
provisions hereof waived with the written consent of the Company and the
Purchasers.
7.8 WAIVER. No failure to exercise, and no delay in exercising, any
right, power or privilege under this Agreement shall operate as a waiver,
nor shall any single or partial exercise of any right, power or privilege
hereunder preclude the exercise of any other right, power or privilege. No
waiver of any breach of any provision shall be deemed to be a waiver of any
preceding or succeeding breach of the same or any other provision, nor
shall any waiver be implied from any course of dealing between the Parties.
No extension of time for performance of any obligations or other acts
hereunder or under any other agreement shall be deemed to be an
12
extension of the time for performance of any other obligations or any other
acts. The rights and remedies of the Parties under this Agreement are in
addition to all other rights and remedies, at law or equity, that they may
have against each other.
7.9 BINDING EFFECT; ASSIGNMENT. The rights and obligations of this
Agreement shall bind and inure to the benefit of the Parties and their
respective successors and legal assigns. The provisions of this Agreement
are intended to be for the benefit of all Holders from time to time of the
Shares and shall be enforceable by any such Holder.
7.10 COUNTERPARTS. This Agreement may be executed in any number of
counterparts, each of which shall be an original but all of which together
shall constitute one and the same instrument.
7.11 HEADINGS. The headings contained in this Agreement are for
convenience of reference only and are not to be given any legal effect and
shall not affect the meaning or interpretation of this Agreement.
7.12 GOVERNING LAW; INTERPRETATION. THIS AGREEMENT SHALL BE CONSTRUED
IN ACCORDANCE WITH AND GOVERNED FOR ALL PURPOSES BY THE LAWS OF THE STATE
OF NEW YORK.
7.13 SEVERABILITY. The parties stipulate that the terms and
provisions of this Agreement are fair and reasonable as of the date of this
Agreement. However, if any provision of this Agreement shall be determined
by a court of competent jurisdiction to be invalid, void or unenforceable,
the remainder of the terms, provisions, covenants and restrictions of this
Agreement shall remain in full force and effect and shall in no way be
affected, impaired or invalidated. If, moreover, any of those provisions
shall for any reason be determined by a court of competent jurisdiction to
be unenforceable because excessively broad or vague as to duration,
geographical scope, activity or subject, it shall be construed by limiting,
reducing or defining it, so as to be enforceable.
[Signature Page Follows.]
13
IN WITNESS WHEREOF, the Parties have caused this Agreement to be duly
executed and delivered as of the date first above written.
UNIFAB INTERNATIONAL, INC.
By: /s/ Dailey J. Berard
----------------------------
Name: Dailey J. Berard
Title: Chief Executive Officer
PURCHASER:
_________________________________
[Name of Purchaser]
By:______________________________
Name:____________________________
Title:_____________________________
Shares of Common Stock Subscribed by Purchaser:_______________
14
IN WITNESS WHEREOF, the Parties have caused this Agreement to be duly
executed and delivered as of the date first above written.
UNIFAB INTERNATIONAL, INC.
By:
----------------------------
Name: Dailey J. Berard
Title: Chief Executive Officer
PURCHASER:
Ohio Carpenters' Pension Plan
- ---------------------------------
[Name of Purchaser]
By: Wellington Management Company, LLP,
As Its Investment Advisor
By: /s/ Peter L. Curry
Name: Peter L. Curry
Title: Vice President
Shares of Common Stock Subscribed by Purchaser: 40,000
---------------
14
IN WITNESS WHEREOF, the Parties have caused this Agreement to be duly
executed and delivered as of the date first above written.
UNIFAB INTERNATIONAL, INC.
By:
----------------------------
Name: Dailey J. Berard
Title: Chief Executive Officer
PURCHASER:
New York State Nurses Association Pension Plan
- -----------------------------------------------
[Name of Purchaser]
By: Wellington Management Company, LLP,
As Its Investment Advisor
By: /s/ Peter L. Curry
Name: Peter L. Curry
Title: Vice President
Shares of Common Stock Subscribed by Purchaser: 50,000
---------------
14
IN WITNESS WHEREOF, the Parties have caused this Agreement to be duly
executed and delivered as of the date first above written.
UNIFAB INTERNATIONAL, INC.
By:
----------------------------
Name: Dailey J. Berard
Title: Chief Executive Officer
PURCHASER:
Laborers' District Council and Contractors' of Ohio
- ----------------------------------------------------
[Name of Purchaser]
By: Wellington Management Company, LLP,
As Its Investment Advisor
By: /s/ Peter L. Curry
Name: Peter L. Curry
Title: Vice President
Shares of Common Stock Subscribed by Purchaser: 30,000
---------------
14
IN WITNESS WHEREOF, the Parties have caused this Agreement to be duly
executed and delivered as of the date first above written.
UNIFAB INTERNATIONAL, INC.
By:
----------------------------
Name: Dailey J. Berard
Title: Chief Executive Officer
PURCHASER:
Oregon Investment Council
- ------------------------------------------
[Name of Purchaser]
By: Wellington Management Company, LLP,
As Its Investment Advisor
By: /s/ Peter L. Curry
Name: Peter L. Curry
Title: Vice President
Shares of Common Stock Subscribed by Purchaser: 168,000
---------------
14
APPENDIX A
DEFINITIONS
-----------
1. DEFINED TERMS. As used herein the following terms shall have the
following meanings:
"AGREEMENT" means this Stock Purchase Agreement.
"BUSINESS DAY" means any day that is not a Saturday or Sunday or
a day on which banks are required or permitted to be closed in the State of
New York.
"COMMON STOCK" means the common stock, $.01 par value per share,
of the Company, as constituted on the date hereof, and any capital stock
into which such Common Stock may thereafter be changed, and shall also
include (i) capital stock of the Company of any other class (regardless of
how denominated) issued to the holders of shares of Common Stock upon any
reclassification thereof which is also not preferred as to dividends or
assets over any other class of stock of the Company and which is not
subject to redemption and (ii) shares of common stock of any successor or
acquiring corporation received by or distributed to the holders of Common
Stock of the Company.
"THE COMPANY" has the meaning set forth in the Preamble of this
Agreement.
"CONTRACT" means any agreement, indenture, lease, sublease,
license, sublicense, promissory note, evidence of indebtedness, insurance
policy, annuity, mortgage, restriction, commitment, obligation or other
contract, agreement or instrument (whether written or oral).
"CONVERTIBLE SECURITIES" means evidences of indebtedness, shares
of stock or other securities which are convertible into or exchangeable,
with or without payment of additional consideration in cash or property,
for additional shares of Common Stock, either immediately or upon the
occurrence of a specified date or a specified event.
"EXCHANGE ACT" means the Securities Exchange Act of 1934, as
amended, or any successor federal statute, and the rules and regulations
promulgated thereunder, all as the same shall be in effect from time to
time.
"GAAP" means generally accepted accounting principles in effect
in the United States of America from time to time.
"GOVERNMENTAL AUTHORITY" means any nation or government, any
state or other political subdivision thereof, and any entity or official
exercising executive, legislative, judicial, regulatory or administrative
functions of, or pertaining to, government.
"HOLDER" means each Person in whose name the Shares are
registered on the books of the Company maintained for such purpose.
1
"INDEMNIFIED PARTY" has the meaning set forth in Section 6.2 of
this Agreement.
"INDEMNIFYING PARTY" has the meaning set forth in Section 6.2 of
this Agreement.
"LIEN" means any mortgage, pledge, security interest, assessment,
encumbrance, lien, lease, sublease, adverse claim, levy, or charge of any
kind, or any conditional Contract, title retention Contract or other
contract to give or refrain from giving any of the foregoing.
"LOSSES" has the meaning set forth in Section 6.1 of this
Agreement.
"MATERIAL ADVERSE CHANGE" or "MATERIAL ADVERSE EFFECT" means,
with respect to any Person, any change or effect that is or is reasonably
likely to be materially adverse to the financial condition, business,
results of operations or prospects of such Person.
"PERSON(S)" means any individual, sole proprietorship,
partnership, joint venture, trust, limited liability company, incorporated
organization, association, corporation, institution, public benefit
corporation, entity or government (whether federal, state, county, city,
municipal or otherwise, including, without limitation, any instrumentality,
division, agency, body or department thereof).
"PURCHASE PRICE" has the meaning set forth in Section 1.1 of this
agreement.
"PURCHASERS" has the meaning set forth in the Preamble of this
Agreement.
"REQUIREMENT OF LAW" means as to any Person, the articles of
incorporation, bylaws or other organizational or governing documents of
such Person, and any domestic or foreign and federal, state or local law,
rule, regulation, statute or ordinance or determination of any arbitrator
or a court or other Governmental Authority, in each case applicable to or
binding upon such Person or any of its properties or to which such Person
or any of its property is subject.
"RESTRICTED COMMON STOCK" has the meaning set forth in Section
2.1 of this Agreement.
"SEC" means the Securities and Exchange Commission.
"SEC REPORTS" has the meaning set forth in Section 3.7 of this
Agreement.
"SECURITIES ACT" means the Securities Act of 1933, as amended, or
any successor federal statute, and the rules and regulations promulgated
thereunder, all as the same shall be in effect at the applicable time.
"SETTLEMENT" has the meaning set forth in Section 1.2 of this
Agreement.
2
"SETTLEMENT DATE" has the meaning set forth in Section 1.2 of
this Agreement.
"SHARES" has the meaning set forth in Section 1.1 of this
Agreement.
"SUBSIDIARY" means each of those Persons of which another Person,
directly or indirectly, owns beneficially or of record securities having
more than 50% of the voting power in the election of directors (or persons
fulfilling similar functions or duties) of the owned Person (without giving
effect to any contingent voting rights).
2. OTHER DEFINITIONAL PROVISIONS.
(a) All references to "dollars" or "$" refer to currency of the
United States of America.
(b) Terms defined in the singular shall have a comparable
meaning when used in the plural, and vice versa.
(c) All matters of an accounting nature in connection with this
Agreement and the transactions contemplated hereby shall be determined in
accordance with GAAP.
(d) As used herein, the neuter gender shall also denote the
masculine and feminine, and the masculine gender shall also denote the
neuter and feminine, where the context so permits.
(e) The words "hereof," "herein" and "hereunder," and words of
similar import, when used in this Agreement shall refer to this Agreement
as a whole (including any exhibits or schedules hereto) and not to any
particular provision of this Agreement.
3
SCHEDULE A
PURCHASERS
----------
NAME OF PURCHASER NUMBER OF SHARES OF COMMON STOCK
----------------- --------------------------------
Wellington Management Company, LLP 288,000
SCHEDULE 1.2(C)
---------------
FORM OF LEGAL OPINION FOR COMPANY'S COUNSEL
-------------------------------------------
Counsel for the Company shall opine to the following, subject to reasonable
assumptions and qualifications:
1. The Company is a corporation duly incorporated, validly existing and
in good standing under the laws of Louisiana. The Company has the
corporate power and authority to own its properties and conduct its
business.
2. The Company has the corporate power and authority to execute and
deliver the Purchase Agreement and the Registration Rights Agreement, to
perform its obligations thereunder and to consummate the transactions
contemplated thereby.
3. Each of the Purchase Agreement and the Registration Rights Agreement
has been duly authorized, executed and delivered by the Company, and
constitutes a legal, valid and binding obligation of the Company,
enforceable against the Company in accordance with their respective terms,
subject to applicable bankruptcy, insolvency, reorganization, moratorium or
similar laws affecting the enforcement of creditors' rights generally and
general equitable principles regardless of whether such enforceability is
considered in a proceeding at law or in equity.
4. The Company has an authorized capitalization as set forth in the
Purchase Agreement, and the Shares have been duly and validly authorized
and issued and are fully paid and non-assessable.
5. No consent, approval, authorization, order, registration or
qualification of or with any court or governmental agency or governmental
body is required for the issue and sale of the Shares or the consummation
by the Company of the transactions contemplated by the Purchase Agreement
and the Registration Rights Agreement.
6. Based solely on a certificate of an officer of the Company, and
without any independent review by the undersigned of any litigation to
which the Company may be a party, to the undersigned's knowledge, except as
disclosed in the SEC Reports, there are no material legal or governmental
proceedings pending to which the Company or any of its Subsidiaries is a
party or of which any property of the Company or any of its Subsidiaries is
the subject; and to the undersigned's knowledge, no such proceedings are
threatened by governmental authorities or by others.
7. The issue and sale of the Shares, the Placement Warrant and the Common
Stock issuable upon exercise thereof, and Company's execution and delivery
of, and its performance and compliance with all of the provisions of, the
Purchase Agreement, the Registration Rights Agreement and the Placement
Warrant, do not conflict with or result in a breach or violation
of any of the terms or provisions of, or constitute a default
under any indenture, mortgage, deed of trust, loan agreement or
other agreement or instrument filed by the Company with the SEC or
otherwise known to the undersigned to which the Company is a party or by
which the Company is bound or to which any of the property or assets of the
Company is subject, except to the extent that such conflict, breach,
violation or default would not have a Material Adverse Effect on the
Company, nor will such action result in any violation of the provisions of
the Certificate of Incorporation or By-laws of the Company or any statute
or any order, rule or regulation known to the undersigned of any court or
governmental agency or governmental body having jurisdiction over the
Company or any of its properties except to the extent that such violation
would not have a Material Adverse Effect on the Company.
8. Based in part upon the representations of the Purchasers in the
Purchase Agreement, the offer and sale of the Restricted Common Stock to
the Purchasers pursuant to the terms of the Purchase Agreement are exempt
from the registration requirements of Section 5 of the Securities Act.