Exhibit 10.1
EXECUTION COPY
STOCKHOLDERS' AGREEMENT
STOCKHOLDERS' AGREEMENT, dated as of March 16, 2005, among SEACOR
HOLDINGS INC., a Delaware corporation ("Parent"), SBLK ACQUISITION CORP., a
Delaware corporation and a wholly owned subsidiary of Parent ("Merger Sub"),
CORBULK LLC, a Delaware limited liability company and wholly owned subsidiary of
Parent ("LLC") and the stockholders named on Exhibit A hereto (each a
"Stockholder").
WHEREAS, simultaneously herewith, Parent, Merger Sub and LLC are
entering into an Agreement and Plan of Merger, dated as of the date hereof (as
amended from time to time, the "Merger Agreement"), with Seabulk International,
Inc., a Delaware corporation (the "Company"), which contemplates, among other
things, that (i) Merger Sub will merge with and into the Company pursuant to the
terms of the Merger Agreement (the "Reverse Merger") and (ii) if required
pursuant to the terms of the Merger Agreement, immediately after the Reverse
Merger Effective Time and pursuant to the terms and conditions of the Merger
Agreement, the surviving corporation of the Reverse Merger will merge with and
into LLC; capitalized terms used but not defined herein shall have the meanings
set forth in the Merger Agreement, whether or not the Merger Agreement shall be
in effect from time to time;
WHEREAS, as of the date hereof, each Stockholder owns (either
beneficially or of record) the number of shares of common stock, par value $.01
per share, of the Company ("Company Common Stock") set forth opposite such
Stockholder's name on Exhibit A hereto, which represent, in the aggregate,
approximately 75% of the issued and outstanding shares of Company Common Stock
as of the date hereof (the "Existing Shares"; all such Existing Shares and any
additional shares of Company Common Stock hereafter acquired by any Stockholder
prior to the termination of this Agreement being referred to herein as the
"Shares");
WHEREAS, obtaining Company Stockholder Approval is a condition to the
consummation of the transactions contemplated by the Merger Agreement; and
WHEREAS, as a condition to the willingness of Parent, Merger Sub and
LLC to enter into the Merger Agreement, Parent, Merger Sub and LLC have
requested that each Stockholder agree, and in order to induce Parent, Merger Sub
and LLC to enter into the Merger Agreement, each Stockholder has agreed,
severally and not jointly, to enter into this Agreement;
NOW, THEREFORE, in consideration of the foregoing and the mutual
covenants and agreements contained herein, and intending to be legally bound
hereby, the parties hereto agree as follows:
ARTICLE I
REPRESENTATIONS AND WARRANTIES
SECTION 1.1 Representations and Warranties of the Stockholder. Each
Stockholder severally and not jointly represents and warrants to Parent solely
with respect to such Stockholder as follows:
(a) Such Stockholder has the requisite power, authority and legal
capacity to enter into and deliver this Agreement and to carry out its
obligations hereunder. This Agreement has been duly executed and delivered by
such Stockholder and, assuming its due authorization, execution and delivery by
Parent, Merger Sub and LLC, is a legal, valid and binding obligation of such
Stockholder, enforceable against such Stockholder in accordance with its terms
except to the extent such enforceability is limited by the Bankruptcy and Equity
Exception.
(b) The execution and delivery of this Agreement by such Stockholder
does not, and the performance of this Agreement by such Stockholder will not,
(i) conflict with or violate any Laws or (ii) conflict with or violate any
contract or other instrument to which the Stockholder is a party or by which
such Stockholder is bound, including, without limitation, any voting agreement,
stockholders agreement or voting trust, except for any Liens created hereby or
to the extent waived on or prior to the date hereof.
(c) The execution and delivery of this Agreement by such Stockholder
does not, and the performance of this Agreement by such Stockholder will not,
require such Stockholder to obtain any consent, approval, authorization or
permit of, or to make any filing with or notification to, any person or
Governmental Authority except to the extent waived on or prior to the date
hereof.
(d) There is no suit, action, investigation or proceeding pending or,
to the knowledge of such Stockholder, threatened against such Stockholder at law
or in equity before or by any Governmental Authority that could reasonably be
expected to impair the ability of such Stockholder to perform its obligations
hereunder, and there is no judgment, decree, injunction, rule, order or writ of
any Governmental Authority to which such Stockholder is or its assets are
subject that could reasonably be expected to impair the ability of such
Stockholder to perform its obligations hereunder.
(e) Such Stockholder (other than C/R Marine Non-U.S. Partnership,
L.P.) is, and at all times has been, a citizen of the United States within the
meaning of Section 2 of the Shipping Act, 1916, as amended, for the purposes of
owning and operating vessels in the U.S. coastwise trade. None of the
Stockholders is a "foreign person" within the meaning of Section 1445 of the
Code.
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(f) Each Stockholder owns beneficially and of record the Existing
Shares set forth opposite such Stockholder's name on Exhibit A hereto, which
constitute all of the shares of Company Common Stock owned beneficially and of
record by such Stockholder. Such Stockholder has sole voting power, sole power
of disposition and all other stockholder rights with respect to all of its
Existing Shares, with no restrictions, other than restrictions on voting or
disposition pursuant to applicable securities laws or set forth in the Company
Stockholders' Agreement, on such Stockholder's rights of voting or disposition
pertaining thereto. Such Stockholder has good and valid title to all Existing
Shares, free and clear of all Liens (other than any Liens created hereby).
ARTICLE II
NO SOLICITATION
SECTION 2.1 General. Except to the extent the Company is permitted to
do so by the Merger Agreement, Stockholder will not, and will not permit any of
its Affiliates, attorneys, representatives or agents (collectively, the
"Representatives") to, directly or indirectly, (i) solicit, initiate or
knowingly encourage (including by way of furnishing information) any inquiries
or proposals that constitute, or may reasonably be expected to lead to, any
Takeover Proposal, (ii) participate in any discussions or negotiations with any
third party regarding any Takeover Proposal or (iii) enter into any agreement
related to any Takeover Proposal.
SECTION 2.2 Notification. Stockholder shall, or shall cause the
Company to, promptly advise Parent, orally and in writing, and in no event later
than 24 hours after receipt of, any bona fide Takeover Proposal or if any
non-public information is requested from, or any discussions or negotiations are
sought to be initiated or continued with, the Company in respect of any Takeover
Proposal, and shall, in any such notice to Parent, indicate the identity of such
Person and a description of the material terms and conditions of any Takeover
Proposals (and shall include with such notice copies of any written materials
received from or on behalf of such Person relating to such proposal), and
thereafter shall promptly keep Parent fully informed of all material
developments affecting the status and terms of any such proposals (and shall
provide Parent with copies of any additional written materials received that
relate to such proposals).
SECTION 2.3 Ongoing Discussions. Stockholder shall (and shall cause
its Representatives to) immediately cease and cause to be terminated any
discussions or negotiations with any Persons being conducted with respect to a
Takeover Proposal on the date hereof.
ARTICLE III
AGREEMENT TO VOTE; RESTRICTIONS ON VOTING AND DISPOSITIONS; IRREVOCABLE PROXY
SECTION 3.1 Agreement to Vote. So long as this Agreement has not been
terminated in accordance with its terms, each Stockholder hereby agrees to vote
all of such Stockholder's Existing Shares or execute a written consent in
respect thereof, (i) for approval and adoption of the Merger Agreement (as
amended from time to time) and the transactions contemplated by the Merger
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Agreement, as applicable, at any meeting or meetings of the stockholders of the
Company at which the Merger Agreement or the transactions contemplated
thereunder are submitted for the vote of such Stockholder or in any written
consent in respect thereof, (ii) against any Takeover Proposal, without regard
to any Board recommendation to stockholders concerning such Takeover Proposal,
and without regard to the terms of such Takeover Proposal, (iii) against any
agreement, amendment of any agreement (including the Company's Certificate of
Incorporation or By-Laws), or any other action that is intended or could
reasonably be expected to prevent, impede, interfere with, delay, postpone, or
discourage the transactions contemplated by the Merger Agreement, other than
those specifically contemplated by this Agreement or the Merger Agreement, or
(iv) against any action, agreement, transaction or proposal that would result in
a breach of any representation, warranty, covenant, agreement or other
obligation of the Company in the Merger Agreement. Any such vote shall be cast
(or consent shall be given) by Stockholder in accordance with the procedures
relating thereto so as to ensure that it is duly counted, including for purposes
of determining that a quorum is present and for the purposes of recording such
vote (or consent).
SECTION 3.2 Restrictions on Dispositions. Except as permitted or
required by the Merger Agreement, each Stockholder hereby agrees that, without
the prior written consent of Parent, such Stockholder shall not, directly or
indirectly, sell, offer to sell, give, pledge, encumber, assign, grant any
option for the sale of or otherwise transfer or dispose of, or enter into any
agreement, arrangement or understanding to sell, any Shares (collectively,
"Transfer") other than to its Affiliates, provided that as a condition to such
Transfer, such Affiliate shall execute an agreement that is identical to this
Agreement (except to reflect the change of the Stockholder) at which time, such
Stockholder's obligations hereunder shall terminated with respect to such
Transferred Shares; provided, further, that C/R Marine Coinvestment II, L.P. may
Transfer any or all of its Shares to its limited partners, in which event, such
limited partners shall not be required to execute an agreement that is identical
to this Agreement.
SECTION 3.3 Irrevocable Proxy. Subject to the last two sentences of
this Section 3.3, so long as this Agreement has not been terminated in
accordance with its terms, each Stockholder hereby irrevocably appoints Parent
or its designee as such Stockholder's agent, attorney and proxy, to vote (or
cause to be voted) the Existing Shares owned by such Stockholder in favor of
approval of the Merger Agreement and the transactions contemplated by the Merger
Agreement. This proxy is irrevocable (so long as this Agreement has not been
terminated in accordance with its terms) and coupled with an interest and is
granted in consideration of the Company, Parent, Merger Sub and LLC entering
into the Merger Agreement. Notwithstanding the foregoing, in the event that this
Agreement is terminated in accordance with its terms, such proxy shall be deemed
revoked and shall terminate without any further action by the parties hereto. In
the event that a Stockholder fails for any reason to vote its Existing Shares in
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accordance with the requirements of Section 3.1 hereof, then the proxyholder
shall have the right to vote such Existing Shares in accordance with the
provisions of the first sentence of this Section 3.3. Unless this Agreement has
been terminated in accordance with its terms, the vote of the proxyholder shall
control in any conflict between the vote by the proxyholder of a Stockholder's
Existing Shares and a vote by such Stockholder of its Existing Shares.
SECTION 3.4 Inconsistent Agreements. Each Stockholder hereby agrees
that it shall not enter into any agreement, contract or understanding with any
Person prior to the termination of the Merger Agreement directly or indirectly
to vote, grant a proxy or power of attorney or give instructions with respect to
the voting of its Shares in any manner which is inconsistent with this
Agreement.
ARTICLE IV
MISCELLANEOUS
SECTION 4.1 Obligations Several, Not Joint. All obligations,
representations and warranties of the Stockholders hereunder shall be several
and not joint and in no event shall any Stockholder have any liability for any
breach of this Agreement by any other Stockholder.
SECTION 4.2 Termination. In the event that the Merger Agreement is
terminated in accordance with its terms, this Agreement shall terminate without
any further action by the parties hereto. This Agreement shall be deemed
satisfied in full and terminated upon the consummation of the Reverse Merger or,
if applicable, the Mergers.
SECTION 4.3 Non-Survival. The representations and warranties made
herein shall not survive the termination of this Agreement.
SECTION 4.4 No Limitations on Actions. Each Stockholder signs this
Agreement solely in its capacity as the record and/or beneficial owner, as
applicable, of such Stockholder's Existing Shares; this Agreement shall not
limit or otherwise affect the actions of the Stockholder or any Affiliate,
employee or designee of the Stockholder or any of its Affiliates in any other
capacity, including such person's capacity, if any, as a member of the Board of
Directors of the Company; and nothing herein shall limit or affect the Company's
rights in connection with the Merger Agreement.
SECTION 4.5 Severability. If any term or other provision of this
Agreement is or is deemed to be invalid, illegal or incapable of being enforced
by any applicable rule of law or public policy, all other conditions and
provisions of this Agreement shall nevertheless remain in full force and effect
so long as the economic or legal substance of this Agreement is not affected in
any manner materially adverse to any party. Upon such determination that any
term or other provision is invalid, illegal or incapable of being enforced, the
parties hereto shall negotiate in good faith to modify this Agreement so as to
effect the original intent of the parties as closely as possible in a mutually
acceptable manner so that the terms of this Agreement remain as originally
contemplated to the fullest extent possible.
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SECTION 4.6 Entire Agreement. This Agreement constitutes the entire
understanding between Parent, Merger Sub, LLC and each Stockholder with respect
to the subject matter hereof and thereof and supersedes all prior agreements and
understandings, both written and oral, between Parent, Merger Sub, LLC and each
Stockholder with respect to the subject matter hereof and thereof.
SECTION 4.7 Counterparts. This Agreement may be executed and
delivered (including by facsimile transmission) in one or more counterparts, and
by the different parties hereto in separate counterparts, each of which when
executed and delivered shall be deemed to be an original but all of which taken
together shall constitute one and the same instrument.
SECTION 4.8 Mutual Drafting. Each party hereto has participated in
the drafting of this Agreement, which each party acknowledges is the result of
extensive negotiations between the parties.
SECTION 4.9 Assignment. This Agreement shall not be assigned by
operation of law or otherwise without the prior written consent of the other
parties hereto, provided that Parent may assign its rights hereunder to any
direct or indirect wholly owned subsidiary of Parent.
SECTION 4.10 Amendments. This Agreement may not be amended,
supplemented, waived or otherwise modified or terminated, except upon the
execution and delivery of a written agreement executed by the parties hereto.
SECTION 4.11 Notices. All notices, requests, claims, demands and
other communications hereunder shall be in writing and shall be given (and shall
be deemed to have been duly received if so given) by delivery in person,
facsimile transmission, registered or certified mail (postage prepaid, return
receipt requested), or courier service providing proof of delivery to the
respective parties at the following addresses (or to such other address for a
party as shall be specified in a notice given in accordance with this Section
4.9).
If to Parent, Merger Sub or LLC:
460 Park Avenue
12th Floor
New York, NY 10022
Attention: President
Facsimile: 212-582-8522
with copies to:
Weil, Gotshal & Manges LLP
767 Fifth Avenue
New York, New York 10153
Telecopy No.: (212) 310-8007
Attention: David E. Zeltner
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If to the Stockholders:
Nautilus Acquisition, L.P.
c/o CSFB Alternative Capital Division
11 Madison Avenue
16th Floor
New York, NY 10010
Telecopy No.: (917) 326-8076
Attention: Benjamin Silbert
C/R Marine Non-U.S. Partnership, L.P.
C/R Marine Domestic Partnership, L.P.
C/R Marine Coinvestment, L.P.
C/R Marine Coinvestment II, L.P.
c/o Riverstone Holdings, LLC
712 Fifth Avenue, 19th Floor
New York, New York 10019
Telecopy No.: (212) 993-0077
with a copy to:
Latham and Watkins
55 Eleventh Street, NW
Suite 1000
Washington, D.C. 20004-1304
Telecopy No.: (202) 637-2112
Attention: David Dantzic
SECTION 4.12 No Third Party Beneficiaries. This Agreement is not
intended to be for the benefit of, and shall not be enforceable by, any person
or entity not a party hereto.
SECTION 4.13 Specific Performance. Each of the parties hereto
acknowledges that a breach by it of any agreement contained in this Agreement
will cause the other party to sustain damage for which it would not have an
adequate remedy at law for money damages, and therefore each of the parties
hereto agrees that in the event of any such breach the aggrieved party shall be
entitled to the remedy of specific performance of such agreement and injunctive
and other equitable relief in addition to any other remedy to which it may be
entitled, at law or in equity.
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SECTION 4.14 Remedies Cumulative. All rights, powers and remedies
provided under this Agreement or otherwise available in respect hereof at law or
in equity shall be cumulative and not alternative, and the exercise of any
thereof by any party shall not preclude the simultaneous or later exercise of
any other right, power or remedy by such party.
SECTION 4.15 No Waiver. The failure of any party hereto to exercise
any right, power or remedy provided under this Agreement or otherwise available
in respect hereof at law or in equity, or to insist upon strict compliance by
any other party hereto with its obligations hereunder, and any custom or
practice of the parties at variance with the terms hereof, shall not constitute
a waiver by such party of its rights to exercise any such or other right, power
or remedy or to demand such compliance.
SECTION 4.16 Governing Law.
(a) This Agreement shall be governed by, and construed in accordance
with, the laws of the State of Delaware, without giving effect to the principles
of conflicts of law.
(b) Each party hereby irrevocably submits to the exclusive
jurisdiction of the Court of Chancery in the State of Delaware in any action,
suit or proceeding arising in connection with this Agreement, and agrees that
any such action, suit or proceeding shall be brought only in such court (and
waives any objection based on forum non conveniens or any other objection to
venue therein); provided, however, that such consent to jurisdiction is solely
for the purpose referred to in this subsection (b) and shall not be deemed to be
a general submission to the jurisdiction of such court or in the State of
Delaware other than for such purposes.
SECTION 4.17 Waiver of Jury Trial. EACH OF PARENT, MERGER SUB AND THE
STOCKHOLDERS HEREBY IRREVOCABLY WAIVE ALL RIGHT TO TRIAL BY JURY IN ANY ACTION,
PROCEEDING OR COUNTERCLAIM (WHETHER BASED ON CONTRACT, TORT OR OTHERWISE)
ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE ACTIONS OF PARENT, MERGER
SUB OR THE STOCKHOLDERS IN THE NEGOTIATION, ADMINISTRATION, PERFORMANCE AND
ENFORCEMENT THEREOF.
SECTION 4.18 Headings. The descriptive headings contained in this
Agreement are included for convenience of reference only and shall not affect in
any way the meaning or interpretation of this Agreement.
[Signatures on Following Page.]
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IN WITNESS WHEREOF, Parent, Merger Sub, LLC and each Stockholder have
caused this Agreement to be duly executed as of the date first above written.
SEACOR HOLDINGS INC.
By: /s/ Randall Blank
--------------------------------------------
Name: Randall Blank
Title Executive Vice President
SBLK ACQUISITION CORP.
By: /s/ Randall Blank
--------------------------------------------
Name: Randall Blank
Title Vice President
CORBULK LLC
By: Seacor Holdings Inc.,
its sole member
By: /s/ Randall Blank
-----------------------------------
Name: Randall Blank
Title: Executive Vice President
SIGNATURE PAGE TO STOCKHOLDERS' AGREEMENT
NAUTILUS ACQUISITION, L.P.
By: Nautilus Intermediary, L.P.
its General Partner
By: Nautilus AIV, L.P.
its General Partner
By: Nautilus GP, LLC
its managing general partner
By: Turnham-Nautilus Holdings, LLC
Class A Member and Authorized Signatory
By: /s/ Robert C. Turnham, Jr.
-----------------------------------------
Name: Robert C. Turnham, Jr.
Title: Member and Authorized Signatory
C/R MARINE NON-U.S. PARTNERSHIP, L.P.
By: C/R Marine GP Corp.,
its general partner
By: /s/ David M. Leuschen
----------------------------------------
Name: David M. Leuschen
Title: Vice President
C/R MARINE DOMESTIC PARTNERSHIP, L.P.
By: C/R Marine GP Corp.,
its general partner
By: /s/ David M. Leuschen
----------------------------------------
Name: David M. Leuschen
Title: Vice President
SIGNATURE PAGE TO STOCKHOLDERS' AGREEMENT
C/R MARINE COINVESTMENT, L.P.
By: C/R Marine GP Corp.,
its general partner
By: /s/ David M. Leuschen
------------------------------
Name: David M. Leuschen
Title: Vice President
C/R MARINE COINVESTMENT II, L.P.
By: C/R Marine GP Corp.,
its general partner
By: /s/ David M. Leuschen
------------------------------
Name: David M. Leuschen
Title: Vice President
SIGNATURE PAGE TO STOCKHOLDERS' AGREEMENT