JOINT VENTURE AGREEMENT
BETWEEN
SMIT-LLOYD (ANTILLEN) N.V.
AND
SEACOR HOLDINGS INC.
This Agreement is made this 19th of December 1996.
By and Between:
A) Seacor Holdings Inc., a company duly organised and existing under
of the laws of the State of Delaware (hereinafter "Seacor-Smit")
AND
B) Smit-Lloyd (Antillen) N.V., a company duly organised under and by
virtue of the laws of the Netherlands Antilles (hereinafter
referred to as "Smit").
WHEREAS:
1. Various associate companies of each of Seacor-Smit and Smit have
entered into a purchase agreement of even date herewith, relating
to the purchase by affiliates of each of Seacor-Smit from various
affiliates of Smit certain anchorhandling/tug/supply vessels
supporting offshore oil and gas activities worldwide.
2. The parties are contributing the vessels listed on Schedule A
hereto, to the Bahamian company to be owned equally by Smit and
Seacor-Smit. It is intended that, depending on the area of
operation of each vessel to be owned by such company, Smit
Vlootbeheer B.V., Smit International Singapore Pte. Ltd. or Smit
(Americas) Inc., affiliates of Smit, or FISH or Seacor Marine
Inc., affiliates of Seacor-Smit will provide technical and
operating management services for the vessels in the company when
not under bareboat charter to a Smit affiliate.
3. The parties intend to cooperate to develop a profitable business
from the operation of the anchorhandling/tug/ supply vessels,
platform supply vessels and fire-fighting vessels for oil and gas
operators engaged in offshore exploration and production
activities.
NOW IT IS HEREBY AGREED as follows:
CLAUSE 1: PREAMBLE
-------------------
1.1 The above recitals and the attached Schedules and Appendices
hereto form an integral part of this Agreement.
CLAUSE 2: DEFINITIONS
----------------------
2.1 In this Agreement unless the context otherwise requires the
following words and expressions shall have the following
meanings:
(a) the "Parties" shall mean the parties hereto;
(b) "Party" shall mean either of the parties hereto;
(c) the "Company" shall mean the jointly owned company
to be established in the Bahamas as provided for by Clause 3
hereof;
(d) the "Vessel" shall mean each and the "Vessels" shall mean
those vessels listed on Schedule A hereto;
(e) "Affiliate" means in relation to a Party:
(i) the ultimate holding company of such Party;
or (ii) any company controlled by such ultimate holding
company;
and in this definition one company controls another when at
the relevant time it owns either directly or indirectly more
than 50% of the shares entitled to vote at general meetings
and of that other company or a company is an ultimate
holding company but itself is not controlled by another
company.
(f) the "Directors" shall mean the Directors of the Company.
(g) the "Board" shall mean the Board of Directors of the
Company.
2.2 Words importing gender include every gender, the singular
includes the plural and vice versa, and references to persons
shall include bodies corporate, unincorporated associates and
partnerships and vice versa.
2.3 References to statutes or statutory instruments include
references to any amendments, modifications or re-enactments
thereof.
2.4 The Clause headings are included for the convenience of reference
only and do not constitute terms or affect the interpretation of
this Agreement.
2.5 References to Clauses and Exhibits are to Clauses in Exhibits to
this Agreement.
CLAUSE 3: THE JOINT COMPANIES
------------------------------
3.1 The parties have caused an International Business Company in the
Bahamas named Seacor-Smit (Aquitaine) Ltd.
(hereinafter called "the Company").
3.2 The Company shall have an initial issued and fully paid share
capital of US$ 1000,- (ONE THOUSAND UNITED STATES DOLLARS)
divided into 1,000 ordinary shares of USD 1,00 each and shall be
increased to any amount that may be necessary having regard to
financing, if any, available to the Company in respect of the
purchase of the Vessels, but any decision to increase the shares
of the Company shall always be made on the basis that the
allocation of shares shall give both Smit and Seacor-Smit an
equal interest in the Company.
The participation of the Parties in the Company's share capital
shall be:
SEACOR - SMIT : 500 SHARES (50%)
SMIT : 500 SHARES (50%)
Each Party hereto shall procure the Company to effect the prompt
allotment of the initial shares and upon allotment shall promptly
deposit the amount to be paid up for the shares allotted and the
Company shall issue the respective share certificates after the
full payment has been made.
3.3 Each Party hereto warrants that it will exercise its votes as
shareholder and procure that its nominee directors act strictly
in accordance with this Agreement, the Memorandum and The
Articles of Association of the Company and shall do all things
necessary to procure compliance by the Company with the terms of
this Agreement, the Memorandum of and Articles of Association.
The draft Memorandum of Association (statutes) and Articles of
Association of the Company are attached hereto as "EXHIBIT 1" and
"EXHIBIT 2".
3.4 Whenever a need to increase the authorised and issued capital of
the Company arises, each shareholder shall contribute additional
capital from its own resources in proportion to their respective
shareholdings and shall procure that the Company increases its
authorised capital and issues and allots the necessary shares.
3.5 Should either of the Parties fail to pay its proportion of any
sum or sums deemed necessary to provide capital in accordance
with this Clause within a period of twenty-one (21) days of
having received written notice to do so from the Secretary upon
authority from the Board of the Company the Party or Parties in
default shall be liable to pay interest to the other Party or
Parties be on the amount of its proportion remaining unpaid.
The rate of interest shall be at 2% (two per percent) per annum
above the prime interest rate quoted by the bank of the Company
on a daily basis from the day following the end of the period of
notice until any adjustment of the participation percentages of
the Shareholders is made as provided hereunder. The payment of
interest shall be without prejudice to any rights under this
Agreement of the Shareholder(s) not in default.
3.6 Should the Party or Parties in default not have made payment of
its proportion of capital within a further period of sixty (60)
days then the other Party shall be entitled to require that the
respective participation percentages of the Shareholders shall be
adjusted pro-rata to the sum or sums respectively contributed by
each of the Shareholders, provided always that the proportionate
liability of the Party in default as the case may be for losses,
costs, expenses and financial obligations and all liabilities
assumed by it under this Agreement shall remain at the percentage
set out in Article 3.2 hereof.
After such adjustment the Party in default shall not be entitled
to pay any further sum in respect of the out-standing capital
except to the extent previously approved in writing by the other
Party in accordance with this Agreement.
3.7 Where any adjustment of the participation percentages of the
Parties has been made hereunder and the Party not in default
grants approval to the payment by the defaulting Party of any
further sum or sums in respect of the capital of the Company then
such further sum or sums shall be treated as a
reduction of that Party's pro-rata readjustment of the Parties'
participation percentages and shall be made in the same manner as
provided for above.
3.8 The Parties hereto agree that no share of the Company shall be
permitted to be mortgaged, pledged or used as any kind of
security.
CLAUSE 4: THE ACQUISITION OF VESSELS
-------------------------------------
4.1 The Company shall purchase from each of the companies listed in
Schedule A, the vessel listed opposite its name for the
respective purchase prices also listed on Schedule A. Each
Vessel shall be purchased at its present location, in class and
free of recommendations, free of encumbrances, maritime liens and
any other debts whatsoever and shall be registered by the Company
under the flag of the Commonwealth of the Bahamas. The terms and
conditions of the purchase of each vessel shall be the same as
those provided for in that certain Definitive Purchase Agreement,
dated of even date herewith, among the Seacor-Smit and Smit
affiliated companies named therein.
4.2 The share capital of the Company shall be allocated to finance
the purchase of the Vessels.
The initial share capital contributions shall be paid in United
States Dollars to the bank account of the Company with D, M & W
Bank in Nassau, Bahamas.
4.3 The Company shall enter into ship management contracts with Smit
International Singapore Pte. Ltd for operation of vessels in the
Far East (per vessel management fee USD 78,000), Smit Vlootbeheer
B.V. for operation of vessels in Europe (per vessel management
fee Dfl. 152,520), FISH for operation of vessels in West Africa
(per vessel management fee USD 89,600), Smit International
(Americas) N.V. or Seacor Marine Inc., as the parties agree, for
operation of vessels in the Americas (per vessel management fee
USD 89,600), an affiliate company of Smit for provision of ship
management services necessary to operate the Vessels, other than
Vessels when bareboat chartered to a Smit affiliate as provided
hereinafter, including but not limited to accounting, manning,
maintenance, repairs, surveys, drydocking, victualling, class
related surveys and otherwise on the terms and conditions of the
form of Ship Management Agreement as attached hereto as "EXHIBIT
3". It is further
agreed that an appropriate affiliate company of Seacor-Smit
(depending on the area in which a vessel or vessels operate) will
provide the marketing services for the Vessels, other than
Vessels when bareboat chartered to a Smit affiliate as provided
hereinafter. The Parties have agreed to a bareboat charter of
the Vessels named Smit Lloyd 111, Smit-Lloyd 117, and the Smit
Curacao by the Company to affiliate companies of Smit (the
"Bareboat Charterers") at a daily rate of USD 1250 per vessel per
day for a term of three year(s) on the further terms and
conditions of the form of bareboat charter attached hereto as
"EXHIBIT 4" and to be executed by the Company and the respective
Bareboat Charterer on the date hereof.
The parties hereto recognize and accept that the objective of
this agreement is to maximize the employment prospects of all of
the Vessels to mutual benefit and to minimize the risk of
creating confusion in the marketplace by either party.
Smit shall at all times co-ordinate and liaise with Seacor-Smit
concerning potential availability of the Vessels bareboat
chartered to Smit or an affiliate of Smit in order to permit
marketing of those Vessels to offshore industry clients.
Seacor-Smit shall at all times keep Smit informed of the
availability and position of the Vessels.
Whenever employment is found for a Vessel, whether by Seacor-Smit
or Smit, a commission will be payable to the party who arranged
the employment, such commission to be 1.25% for employment for
more than 90 days, 2.5% for employment for less than 90 days and
5% for long-haul towage contracts.
4.4 The Parties agree that Hull and Machinery and War Risk Insurance
as well as the entry of each Vessel which is not under bareboat
charter in a protection and indemnity club shall be arranged on
behalf of the Company by an Affiliate of Seacor-Smit.
CLAUSE 5: MANAGEMENT OF THE COMPANY
------------------------------------
5.1 The Parties shall monitor and oversee their interest in the
Company. The meetings of the Parties (hereinafter referred to as
the "Shareholders' Meeting") shall be held regularly on an annual
basis or upon either the request of the Parties or of the Board
of Directors of the Company.
The Annual Shareholders' Meeting shall be held on not less than
twenty-eight (28) days notice and any other Shareholders' Meeting
shall be held on not less than fourteen (14) days notice.
The notice of the Shareholders Meeting shall be issued by the
Chairman of the Shareholders' Meeting as referred to hereinafter
who shall chair such meetings and be responsible for the
preparation of the minutes thereof.
By turn the Parties are entitled to nominate one of their
representatives to be the Chairman of the Shareholders' Meeting
and to change such appointment and such nominee shall be duly
appointed. The Chairman shall resign as chairman after a period
of one (1) calendar year. For the first period Seacor-Smit shall
designate the Chairman of the Shareholders' Meeting of the
Company.
Decisions at the Shareholders' Meetings shall be taken by
unanimous vote.
In the event no unanimity can be reached a new Shareholders'
Meeting shall be convened within forty eight (48) hours. If
again no unanimity can be reached and the subject is not a
subject defined in Clause 5.12 hereof the matter shall be
referred to arbitration in accordance with Clause 21 hereof. If
the subject matter is an issue defined as such in Clause 5.12
hereof a decision can only be taken by unanimous vote of the
Shareholders' Meeting.
5.2 The Board of Directors of the Company shall be comprised of four
(4) Directors two (2) of which shall be appointed by SMIT and two
(2) of which shall be appointed by SMIT- SEACOR.
The first Directors of the Company shall be as follows:
Appointed by SMIT: Antoon Kienhuis
Karel Kaffa
Appointed by SEACOR-SMIT: Charles Fabrikant
Randall Blank
The Chairman of the Board of the Company shall be chosen from
among the Directors nominated by SEACOR-SMIT and the
Deputy Chairman shall be chosen from among the Directors
nominated by SMIT, and vice versa, as the Chairman rotates. The
first Chairman of the Board shall be Antoon Kienhuis. Subject to
Clause 5.13, decisions of the Boards of Directors shall be taken
by a unanimity of votes. In the event no unanimity being
reached, the Chairman shall not have a casting vote, but the
subject matter shall then be referred to a Shareholders' Meeting.
The Company Secretary of the Company shall be nominated by
SEACOR-SMIT and appointed by the Board.
The Board of Directors may appoint an Executive Committee and
provide for the membership, delegation of authority and other
procedural matters with respect thereto by resolutions.
5.3 All Directors and the Company Secretary of the Company shall
serve without remuneration paid by the Company unless otherwise
decided by the parties. All reasonable travel and hotel costs
incurred by the Directors in the performance of their duties as
members of the Board shall be borne by the Company.
5.4 In the event that a Director dies, resigns or is removed from
office, the Party which originally nominated such Director shall
appoint his successor. If at any time a Party disposes of its
ownership interest in the Company the Directors nominated by it
shall be deemed to have resigned on the date of said transfer and
the Party acquiring such interest shall be entitled to nominate
substitute Directors.
5.5 Either party may at any time appoint an alternate Director to act
in place and on behalf of any Directors nominated by it, in
accordance with the following provisions:
(a) An alternate Director shall be entitled to attend and vote
as a Director at any meeting of the Board at which the
Director in respect of whom he is appointed is not
personally present and generally at such meeting perform all
the functions of the Director in respect of whom he is
appointed;
(b) If a Director and his alternate Director are both unable to
attend a meeting of the respective Board, the Director may
for the purpose of such meeting appoint a proxy to represent
him at such meeting and to vote at such meeting on his
behalf.
Every appointment of a proxy shall be in writing, signed by
the Director by whom it is made and shall be sent or
delivered to the Chairman of the respective Board at or
prior to the commencement of such meeting;
(c) A Director or his alternate may receive a proxy or proxies
for another Director or Directors and shall be able to
exercise his own vote as well as any additional votes
pursuant to the proxy or proxies he may hold.
5.6 The Directors shall have the right to adopt resolutions without a
meeting, pursuant to a unanimous resolution of the Directors,
whether on one or more documents, and signed by all the Directors
or by confirmed telexes or confirmed facsimile transmission
received from all the Directors in office.
5.7 The Board of the Company shall meet together at regular intervals
and at least once each year. In addition special meetings of the
Board may be convened at any time upon the request of at least
half of all the Directors sent to the Company's Secretary and for
dispatch of any special business. The meetings of the Board,
including special meetings, shall be presided over by the
Chairman.
5.8 Meetings of the Board of the Company will be held at a mutually
convenient place to be agreed by the Board.
5.9 Except as provided below the quorum of all meetings of the Board
of the Company shall be three (3) Directors, at least one
representing each of the Parties, present in person or by their
alternate Directors or by their proxies.
Where a quorum is not present, the meeting of the Board shall
stand adjourned to a day seven (7) days after the date of the
meeting, and where a quorum is not present at the adjourned
meeting, then the meeting shall stand adjourned to the next
working day and the quorum at the second adjourned meeting shall
be Directors present personally, or by their Alternate Directors
or by their proxies.
5.10 The Board of the Company will cause complete and accurate minutes
in English to be kept of all meetings (including a copy of the
notice of the meeting) and the business transacted.
5.11 Neither SMIT nor SEACOR-SMIT shall cause the Company to enter
into any commitment to incur any indebtedness or
obligations to any person without first obtaining the prior
written approval of the Board.
5.12 All decisions or resolution affecting the matters enumerated
below shall require the affirmative and unanimous vote of all
Directors or their alternatives or proxies. If no such unanimity
can be reached the subject matter shall be referred by the
Directors to the Parties at a Shareholders' Meeting.
(a) Any sale, transfer, purchase, lease, bareboat charter,
mortgage or other acquisition or disposition by the Company
of any assets or properties;
(b) Expanding the business of the Company or entering into other
fields of industry, other than as originally contemplated in
this Agreement and the Definitive Purchase Agreement;
(c) Any borrowings, pledge or guarantee;
(d) Allocation of the net profit and declaration of dividends;
(e) Any merger, dissolution or liquidation whether in whole or
in part of the Company;
(f) Formation or establishment of subsidiaries, branch offices,
joint ventures or partnerships as well as any termination
thereof;
(g) Approval of annual operating plans, operating and capital
expenditure budgets and business plans;
(h) Making of any non-budgeted capital commitment in excess of
USD 5000 or equivalent in local currency;
(i) Entering into any pension schemes and granting pension
rights;
(j) Appointment of a general manager and other executive
officers;
(k) Instigation of any legal proceedings both as plaintiff and
as defendant, excluding the collection of book debts,
instigation of legal measures of a preservatory nature and
such other legal measures as must be instigated without
delay, and representing the Company
in summary proceedings instituted against the Company,
submitting existing disputes for arbitration or for a
binding advice, and entering into compromise whereby pending
lawsuits that are about to be instituted are prevented;
(l) Amendment of either the Memorandum of or Articles of
Association of the Company;
(m) Entering into any contract or charter party or project with
a duration of more than twelve (12) months including
optional periods or entering into any contract to perform
services where the contract price is below the estimated
break-even level, other than the bareboat charters referred
to in Section 4.3 above;
(n) Determining insurance values and the terms and conditions of
insurance cover;
(o) Appointment of external attorneys, auditors, bankers and/or
consultants;
(p) Change in accounting principles adhered to.
5.13 The Board of Directors of the Company shall have the powers and
responsibilities for all the business activities of the Company
as provided in this Agreement and the Memorandum of Association
and subject to the Articles of Association of the Company, shall
also oversee the decisions to be taken by the President and other
officers of the Company.
CLAUSE 6: MANAGEMENT AND STAFF OF THE JOINT VENTURE
----------------------------------------------------
6.1 SEACOR-SMIT shall be responsible for overseeing all
administration and the day to day management of the Company
including management of staff.
6.2 SEACOR-SMIT shall cause monthly, quarterly and annual reports of
the Company's operations together with statements of Profit and
Loss to be submitted to each of the Directors of the Company.
Such reports shall be submitted within forty-five (45) days
following the close of the relevant reporting period and shall be
in such format as may be determined by SEACOR-SMIT in order to
enable its affiliate SEACOR Holdings, Inc. to comply with
reporting requirements imposed by U.S. securities laws. Should
SMIT at any time reasonably request additional information to be
provided,
SEACOR-SMIT will use its best endeavors to comply with such
request. SEACOR-SMIT shall be paid a management fee of USD
125,000 per year for the administrative services provided
hereunder.
CLAUSE 7: FINANCIAL MATTERS
----------------------------
7.1 All books and financial statements shall be kept in local
currency and shall be audited annually by Arthur Andersen & Co.,
LLP or such other firm of international chartered accountants as
shall be agreed by the Board in accordance with Clause 5.12 and
appointed by a Shareholders' Meeting.
7.2 A complete set of books of account or other accounting records
shall be kept by the Company under the control of the Board in
accordance with United States generally accepted accounting
principles. All financial books and records of the Company shall
be kept in the English language.
7.3 The financial year of the Company shall be the calendar year, or
such other period as the Parties may agree from time to time, and
the accounts for the first financial year shall be closed at 31st
December 1996.
7.4 The audited financial statements of each Company shall include a
Profit and Loss Statement and a Balance Sheet and shall be
submitted to each of the Directors not later than ninety (90)
days after the end of each financial year of the Company.
7.5 The Parties shall have the right, at all times, to review the
books and records of the Company and to make copies of any of the
books and records for their own use. The Parties shall have this
right until at least two (2) years after the termination date of
this Agreement.
7.6 Either Party shall have the right to conduct specific auditing of
particular accounting item or matter during each financial year.
The Company shall be notified in writing of such specific
auditing thirty (30) days in advance. The Party requesting an
audit under this Clause shall have the right to have such audit
conducted by an independent auditor or other person having proper
knowledge and experience to do so.
7.7 The Company shall maintain both local currency and foreign
exchange bank accounts if so decided by the Board of the Company.
The Company shall hold such bank accounts in Nassau, Bahamas or
in such other jurisdiction as the parties may agree.
7.8 Foreign exchange revenues shall be retained in foreign exchange
accounts and shall only be converted into local currency to meet
approved budgeted expenditure. The authorised signatories to the
Company's bank accounts shall be any two (2) Directors in respect
of amounts below USD 30,000.00 or the local currency equivalent.
In respect of amounts above USD 30,000.00 (or the local currency
equivalent) signatories shall be any one (1) Director nominated
by SEACOR-SMIT and countersigned by any one signatory nominated
by SMIT.
The Directors' authorisation to affect payments from the
Company's bank accounts shall be limited to approved budgeted
items only.
7.9 It is the intention of the Parties that as a general rule, and
unless otherwise decided by a Shareholders' Meeting, on
finalization and audit of the financial statements of the Company
for each financial year the Company shall distribute as much as
possible of the net profit available for distribution and as
directed by the Board, having regard to:
(a) The cumulative financial situation of the Company, based
upon the financial statements for that financial year and
those for previous financial years;
(b) Amounts required to provide sufficient working capital and
any reserves (whether required by law or otherwise) for the
Company;
(c) The fiscal position of the Company.
CLAUSE 8: TRANSFER OF SHARES
-----------------------------
8.1 In the event that one of the Parties (hereinafter called the
"First Party") wishes to transfer its shares in the Company to a
third party it shall notify the other Party (hereinafter called
the "Other Party") in writing at least sixty (60) days prior to
the intended date of transfer, stating the name of the purchasing
party, the number of shares involved and the purchase price. The
Other Party
then shall have the right either to purchase the First Party's
shares itself at the same price, or have them purchased by a
party nominated by it, or sell its shares to the First Party at
the share purchase price notified by the First Party.
If the Other Party does not exercise either of its rights
contained in this Article within sixty (60) days after receipt of
the notification of transfer intention, the First Party can
complete the share transfer transaction to the third party at a
price not lower than the notified purchase price and subject to
the consent of the Other Party to the third party becoming a
shareholder in the Company, which consent shall not be
unreasonably withheld.
8.2 If either Party wishes to transfer all or any number of its
shares in the Company to a third party it shall be a constitutory
condition that the purchasing party becomes a party to this
Agreement without reservations or prejudice.
8.3 Clause 8.1 hereof shall not be applicable if the purchasing party
is an Affiliate of the transferring Party.
CLAUSE 9: TERM AND TERMINATION
-------------------------------
9.1 This Agreement shall remain in force until it is terminated.
9.2 If a Party hereto defaults in any of its material obligations
emanating from this Agreement or any bareboat charter of any of
the Vessels to SMIT or an affiliate thereof and fails to remedy
the default within sixty (60) days after a written notice is
given by the other Party requesting it to remedy the default,
upon the occurrence of such event of default and at any time
thereafter so long as the same shall be continuing, the
non-defaulting Party may at its option, upon giving notice to the
defaulting Party, terminate this co-operation by declaring a
default under this Agreement. Thereupon the defaulting Party
(and any duly appointed nominee shareholder in whose name any
shares in both the Company are held) shall conclusively be deemed
to have offered all of its shares in the Company to the
non-defaulting Party or its nominee in accordance with Clause 8
and the non-defaulting Party or its nominee shall notwithstanding
any further right granted by law, decree, statute or otherwise
have the option to purchase all the shares of the defaulting
Party at the commercial value as certified by the auditors of the
Company.
9.3 It is understood and agreed that the defaulting Party shall
remain responsible for any sums due by it to the Company and/or
the non-defaulting Party, and the Company and the non-defaulting
Party therefore may retain any balance held by either or both of
them and due to the defaulting Party and the proceeds of sales of
the assets of the Company (if any) towards the satisfaction of
any sums due or which may become due by the defaulting Party to
the Company concerned or the non-defaulting Party.
9.4 If the non-defaulting Party or its nominee shall not be able to
or willing to purchase all of the shares held by the defaulting
Party as aforesaid the Company concerned shall be liquidated in
accordance with the applicable provisions of this Agreement, the
Memorandum of Association and the Articles of Association, and
the Parties shall duly co-operate to implement all formal
requirements in this respect, and shall execute and do all deeds,
documents and things, necessary to put the company concerned into
liquidation.
9.5 Either Party may terminate this Agreement by giving sixty
(60) days written notice to the other if and when:
(a) The vessels and all the other assets owned or operated by
the Company are expropriated or nationalised by any
government or military authority;
(b) The shares in the Company are expropriated by any government
or military authority;
(c) The other Party has been nationalised;
(d) A liquidator or receiver or trustee or similar appointee is
appointed in relation to the other Party;
(e) A decision is made for winding up or dissolution of the
other Party;
(f) The ultimate control of one of the Parties has been acquired
by a third party.
9.6 This Agreement may be terminated by mutual agreement between the
Parties.
9.7 In any of the events provided for in Clauses 9.5 and 9.6 the
Company shall be put in liquidation.
9.8 In the event of liquidation of the Company for any reason, all
assets owned by the Company shall, subject to the provisions of
the Company Laws of the Commonwealth of the Bahamas, be disposed
of in a manner most beneficial to the Parties.
9.9 In the event that the Board of Directors of the Company shall
decide that Vessels shall be offered for sale, the order of
priority for sale of such Vessels shall be as follows unless the
parties agree otherwise:
(a) First priority shall be to sell such Vessels to another
Joint Venture between the Parties.
(b) Second priority shall be for the Board to invite both SMIT
and SEACOR-SMIT to submit a binding irrevocable offer for
the purchase of the vessel. Such offer shall be submitted
in writing in United States Dollars within 15 days of the
Board's decision to sell such Vessels and the offers shall
be opened by a notary public in London England in the
presence of a representative from both SMIT and SEACOR-SMIT.
In the event both SMIT and SEACOR-SMIT elect to submit
offers to purchase such Vessels the Party submitting the
highest unconditional offer for outright purchase of such
Vessels shall be declared the buyer and shall proceed with
the purchase formalities and take delivery of such Vessels
within 15 days of opening of the offers. Failure to
complete the purchase within the said 15 days shall entitle
the other Party to purchase such Vessels at the same price
within a further period of 15 days.
Notwithstanding the purchase procedure as described herein
the Company shall not be obliged to sell such Vessels to
either Party if the successful offer is below the current
book value of such Vessels.
In the event that neither Party submits an offer for
purchase of such Vessels or neither Party succeeds in
purchasing such Vessels, the Company shall adopt alternative
(c) herein:
(c) Third priority shall be to offer such Vessels for sale on
the open market.
CLAUSE 10: NON COMPETITION BETWEEN THE PARTIES
-----------------------------------------------
10.1 While this Agreement is in force the Parties hereto shall abide
by the provisions contained in Section 8.1 of the Asset purchase
Agreement, dated the same date as this Agreement, among SEACOR
Holdings, Inc., and certain of its subsidiaries, and SMIT
International N.V., and certain of its subsidiaries. The Parties
further agree that any breach of such provisions shall also be
deemed to be a breach of this provision.
10.2 The name of Smit and/or Seacor-Smit shall only be part of the
name of the Company as long as SMIT and SEACOR-SMIT are
Shareholders of the Company.
CLAUSE 11: CONFIDENTIALITY
---------------------------
11.1 All knowledge, data, technical and other information, including,
but not limited to budgets, reports, accounts, drawings and plans
of the Company, or disclosed by either Party to the other Party
which are neither in the public domain nor are legally bound to
be submitted, as well as all know-how data, and information
derived therefrom, shall not be disclosed by the Party receiving
such information to any third party other than institutes legally
entitled to demand same, and shall not be used by the other
Party, without the prior written consent of the Company or the
Party disclosing such information and only to the extent that
such consent has been granted.
11.2 The Parties agree that no press release or other public
announcement of any kind regarding this Agreement or any other
matter in relation hereto shall be made at any time without the
prior written consent of both Parties to the text, timing and
method of release of such press release or public announcement.
11.3 The provisions of this Clause 11 shall remain in full force and
effect for a period of two (2) years after the termination date
of this Agreement.
CLAUSE 12: WAIVER OF RIGHTS
----------------------------
12.1 Failure or delay on the part of either Party hereto to exercise
any right, power or privilege under this Agreement, or under any
other agreement relating hereto, shall not operate as a waiver
thereof; nor shall any single or partial
exercise of any right, power or privilege preclude any other
future exercise pursuant to this Agreement.
CLAUSE 13: BINDING EFFECT
--------------------------
13.1 This Agreement is made for the benefit of the Parties hereto and
shall be binding on each of them. This Agreement shall not be
changed orally, but only by a written instrument signed by the
Parties hereto.
CLAUSE 14: VALIDITY OF PROVISIONS
----------------------------------
14.1 The invalidity of any provision of this Agreement shall not
affect the validity of any other provision.
CLAUSE 15: ENTIRE AGREEMENT
----------------------------
15.1 This Agreement, Schedule A and the Exhibits 1, 2, 3 and 4
attached to this Agreement constitute the entire agreement
between the Parties with respect to the subject matter of this
Agreement and supersede all prior discussions, negotiations and
agreements between them. The Parties shall at all times operate
within the scope and in accordance with the conditions set forth
herein and in the Memorandum of and Articles of Association of
the Company. In the event of any discrepancy or conflict between
this Agreement and any of the Exhibits hereto this Agreement
shall have precedence.
CLAUSE 16: PARTIES APPROVAL
----------------------------
16.1 Where this Agreement grants a right to a Party to give its
approval to a course of action, such approval shall not
unreasonably be withheld by such Party.
CLAUSE 17: NOTICES
-------------------
17.1 Any notice or written communication provided for in this
Agreement to be given by either Party to the other Party,
including but not limited to any and all offers, writings, or
notices to be given hereunder shall be made by telefax and
confirmed by registered airmail or courier letter. The date of
receipt of a notice or communication hereunder shall be deemed to
be twelve (12) days after its postmark in the
case of an airmail letter and two (2) working days after dispatch
in the case of a courier letter.
All notices and communications shall be sent to the appropriate
address herein below set forth until the same is changed by
either Party by notice given in writing to the other Party.
SMIT: Smit International (Americas) N.V.
400 North Sam Houston
Parkway East, Suite 310
HOUSTON, Texas 77060
United States of America
Tel: +1 713 931 2150
Fax: +1 713 820 9734
SEACOR-SMIT: Seacor Holdings Inc.
1370 Avenue of the Americas, 25th floor
NEW YORK, NY 10019
United States of America
Tel: +1 212 307 6633
Fax: +1 212 582 8522
17.2 All communications between the Parties shall be in the English
language.
CLAUSE 18: COSTS
-----------------
18.1 Except as otherwise provided herein, all costs and expenses
(including legal and accounting expenses) of the Parties hereto
in connection with this Agreement shall be borne by the Party
incurring the same. The Parties shall procure that the Company
shall pay all the legal expenses relating to the formation of the
Company, the issue of share capital hereunder and all capital
duty, registration fees and other disbursements in connection
herewith and the costs and expenses of its auditors in relation
to any services to be performed by them hereunder.
CLAUSE 19: GOVERNING LAW
-------------------------
19.1 This Agreement is made under, and shall be construed, interpreted
and applied in accordance with the laws of England.
CLAUSE 20: ARBITRATION
-----------------------
20.1 Any dispute arising under this Agreement shall be settled by
arbitration in London, England, in accordance with the
Arbitration Act of 1950. The Party requesting arbitration shall
serve upon the other Party a written demand for arbitration with
the name and address of the Arbitrator appointed by it, and such
other Party shall within fourteen (14) days thereafter appoint an
Arbitrator and the two (2) Arbitrators so named shall appoint a
third within another fourteen (14) days thereafter and the
decision or award of any two (2) Arbitrators shall be final and
binding upon the Parties.
20.2 Should the Party upon whom the demand for arbitration is served
fail or refuse to appoint an Arbitrator within fourteen (14)
days, the single Arbitrator shall have the right to decide alone
and his decision or award shall be final and binding upon the
Parties.
20.3 The Arbitrator or Arbitrators shall have the discretion to impose
the cost of the arbitration upon the losing Party or divide it
between the Parties on any terms which may appear just.
CLAUSE 21: GENERAL COMPLIANCE
------------------------------
21.1 The Parties hereto agree to exercise their respective voting
rights for the time being in the Company and take such other
steps as for the time being lie within their respective powers to
give effect to the provisions of the Agreement and to procure
that the Company concerned performs and observes the provisions
of this Agreement as if it had been joined as a party hereto.
CLAUSE 22: EXHIBITS
--------------------
THE EXHIBITS ARE AS FOLLOWS:
22.1 EXHIBIT 1: Memorandum of Association
22.2 EXHIBIT 2: Articles of Association
22.3 EXHIBIT 3: Ship Management Agreement
22.4 EXHIBIT 4: Bareboat Charter
IN WITNESS WHEREOF the Parties hereto have caused this Agreement to be
executed by their duly authorised representatives on the date first
above written.
For and On Behalf of
SEACOR HOLDINGS INC.
/s/ John Gellert
---------------------
Authorised signatory
For and On Behalf of
SMIT-LLOYD (ANTILLEN) N.V.
/s/ Cees W. D. Bom
-----------------------
Authorised Signatory
NYFS11...:\93\73293\0013\1711\AGRD226N.020