Exhibit 99.2
STOCK PURCHASE AGREEMENT
STOCK PURCHASE AGREEMENT dated as of January 29, 1999, between
Tidewater Inc., a Delaware corporation (the "Company"), and Whitney
National Bank, acting solely in its capacity as trustee under the Trust
defined below and not in its individual capacity (the "Trustee").
W I T N E S S E T H:
WHEREAS, the Company has established, effective as of January 29,
1999, the Tidewater Inc. Grantor Stock Trust (the "Trust"), and the
accompanying Trust Fund; and
WHEREAS, the Company has appointed the Trustee as the trustee of
the Trust which has been established to hold the assets of the Trust Fund
pursuant to the terms of the Trust Agreement dated as of January 29, 1999
by and between the Company and the Trustee (the "Trust Agreement"); and
WHEREAS, the Trust Agreement provides that the assets of the
trust created thereunder shall be invested primarily in shares of Company
Stock (as defined in the Trust Agreement); and
WHEREAS, the Company wishes to sell and the Trustee has
determined to purchase shares of common stock, $0.10 par value per share
(the "Company Stock") from the Company, in the amount and at the purchase
price as set forth in this Agreement;
NOW, THEREFORE, in consideration of these premises and the mutual
promises contained herein, the parties hereto, intending to be legally
bound, hereby agree as follows:
1. PURCHASE; PURCHASE PRICE. Subject to the terms and
conditions of this Agreement, the Trustee hereby agrees to purchase on
behalf of the Trust Fund (the "Purchase") from the Company, and the Company
hereby agrees to issue and sell to the Trustee, 5,000,000 shares (the
"Shares") of Company Stock for consideration consisting of $500,000 in
cash, plus the promissory note (the "Note") in the form attached as
Schedule C to the Trust Agreement (together, the "Aggregate Purchase
Price"). The principal amount of the Note together with the $500,000 cash
payment shall equal the closing sale price of a share of Company Stock on
the New York Stock Exchange Composite Tape on January 28, 1999 multiplied
by 5,000,000 Shares. The Purchase shall occur on the Delivery Date.
2. DELIVERY; PAYMENT. The Purchase of the 5,000,000 shares of
Company Stock shall be consummated at or about 10:00 a.m. on January 29,
1999 (such date of delivery being hereinafter called the "Delivery Date")
at the offices of the Company. The Company will direct its transfer agent,
Boston Equiserve (the "Transfer Agent") to register the Shares in the name
of the Trustee, as trustee under the Trust, or in the name of its nominee,
which the Transfer Agent will do in book entry form on its records, against
delivery to the Company by the Trustee of the applicable portion of the
Aggregate Purchase Price therefor by wire transfer of immediately available
funds. The Company will pay all stamp and other transfer taxes, if any,
which may be payable in respect of the issuance, sale and delivery of the
Shares, shall be entitled to any refund thereof.
3. REPRESENTATIONS, WARRANTIES AND COVENANTS OF THE COMPANY.
The Company hereby represents, warrants and covenants to the Trustee as
follows:
3.1 The Company has been duly incorporated and is validly
existing as a corporation in good standing under the laws of the State of
Delaware with corporate power and authority to own, lease and operate its
properties and conduct its business as described in its Annual Report for
the year ended March 31, 1998 and the Company is duly qualified as a
foreign corporation to transact business and is in good standing in each
jurisdiction where its ownership or leasing of properties or the conduct of
its business requires such qualification.
3.2 The execution, delivery and performance of this
Agreement and all other documents or instruments to be executed or
delivered by the Company in connection with this Agreement are within the
Company's powers and have been duly authorized by all necessary action.
This Agreement and all other documents or instruments to be executed or
delivered by the Company in connection with this Agreement are valid and
binding upon the Company, and enforceable against the Company in accordance
with their respective terms except as the enforceability thereof may be
limited by the effect of any applicable bankruptcy, insolvency, fraudulent
conveyance, reorganization, moratorium and similar laws affecting
creditors' rights generally and by general principles of equity (regardless
of whether considered in a proceeding at law or in equity).
3.3 The execution, delivery and performance of this
Agreement and the consummation of the transactions contemplated hereby will
not conflict with or result in a breach of any of the terms or provisions
of, or constitute a default under (i) the Certificate of Incorporation or
Bylaws, each as amended and restated to date, of the Company, or (ii) any
provision of any indenture, mortgage, deed of trust, agreement, instrument,
order, arbitration award, judgment or decree to which the Company or any of
its subsidiaries is a party or by which any of their respective assets are
bound, or (iii) any statute, rule or regulation applicable to the Company
or any of its subsidiaries of any court, bureau, board, agency or other
governmental body having jurisdiction, which conflict, breach or default
might have a material adverse effect.
3.4 The authorized, issued and outstanding capital stock of
the Company is as set forth in Schedule 1, and the Company has no
obligations to issue any additional shares pursuant to any options,
warrants, conversion rights or other arrangements (other than in accordance
with the terms of stock options granted under the Company's 1975 Incentive
Program Stock Option Plan, the Company's 1992 Stock Option and Restricted
Stock Plan and the Company's 1997 Stock Incentive Plan and other than the
preference share purchase rights issued in accordance with the terms of the
Rights Agreement between the Company and The First National Bank of Boston
dated as of September 19, 1996); all shares of issued and outstanding
capital stock of the Company have been duly authorized and are fully paid
and nonassessable; the Shares have been duly and validly authorized for
issuance and sale to the Trustee and the Shares when issued and delivered
by the Company pursuant to this Agreement against payment of the
consideration herein, will be validly issued and fully paid and
nonassessable; and the issuance of the Shares hereunder is not subject to
preemptive rights. The Company has full right and authority to issue, sell,
transfer and deliver the Shares and will effectively transfer to the
Trustee, on the Delivery Date, the full right, title and interest therein
and thereto, free and clear of all options, claims, charges, encumbrances,
agreements, trusts, equities and rights, whether contingent or absolute, of
any nature whatsoever.
3.5 No authorization, approval or consent of any
governmental authority or agency is necessary in connection with the sale
of the Shares by the Company hereunder; the Shares are being issued
pursuant to a valid exemption from registration under the Securities Act of
1933, as amended (the "Securities Act") and applicable state securities
laws.
3.6 The Trust Agreement has been duly authorized by all
necessary corporate action on the part of the Company.
4. REPRESENTATIONS, WARRANTIES AND COVENANTS OF THE TRUSTEE, AS
TRUSTEE. The Trustee, in its capacity as such, represents, warrants and
covenants as follows:
4.1 The Trustee (i) is a duly organized and validly
existing national banking association having trust powers in good standing
and with full authority to act as Trustee and exercise trust powers under
the laws of the United States and (ii) has full corporate power and
authority to execute and deliver the Trust Agreement and to carry out the
transactions contemplated thereby.
4.2 The execution, delivery and performance of this
Agreement will not violate (i) the Trustee's Charter or By-Laws, each as
amended or restated to date, (ii) any provision of any indenture, mortgage,
deed of trust, agreement, instrument, order, arbitration award, judgment or
decree to which the Trustee or the Trust is a party or by which it or the
Trust or any of their respective assets are bound, or (iii) any statute,
rule or regulation applicable to the Trustee or the Trust of any court,
bureau, board, agency or other governmental body having jurisdiction, which
conflict, breach or default might have a material adverse effect.
4.3 This Agreement and the Trust Agreement have been duly
executed and delivered by the Trustee on behalf of the Trust and each
constitutes the legal, valid and binding obligation of the Trust
enforceable against the Trustee in accordance with their respective terms,
except as the enforceability thereof may be limited by the effect of any
applicable bankruptcy, insolvency, fraudulent conveyance, reorganization,
moratorium and similar laws affecting creditors' rights generally and by
general principles of equity (regardless of whether considered in a
proceeding at law or in equity).
4.4 The Trustee is acquiring the Shares on behalf of the
Trust Fund pursuant to the Trust Agreement without a view toward, or for
sale in connection with, any distribution thereof (within the meaning of
such term under applicable federal and state securities laws), and the
Shares shall be acquired, held and distributed only as provided in the
Trust Agreement.
4.5 No authorization, approval or consent of any
governmental authority or agency is necessary in connection with the
purchase of the Shares by the Trustee on behalf of the Trust hereunder.
5. INDEMNIFICATION. The Company shall defend, indemnify and
hold the Trustee harmless against any action, claim, proceeding, demand,
loss, liability, damage or expense (including reasonable attorneys' fees)
that the Trustee may suffer as a result of the breach by the Company of any
representation, warranty or obligation of the Company hereunder.
6. CONDITIONS TO CLOSING.
6.1 CONDITIONS TO THE TRUSTEE'S OBLIGATIONS AT CLOSING. The
obligations of the Trustee hereunder are subject to the fulfillment at or
before each Delivery Date of each of the following conditions:
(a) The representations and warranties contained in Section
3 hereof shall be true on and as the Delivery Date and, if the Delivery
Date is a date other than the date hereof, the Trustee shall have been
furnished with a certificate, dated such Delivery Date, to such effect,
signed by an authorized officer of the Company.
(b) No order of any court or administrative agency shall be
in effect which restrains or prohibits the transactions contemplated by
this Agreement, and no suit, action or other proceedings by any
governmental body or other person shall have been instituted which
questions the validity or legality of the transactions contemplated by this
Agreement.
6.2 CONDITIONS TO THE COMPANY'S OBLIGATIONS AT DELIVERY.
The obligations of the Company hereunder are subject to the fulfillment at
or before each Delivery Date of each of the following conditions:
(a) The representations and warranties contained in Section
4 hereof shall be true on and as of the Delivery Date and, if the Delivery
Date is a date other than the date hereof, the Company shall have been
furnished with a certificate dated such Delivery Date, to such effect,
signed by an authorized officer of the Trustee.
(b) No order of any court or administrative agency shall be
in effect which restrains or prohibits the transactions contemplated by
this Agreement, and no suit, action or other proceedings by any
governmental body or other person shall have been instituted which
questions the validity or legality of the transactions contemplated by this
Agreement.
7. REGISTRATION OF SHARES. Upon the written request of the
Trustee, the Company agrees that, at the Company's expense, it will prepare
and file, as promptly as practicable after such request, and use its
reasonable efforts to cause to become effective, a registration statement
on an appropriate form, including a final prospectus (the "Registration
Statement"), under and complying with the Securities Act and the rules and
regulations thereunder, relating to that number of the Shares as the
Trustee shall have indicated in its request. Whenever Shares are so
registered, the Company shall also use its reasonable efforts to register
or qualify such shares covered by the Registration Statement under the
"blue sky" or securities laws of such jurisdictions within the United
States as the Trustee may reasonably request; provided, however, that the
Company shall not be required to consent to the general service of process
for all purposes in any jurisdiction where it is not then qualified to do
business.
8. COMPENSATION AND EXPENSES. The Company shall pay such
compensation to the Trustee and such expenses of the Trust and the Trustee
as are provided in the Trust Agreement and Schedule B thereto.
9. INTEGRATION; AMENDMENT. This Agreement (including the
documents delivered pursuant hereto) and the Trust Agreement constitute the
entire agreement and understanding between the parties hereto relating to
the purchase of the Shares and supersedes any prior agreement or
understanding relating in any way to the transaction contemplated hereby.
This Agreement may be modified or amended only by a written instrument
executed by or on behalf of the parties hereto. The headings and captions
contained herein are solely for the convenience of reference and do not
constitute a part of this Agreement or affect in any way its meaning or
construction.
10. SAVINGS CLAUSE. The invalidity, illegality or
unenforceability of any one or more of the provisions of this Agreement
shall in no way affect or impair the validity and enforceability of the
remaining provisions hereof. In the event any such provision shall be so
declared unenforceable due to its scope or breadth, it shall be narrowed to
the scope or breadth permitted by law.
11. COUNTERPARTS. This Agreement may be executed in one or more
counterparts, each of which shall be deemed an original and all of which
together shall constitute one and the same instrument. It shall not be
necessary that any single counterpart thereof be executed by all parties so
long as each party executed at least one counterpart.
12. GOVERNING LAW. This Agreement shall be construed and
enforced in accordance with the laws of the State of Delaware, without
regard to any principles of conflicts of law.
13. SURVIVAL OF REPRESENTATIONS AND WARRANTIES. All
representations and warranties in this Agreement shall survive the Delivery
Date.
14. NOTICES. Any notice or other communication required or
permitted hereunder shall be in writing, either delivered by hand, by mail,
or by telex, telefax or telegram (charges prepaid), and any such notice
shall be effective when received at the address specified below (or, if by
mail, three business days after deposited in the U.S. mails, registered or
certified mail, postage prepaid and return receipt requested):
If to the Company: Tidewater Inc.
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Attention: Chief Financial Officer
With a copy to: Tidewater Inc.
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Attention: General Counsel
If to the Trustee: Whitney National Bank
Trust Department
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Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Addresses may be changed by written notice given pursuant to this
Section. Any notice given hereunder may be given on behalf of any party by
his counsel or other authorized representatives.
15. SPECIFIC PERFORMANCE. The parties hereto acknowledge that
damages would be an inadequate remedy for any breach of the provisions of
this Agreement and agree that the obligations of the parties hereunder
shall be specifically enforceable, and no party will take any action to
impede the other from seeking to enforce such right of specified
performance after any such breach.
16. SUCCESSORS AND ASSIGNS; ASSIGNABILITY. This Agreement shall
be binding upon and inure to the benefit of and be enforceable by the
parties hereto, and their respective legal representatives, successors and
assigns. This Agreement (a) shall not confer upon any person other than the
parties hereto and their respective successors and assigns any rights or
remedies hereunder; and (b) shall not be assignable by operation of law or
otherwise by any party hereto.
17. FURTHER ASSURANCES. Subject to the terms and conditions
herein provided, each of the parties hereto agrees to use all reasonable
efforts to take, or cause to be taken, all action and to do, or cause to be
done, all things necessary, proper or advisable to consummate and make
effective the transactions contemplated by this Agreement.
18. CERTAIN LIMITATIONS. Except as otherwise expressly provided
herein, the execution and delivery of this Agreement and the performance by
the Trustee of this Agreement have been, or will be, effected by the
Trustee solely in its capacity as Trustee and not individually.
IN WITNESS WHEREOF, the parties hereof have duly executed and
delivered this Agreement as of the date first above written.
Tidewater Inc.
By: /S/ ▇▇▇ ▇. ▇▇▇▇▇▇▇
Name: ▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Executive Vice President
Whitney National Bank, solely in its capacity
as Trustee under the Tidewater Inc. Grantor
Stock Trust and not individually, except as
otherwise expressly provided herein
By: /S/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Vice President
Schedule I
as of December 31, 1998
Number of authorized shares: 125 million common
3 million preferred
Number of treasury shares 0
Number of issued and outstanding shares 55,559,523
