STOCK PURCHASE AGREEMENT
This Stock Purchase Agreement is dated as of May 1, 1994, by and between Willbros Suramerica, S.A., a Panamanian corporation (the "Buyer") and Inversiones 252-28, C.A., a Venezuelan corporation (the "Stockholder"). The Buyer and Stockholder are hereinafter sometimes referred to individually as a "Party" or collectively as the "Parties".
W i t n e s s e t h :
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Whereas, Construcciones Acuaticas Mundiales, S.A. (the "Company") holds various Subsidiaries which collectively have been engaged in the provision of marine support services to the petroleum industry in and around the Republic of Venezuela as the "Heerema Venezuela Group"; and
Whereas, for various reasons unrelated to the historical performance or future business prospects of the Heerema Venezuela Group, the Stockholder desires to sell all of the issued and outstanding Shares of the Company; and
Whereas, based upon the goodwill and future business prospects of the Heerema Venezuela Group as a going concern, the Buyer desires to buy all of the Shares;
Now, Therefore, in consideration of the premises and of the mutual covenants and agreements contained herein, the Parties hereby agree as follows:
1.1 Defined Terms The following defined terms have the following meanings
------------- when used in this Agreement:
(a) "Agreement" means this Stock Purchase Agreement by and between the Buyer and the Stockholder, including all Schedules and Exhibits.
(b) "Bolivars" means the currency and legal tender of Venezuela.
(c) "Claim" means any pending or threatened claim, liability, obligation, action, suit, litigation, dispute, controversy, investigation, audit, inquiry, review or proceeding
affecting any company in the Heerema Venezuela Group and arising out of operations prior to the Closing.
(d) "Closing" and "Closing Date" have the meanings set forth in Section 2.2.
(e) "Company Agreements" means all contracts, agreements, leases, licenses, promises, obligations, bank accounts, financial instruments and other commitments, arrangements and understandings of a material nature, whether written or oral, between any member of the Heerema Venezuela Group and any other person or persons.
(f) "Company Balance Sheet" means the balance sheet as of December 31, 1993, and related financial information of the Company and the Subsidiaries on a consolidated basis as described in Section 3.5(iii) and attached as Schedule 3.6.
(g) "Company Financial Statements" has the meaning set forth in Section 3.5.
(h) "Dollars" means the currency and legal tender of the United States of America.
(i) "Hazardous Substance" means any substance that is listed, defined, designated, classified or otherwise known to be hazardous, toxic, radioactive, dangerous or polluting, or is otherwise regulated as such under any Legal Requirement whether by type or by quantity, including any toxic substance or waste, pollutant, contaminant, hazardous substance or waste, industrial substance or waste, petroleum or petroleum-derived substance or waste, gas, radon, radioactive materials, asbestos, asbestos-containing materials, urea formaldehyde foam insulation, lead or polychlorinated biphenyls.
(j) "Heerema Guarantee" means the guarantee of the Stockholder's obligations provided in favor of the Buyer attached as Exhibit A.
(k) "Heerema Venezuela Group" means the Company and each of the Subsidiaries.
(l) "Intellectual Property" means any patent, tradeservice, tradename, logo, service mark, service name, copyright and all applications in respect thereof described on Schedule 3.13.
(m) "Judgment" means any judgment, writ, injunction, ruling or order of any governmental, administrative or judicial authority affecting any company in the Heerema Venezuela Group and arising out of operations prior to the Closing.
(n) "Legal Expenses" means any and all fees, costs and expenses of any kind reasonably incurred by a person or its counsel in investigating, preparing for, defending against or taking other action with respect to any Claim or Judgment.
(o) "Legal Requirements" means all applicable laws, ordinances, codes, rules, Permits, regulations, standards, orders, Judgments and other requirements in Venezuela of any governmental, administrative or judicial entity having jurisdiction.
(p) "Material Adverse Effect" means any change in, or effect on, the Company or any Subsidiary which is, or with reasonable probability might be, materially adverse to the business, operations, Property, condition or prospects of the Heerema Venezuela Group, taken as a whole.
(q) "Permits" means all franchises, licenses, permits, registrations, certificates, consents, approvals or authorizations required to operate lawfully.
(r) "Property" means all real property, personal property and all other tangible and intangible assets of the Company and its Subsidiaries, whether owned or leased, including all improvements and/or modifications.
(s) "Purchase Price" has the meaning set forth in Section 2.1(b).
(t) "Security Interest" means any security interest, pledge, lien, charge, claim, option, equity, right, restriction on transfer or encumbrance of any kind or character.
(u) "Shares" has the meaning set forth in Section 3.3 and Schedule 3.3.
(v) "Subsidiary" or "Subsidiaries" means any or all of the four companies described in Schedule 3.2.
(w) "Taxes" means any tax, charge, fee, duty, levy or other assessment imposed by any governmental authority, including any income, withholding, capital gain, alternative minimum, gross receipts, environmental, excess profits, value added, excise, ad valorem, property, asset revaluation, sales, stamp, documentary, production, import or export of equipment or materials, windfall profits, occupation, use, service, transportation, power generation, transfer, payroll, franchise, royalty, severance or bonus tax, or any similar tax, charge or assessment, including any interest, penalties or additions to the tax.
(x) "Venezuela" means the Republic of Venezuela.
PURCHASE AND SALE OF SHARES
2.1 Purchase and Sale. Upon the terms and conditions set forth in this
----------------- Agreement, the Stockholder shall sell to the Buyer, and the Buyer shall purchase from the Stockholder, all of the Shares. At the Closing:
(a) The Stockholder shall (i) sell, assign, transfer and deliver to
the Buyer the certificates evidencing the Shares by endorsement and
delivery of the Shares, in conjunction with a corresponding entry in the
stock registry book of the Company duly signed by the Stockholder, the
Buyer and the authorized officer(s) of the Company if required, and (ii)
deliver to the Buyer the Heerema Guarantee executed in the form set forth
on Exhibit A; and
(b) The Buyer shall purchase and receive the Shares and the Heerema
Guarantee from the Stockholder and, in payment therefor, shall deliver to
the Stockholder by wire transfer to a bank in Venezuela Seven Million Three
Hundred Thousand Dollars ($7,300,000), less the amount, if any, by which
the consolidated net book value of the Company in Bolivars, stated at cost
in accordance with generally accepted accounting principles in the United
States, is less than Three Hundred Seventy-Seven Million Three Hundred
Thousand Bolivars (B377,300,000), converting the Bolivar difference using
an exchange rate of 103 Bolivars to 1 Dollar (the "Purchase Price").
2.2 Closing. Subject to the conditions set forth in this Agreement, the
------- closing of the purchase and sale of the Shares (the "Closing") shall take place in the offices of Baker & McKenzie, Caracas, Venezuela on or before May 27, 1994, or such other date and location agreed to by the Buyer and the Stockholder (the "Closing Date").
REPRESENTATIONS AND WARRANTIES
OF THE STOCKHOLDER
The Stockholder, as the sole and true owner of one hundred percent (100%) of the shares of capital stock of the Company acknowledges that it has, and shall for all purposes of this Agreement shall be deemed to have, complete and exact knowledge of all facts and circumstances relating to the Company and each Subsidiary and, with this depth of knowledge, hereby represents and warrants that the statements of fact and representations and warranties that follow in this Agreement are true and correct and shall remain true and correct through the Closing:
3.1 Organization and Good Standing. The Company is a corporation duly
------------------------------ organized, validly existing and in good standing under the laws of Venezuela, and has the corporate power and authority to own, lease and operate the Property used in its business and to carry on its business as now being conducted. The Company is duly qualified to do business and is in good standing in the jurisdictions where it currently operates. The Company will deliver to the Buyer prior to Closing complete and correct copies of its articles of incorporation and by-laws, as amended and presently in effect.
3.2 Subsidiaries. Set forth on Schedule 3.2 is a true and complete list
------------ of all Subsidiaries of the Company, stating, with respect to each Subsidiary, its place of incorporation, capitalization, equity ownership and authorized business jurisdictions. Each of the Subsidiaries is a corporation duly organized, validly existing and in good standing under the laws of the jurisdiction of its incorporation and has the corporate power and authority to own, lease and operate the Property used in its business and to carry on its business as now being conducted. The Subsidiaries are duly qualified to do business and are in good standing in the jurisdictions where they currently operate. All of the outstanding shares of capital stock of each of the Subsidiaries have been validly authorized and issued, are fully paid and nonassessable, have not been issued in violation of any preemptive right or any Legal Requirement, and are owned by the Company or a Subsidiary, and are free and clear of any Security Interest. The Company will deliver to the Buyer prior to Closing complete and correct copies of the articles of incorporation and the by-laws of each Subsidiary, as amended and presently in effect.
3.3 Capitalization. Set forth on Schedule 3.3 is a description of the
-------------- Shares. The Shares constitute all the issued and outstanding shares of capital stock of the Company and all have been validly authorized and issued, are fully paid and nonassessable and have not been issued in violation of any preemptive right or any Legal Requirement. There is no Security Interest, preemptive right or other agreement, commitment or understanding of any kind or character, fixed or contingent, that directly or indirectly encumbers the Shares. There are no outstanding options, warrants, convertible securities or other instruments which could entitle the holder to acquire shares of capital stock in the Company or any Subsidiary.
3.4 Authority, Approvals and Consents. The Stockholder has the corporate
--------------------------------- power and authority to execute, deliver and perform this Agreement and to consummate the transactions contemplated hereby. The execution, delivery and performance of this Agreement have been duly authorized and approved by the Board of Directors of the Stockholder and no other corporate proceedings on the part of the Stockholder are necessary to authorize and approve this Agreement and the transactions contemplated hereby. This Agreement has been duly executed and delivered by the Stockholder, and constitutes a valid and binding obligation of the Stockholder, enforceable against the
Stockholder and Heerema Holding Construction, Inc. in accordance with its terms. The execution, delivery and performance of this Agreement by the Stockholder, and the consummation of the transactions contemplated hereby, do not and will not:
(i) contravene any provisions of the articles of incorporation or
by-laws of the Stockholder, the Company or any Subsidiary;
(ii) conflict with, result in a breach of any provision of,
constitute a default under, result in the modification or cancellation of,
or give rise to any right of termination or acceleration in respect of any
(iii) violate or conflict with any Legal Requirement applicable to
the Stockholder, the Company or any Subsidiary, or any of their respective
businesses or Property; or
(iv) require any authorization, consent, order, permit, approval of,
or notice to, or filing, registration or qualification with, any
governmental, administrative or judicial authority.
Except as described on Schedule 3.9, no authorization, consent, order, permit, approval of, or notice to, or filing, registration or qualification with, any governmental administrative or judicial authority is necessary to enable the Company or any Subsidiary to continue to conduct its business and operations and use its Property after the Closing in a manner which is in all material respects consistent with that in which they are presently conducted.
3.5 Financial Statements. (a) The Company previously has delivered to
-------------------- the Buyer true and complete copies of:
(i) the audited balance sheet of the Company and each of the
Subsidiaries, as of December 31 in each of the calendar years 1988 through
1992, and the related statements of income, stockholders' equity and
changes in financial position for the fiscal years ended on such dates,
together with the notes thereto, in each case certified and accompanied by
a report of Briner & Asociados, independent certified public accountants;
(ii) comparative audited balance sheets prepared by Briner &
Asociados for the Company and each of the Subsidiaries, separately and on a
consolidated basis, as of December 31, 1992 and 1993, and the related
audited statements of income, stockholders' equity and changes in financial
position for the calendar years 1992 and 1993, together with the notes
thereto, all in English and stated in Bolivars; and
(iii) comparative audited balance sheets prepared by Briner &
Asociados for the Company and the Subsidiaries on a consolidated basis as
of December 31, 1992 and 1993, stated at cost in Bolivars, including also
related audited statements of income, stockholders' equity and changes in
financial position, together with notes thereto, all in English and in
accordance with generally accepted accounting principles as applied in the
United States of America.
All the foregoing financial statements, including the notes thereto, are referred to herein collectively as the "Company Financial Statements."
(b) The books and accounts of the Company and the Subsidiaries are complete and correct and fully and fairly reflect all of the transactions of the Company and the Subsidiaries.
3.6 Absence of Undisclosed Liabilities. Set forth on Schedule 3.6 is the
---------------------------------- Company Balance Sheet. Neither the Company nor any Subsidiary has any liability of any kind or character, due or to become due, accrued, absolute, contingent or otherwise, including any condition that may give rise to any Claim or unfunded obligation, except for (i) liabilities expressly reflected or reserved against in the Company Balance Sheet, (ii) current liabilities incurred in the ordinary course of business and consistent with past practice after the date of the Company Balance Sheet, and (iii) liabilities described in this Agreement but not required to be accrued on the Company Balance Sheet.
3.7 Absence of Material Adverse Effect. Except as described on Schedule
---------------------------------- 3.7, since December 31, 1993, there has been no Material Adverse Effect and there is no condition, development or contingency of any kind, including any Claim, which so far as reasonably can be foreseen, may result in any Material Adverse Effect.
3.8 Taxes. Except as described on Schedule 3.8 and reserves therefor
----- reflected expressly on the Company Balance Sheet, neither the Company nor any Subsidiary is liable, or will become liable, for any Taxes for any period ended on or prior to December 31, 1993. Audits of all income tax returns in which the Company or any Subsidiary is included have been completed for all fiscal years through the fiscal year ended December 31, 1992, and all adjustments proposed for such years have been fully satisfied. No adjustment has been proposed by the tax authorities in Venezuela with respect to any return for any subsequent year. The statute of limitations on assessment with respect to the income tax returns in which the Company or any Subsidiary is included has expired for all fiscal years through the fiscal year ended December 31,1989. Neither the Company, any Subsidiary, nor any corporation authorized to act as agent for the Company or any Subsidiary has given or been requested to give any waiver of any statutes of limitations relating to the payment of Taxes. Neither the Company nor the Stockholder
knows of any basis for an assertion of a deficiency for Taxes against the Company or any Subsidiary. The Stockholder will cooperate, and will cause each of their affiliates to cooperate, with the Company and the Subsidiaries in the filing of any returns and in any audit or refund claim proceedings involving Taxes for which the Company or any Subsidiary may be liable or with respect to which the Company or any Subsidiary may be entitled to a refund corresponding to periods ending on or prior to December 31, 1993.
3.9 Legal Matters. (a) Except as set forth on Schedule 3.9, (i) there is
------------- no Claim against or affecting the Company, any Subsidiary or any Property, (ii) there is no fact, condition or circumstance which may give rise to any Claim being asserted against the Company, any Subsidiary or any Property and (iii) neither the Company nor any Subsidiary nor any Property is subject to any Judgment.
(b) Except as set forth on Schedule 3.9, the businesses of the Company and the Subsidiaries are being conducted in compliance with all Legal Requirements and no event has occurred or is continuing which could result in the termination of any Permit.
(c) Neither the Stockholder, the Company nor any Subsidiary has taken any action that would violate the provisions of the Foreign Corrupt Practices Act of 1977, as amended, of the United States of America.
3.10 Property. (a) Set forth on Schedule 3.10 is a list of Property
-------- owned by or leased to the Company or any of the Subsidiaries. The Property is adequate for the conduct of the respective businesses of the Company and the Subsidiaries. The Company and one or more of the Subsidiaries have good and marketable title to all Property and such Property is held free and clear of all Security Interests, except those set forth on Schedule 3.10.
(b) All Property used in operations is insurable and is otherwise in good repair. Except as set forth on Schedule 3.10, the Property conforms with all Legal Requirements. All written notices of violations of Legal Requirements affecting any Property have been complied with. All Property has access to such public roads and waterways, including those presently in use, and such utilities and other services as are necessary for the present and contemplated uses thereof.
(c) Except as described on Schedule 3.9, neither the Company nor any Subsidiary (i) is under any obligation under any Legal Requirement to perform reclamation on or off the Property arising out of past or present operating activities, or (ii) is otherwise out of compliance with Legal Requirements pertaining to the environment, presuming that the Property will continue to be used for industrial purposes. The Property is not now the site for any surface or underground storage or dumping of Hazardous Substances. Hazardous Substances have not been used for landfill purposes.
3.11 Inventories. The value of inventories carried on the Company Balance
----------- Sheet are stated at the lower of cost or market in accordanc