Exhibit 4.3
STOCKHOLDERS' AGREEMENT
Among
SUPERIOR ENERGY SERVICES, INC.
And
FIRST RESERVE FUND VII, LIMITED PARTNERSHIP
FIRST RESERVE FUND VIII, LIMITED PARTNERSHIP
July 15, 1999
STOCKHOLDERS' AGREEMENT
This Stockholders' Agreement (this "Agreement") is entered into this
15th day of July, 1999, is by and among Superior Energy Services, Inc., a
Delaware corporation ("Superior"), and First Reserve Fund VII, Limited
Partnership, a Delaware limited partnership, and First Reserve Fund VIII,
Limited Partnership, a Delaware limited partnership (each a "First Reserve
Fund" and, collectively, the "First Reserve Funds").
W I T N E S S E T H
WHEREAS, pursuant to that certain Agreement and Plan of Merger (the
"Merger Agreement") dated as of April 20, 1999 entered into by and among,
INTER ALIA, the First Reserve Funds and Superior, each of the First Reserve
Funds received upon consummation of the Merger contemplated by the Merger
Agreement, shares of Superior Common Stock in exchange for the shares of
common stock of Cardinal Holding Corp. owned by it; and
WHEREAS, the parties hereto desire to set forth certain additional
agreements among them relating to the First Reserve Group's (as defined
below) acquisition and ownership of Superior Securities.
NOW, THEREFORE, in consideration of the mutual promises and covenants
herein contained, the parties hereto agree as follows:
ARTICLE 1
Defined Terms
Section 1.1 DEFINED TERMS. The following capitalized terms when
used in this Agreement shall have the following meanings:
"Affiliate" shall have the respective meanings assigned thereto in
Rule 405 as presently promulgated under the Securities Act.
"beneficial ownership" and "group" shall have the respective meanings
assigned thereto in Rules 13d-3 and 13d-5 as presently promulgated under
the Exchange Act.
"Board" means the Board of Directors of Superior.
"Common Stock" means the common stock, $.001 par value per share, of
Superior.
"Director" means any member of the Board.
"Exchange Act" means the Securities Exchange Act of 1934, as amended.
"First Reserve Group" means, collectively, the First Reserve Funds and
their respective Affiliates; provided, however, that a Person shall not be
deemed a member of the First Reserve Group if the only reason that such
Person would be deemed an Affiliate of the First Reserve Funds is because
it is (a) a limited partner of either or both of the First Reserve Funds,
(b) an operating company in which either or both of the First Reserve Funds
(and/or any other fund or funds similar to the First Reserve Funds that is
controlled by, controlling or under common control with the First Reserve
Funds) have an investment, but in which the First Reserve Funds and such
other funds do not, in the aggregate (i) have at least a majority of the
voting power (defined in a manner consistent with the definition of Voting
Power set forth herein with respect to Superior) of the securities of such
operating company, or (ii) the contractual right to designate at least a
majority of the members of the board of directors (or similar governing
body) of such operating company, or (c) an Affiliate of an operating
company described in clause (b) who is not otherwise an Affiliate of the
First Reserve Group.
"Fund Directors" shall have the meaning assigned to it in Section
2.1(b) hereof.
"Independent Director" means, at any time, any Director who both (a)
would qualify as an "independent director" within the meaning given to such
term under the rules of the principal securities exchange or market on
which the Common Stock is then listed or admitted for trading and (b) is
not an Affiliate of either Superior or the First Reserve Funds (other than
solely as the result of being a director of Superior).
"Person" means an individual, partnership, corporation, limited
liability company, business trust, joint stock company, trust,
unincorporated association, joint venture or other entity of whatever
nature.
"Registration Rights Agreement" means that certain Registration Rights
Agreement dated the date hereof among Superior and the First Reserve Funds,
as amended, modified or supplemented from time to time.
"Securities Act" means the Securities Act of 1933, as amended.
"Superior Securities" means, collectively, the Common Stock and any
class or series of Superior's preferred stock, and any other securities,
warrants or options or rights of any nature (whether or not issued by
Superior) that are convertible into, exchangeable for, or exercisable for
the purchase of, or otherwise give the holder thereof any rights in respect
of common stock, or any class or series of Superior preferred stock that is
entitled to vote generally for the election of directors or otherwise.
"Termination Date" means July 15, 2009.
"Voting Power" means, at, any measurement date, the total number of
votes that could have been cast in an election of directors of Superior had
a meeting of the stockholders of Superior been duly held based upon a
record date as of the measurement date if all Superior Securities then
outstanding and entitled to vote at such meeting were present and voted to
the fullest extent possible at such meeting.
Section 1.2 OTHER DEFINITIONAL PROVISIONS. The words "hereof"
"herein" and "hereunder" and words of similar import when used in this
Agreement shall refer to this Agreement as a whole and not to any
particular provision of this Agreement, and section references are to this
Agreement unless otherwise specified. The meanings given to terms defined
herein shall be equally applicable to both the singular and plural forms of
such terms.
ARTICLE 2
Board of Directors; Voting
Section 2.1 ELECTION OF DIRECTORS. Each of the First Reserve
Funds hereby agrees that it shall vote all of the Superior Securities over
which it has voting control and shall take, and cause all other members of
the First Reserve Group to take, all other necessary or desirable actions
within its control (whether in its capacity as a stockholder or otherwise)
in order to cause the following:
(a) The Board shall at all times consist of six Directors.
(b) The election to the Board of: (i) two designees of the First
Reserve Funds (the designees of the First Reserve Funds are
collectively referred to as the "Fund Directors"); (ii) two
designees of the First Reserve Funds who are Independent
Directors and acceptable to the Board as evidenced by a majority
vote of the Board; (iii) Superior's Chief Executive Officer; and
(iv) subject to the provisions of Section 2.1(c), such number of
Independent Directors as may be designated from time to time by a
majority vote of the Board in order to complete the Board and
fill any vacancies as contemplated by this Section 2.1(b);
provided, however, that if at any time (A) the First Reserve
Funds cease to beneficially own, in the aggregate, at least 15%
of the Voting Power, the First Reserve Funds shall cease to have
the right to designate any Independent Directors pursuant to
Section 2.1(b)(ii) and (B) the First Reserve Funds cease to
beneficially own, in the aggregate, at least 5% of the Voting
Power, unless the Board otherwise consents, all of the Fund
Directors shall immediately resign.
(c) The reelection to the Board at the first annual meeting of the
stockholders that is held after the date of this Agreement of one
incumbent Director to be designated by Superior's Chief Executive
Officer, which Director will serve in lieu of one of the
Independent Directors to be elected pursuant to Section
2.1(b)(iv) until the termination of such Director's term at the
second annual meeting of Superior's stockholders.
(d) In the event that any Director designated pursuant to Section
2.1(b) for any reason ceases to serve as a member of the Board
during his term of office, the Person or Persons who previously
designated such Director pursuant to Section 2.1(b) shall be
entitled to designate a successor Director to fill the vacancy
created thereby on the terms and subject to the conditions of
this Section 2.1. If and to the extent that the remaining
members of the Board are entitled to fill vacancies on the Board,
upon the occurrence of any vacancy, the Board will promptly take
any actions necessary to fill such vacancies in accordance with
the foregoing provision.
(e) The First Reserve Funds shall cause their designees on the Board
to take all necessary or appropriate action to assist in the
nomination for election as Directors of such other nominees as
may be selected in accordance with Section 2.1(b), and the First
Reserve Funds shall vote, and cause all Superior Securities
beneficially owned by any member of the First Reserve Group to be
voted, for the election of such other nominees as well as for the
election of all nominees of the First Reserve Group designated by
them pursuant to Section 2.1(b).
Section 2.2 SUPERIOR ACTIONS. Superior hereby agrees to take all
necessary or appropriate action to assist in the nomination for election as
Directors the person or persons designated pursuant to the provisions of
Section 2.1. Superior hereby agrees not to take any action inconsistent
with the provisions of Section 2.1. Superior shall vote all management
proxies in favor of such nominees, except for such proxies that
specifically indicate to the contrary. Superior's Board shall recommend
that its stockholders vote in favor of such nominees, and shall use
reasonable best efforts to solicit from its stockholders proxies voted in
favor of such nominees.
ARTICLE 3
Acquisition and Sale of Superior Securities
Section 3.1 SUPERIOR SECURITIES. The First Reserve Funds covenant
and agree with Superior that except for the Superior Securities acquired
pursuant to the Merger Agreement, no member of the First Reserve Group
shall, directly or indirectly, acquire any Superior Securities, if the
effect of such acquisition, agreement or other action would be to increase
the aggregate beneficial ownership of Superior Securities by the First
Reserve Group (without considering the Superior Securities acquired by the
First Reserve Group pursuant to the Merger Agreement and any Superior
Securities issued pursuant to a stock split, stock dividend or
recapitalization with respect to such Superior Securities) to 10% or more
of either the Voting Power or the number of outstanding shares of any class
or series of Superior Securities.
Section 3.2 DISTRIBUTION OF SUPERIOR SECURITIES. Each of the
First Reserve Funds covenants that it shall not, and that it shall cause
each other member of the First Reserve Group not to, directly or
indirectly, sell, transfer any beneficial interest in, or beneficial
ownership of, pledge, hypothecate or otherwise dispose of any Superior
Securities, except by conversion, exchange or exercise of such Superior
Securities pursuant to their terms in a manner not otherwise in violation
of Section 3.1 or pursuant to:
(a) a bona fide pledge of or the granting of a security interest
or any other lien or encumbrance in such Superior Securities to a lender
that is not a member of the First Reserve Group to secure a bona fide loan
for money borrowed made to one or more members of the First Reserve Group,
the foreclosure of such pledge or security interest or any other lien or
encumbrance that may be placed involuntarily upon any Superior Securities,
or the subsequent sale or other disposition of such Superior Securities by
such lender or its agent;
(b) a transfer, assignment, sale or disposition of such Superior
Securities to another member of the First Reserve Group that has signed
this Agreement;
(c) a distribution of Superior Securities to any partner of a
First Reserve Fund; provided that any distributee that is a member of the
First Reserve Group has signed this Agreement; and provided, further that
any arrangements coordinated or initiated by or on behalf of a First
Reserve Fund to assist its limited partners in the sale of Superior
Securities distributed to them must comply with the provisions of this
Section 3.2;
(d) sales in public offerings registered under the Securities
Act;
(e) sales effected in compliance with the provisions of Rule 144
under the Securities Act;
(f) other privately negotiated sales of Superior Securities;
(g) upon consummation of or otherwise in connection with a
business combination or similar transaction involving Superior that is
approved by the Board; or
(h) sales provided for in Section 3.6.
Notwithstanding anything to the contrary in this Section 3.2, in effecting
any sale, transfer of any beneficial interest in or other disposition of
Superior Securities pursuant to Sections 3.2 (c) and (f), above, the
members of the First Reserve Group selling, transferring or disposing such
Superior Securities shall, unless the Board consents otherwise, use their
reasonable best efforts to refrain from knowingly selling, transferring or
disposing of such number of Superior Securities as represent either the
right to acquire or ownership of 5% or more of the Voting Power to any one
Person or group of Persons.
Section 3.3 PROXY SOLICITATIONS. As a stockholder, the First
Reserve Group shall vote or cause to be voted all Superior Securities of
which any member of the First Reserve Group is the beneficial owner with
respect to each matter submitted to Superior's stockholders providing for,
involving, expected to facilitate or that could reasonably be expected to
result in a business combination or other change in control of Superior
that has not been approved by the Board (including without limitation the
election or removal of one or more Superior directors or one or more
nominees for director proposed by the Board), in the manner recommended by
the Board.
Section 3.4 GROUPS. Each of the First Reserve Funds covenants
that it shall not, and that no other member of the First Reserve Group
shall, join a partnership, limited partnership, syndicate or other group,
or otherwise act in concert with any other Person, for the purpose of
acquiring, holding, voting or disposing of any Superior Securities, other
than the First Reserve Group itself.
Section 3.5 TAKEOVER OFFERS. Each of the First Reserve Funds
covenants that it shall not, and that no other member of the First Reserve
Group shall, directly or indirectly advise, assist, act as a financing
source for or otherwise invest in any other Person in connection with a
transaction or group of transactions that would result in a change of
control of Superior (as such term is defined in Superior's 1999 Stock
Incentive Plan), publicly disclose any intention, plan or arrangement
inconsistent with the foregoing, or initiate, induce or attempt to induce
any other Person to initiate any proposal that can reasonably be expected
to result in a change of control of Superior. Subject to compliance with
this Section 3.5, on and after the eleventh business day after commencement
of a tender or exchange offer made by a Person who is not a member of the
First Reserve Group for outstanding Superior Securities (a "Qualifying
Offer"), any member of the First Reserve Group may tender or exchange any
Superior Securities beneficially owned by it pursuant to such Qualifying
Offer, provided the Qualifying Offer shall have been approved, or not
opposed, by the Board. If a Qualifying Offer is opposed by the Board,
then, from and after the eleventh business day after commencement of such
Qualifying Offer, any member of the First Reserve Group may tender or
exchange shares of Superior Securities pursuant to such Qualifying Offer
only if (i) no tender or exchange of, or indication of an intention to
tender or exchange, Superior Securities is made by any member of the First
Reserve Group earlier than 24 hours prior to the expiration of any time
after which Superior Securities tendered may be treated less favorably than
other Superior Securities tendered or exchanged prior thereto, and (ii) a
binding agreement is reached with the bidder or offeror prior to any tender
or exchange specifying that only such number of Superior Securities
submitted for tender or exchange shall be accepted by the bidder or offeror
as are equal to (A) the percentage of such Superior Securities not
beneficially owned by the First Reserve Group that have been tendered or
exchanged, multiplied by (B) the total number of such Superior Securities
beneficially owned by the member of the First Reserve Group.
Notwithstanding the foregoing, the provisions of this Section 3.5 shall
terminate upon the earlier of the fifth anniversary of this Agreement or
such time as the First Reserve Group beneficially owns less than 15% of the
Voting Power.
Section 3.6 LIMITATION ON COVENANTS. Notwithstanding any
provision to the contrary in this Agreement, during any period that any
person designated by the First Reserve Funds to serve as a Director in
accordance with the provisions of Section 2.1(b) is not serving as a
Director as a result of the failure of Superior or the Board to comply with
the terms of this Agreement, or if any such designee is not elected by the
stockholders (and Section 2.1(b) is complied with), then the covenants set
forth in this Article 3 shall cease to be effective during such period;
provided, however, that if a person designated by the First Reserve Funds
ceases to be a Director by reason of death or resignation, then the
provisions of this Section 3.6 shall not apply if the Board appoints First
Reserve Funds' designated replacement to fill an such vacancy within 15
business days after Superior receives notice of such designation. The
provisions of this Section 3.6 shall be in addition to any other remedies
that the First Reserve Funds may have in connection with a breach of the
provisions of Article 2 hereof.
ARTICLE 4
Legend And Stop Transfer Order
Section 4.1 LEGEND AND STOP TRANSFER ORDER. To assist in
effectuating the provisions of this Agreement, the First Reserve Funds
hereby consent: (a) to the placement, on certificates issued with respect
to the shares of Common Stock issued to them pursuant to the Merger
Agreement or otherwise promptly after any Superior Securities become
subject to the provisions of this Agreement, of the following legend on all
certificates representing ownership of Superior Securities owned of record
by any member of the First Reserve Group or by any Person where a member
of the First Reserve Group is the beneficial owner thereof, until such
shares are sold, transferred or disposed in a manner permitted hereby to a
Person who is not then a member of the First Reserve Group:
The shares represented by this certificate are subject to the
provisions of an Agreement among, inter alia, Superior Energy
Services, Inc. and First Reserve Fund VII, Limited Partnership,
and First Reserve Fund VIII, Limited Partnership, and may not be
voted, sold, transferred, pledged, hypothecated or otherwise
disposed of except in accordance therewith. Copies of the
Agreement are on file at the office of the Corporate Secretary of
Superior Energy Services, Inc.
;and (b) to the entry of stop transfer orders with the transfer agent or
agents of Superior Securities against the transfer of Superior Securities
except in compliance with the requirements of this Agreement, or if
Superior acts as its own transfer agent with respect to any Superior
Securities, to the refusal by Superior to transfer any such securities
except in compliance with the requirements of this Agreement. Superior
agrees to remove promptly all legends and stop transfer orders with respect
to the transfer of Superior Securities being made to a Person who is not
then a member of the First Reserve Group in compliance with the provisions
of this Agreement.
ARTICLE 5
Miscellaneous
Section 5.1 TERMINATION. Except as provided in this Section 5.1,
the respective covenants and agreements of the First Reserve Funds and
Superior contained in this Agreement will continue in full force and effect
until the earliest to occur of either of the following: (i) the
Termination Date, or (ii) the sale or other disposition in accordance with
this Agreement by the First Reserve Group of such number of Superior
Securities such that, solely as a result of such sale or other disposition,
the First Reserve Group beneficially owns in the aggregate Superior
Securities representing less than 5% of the Voting Power. Upon any
termination of this Agreement pursuant to this Section 5.1 all of the
obligations of Superior and the First Reserve Funds hereunder shall
terminate.
Section 5.2 NOTICES. Any notice or other communication required
or permitted hereunder shall be in writing or by telex, telephone or
facsimile transmission with subsequent written confirmation, and may be
personally served or sent by United States mail and shall be deemed to have
been given upon receipt by the party notified. For purposes hereof, the
addresses of the parties hereto (until notice of a change thereof is
delivered as provided in this Section 5.2) shall be as set forth opposite
each party's name on the signature page hereof.
Section 5.3 WAIVERS AND AMENDMENTS; NONCONTRACTUAL REMEDIES;
PRESERVATION OF REMEDIES. This Agreement may be amended, superseded,
canceled, renewed or extended, and the terms hereof may be waived, only by
a written instrument signed by Superior and the holders of a majority of
the Superior Securities held by the First Reserve Funds or, in the case of
a waiver, by the party waiving compliance. No delay on the part of any
party in exercising a right, power or privilege hereunder shall operate as
a waiver thereof, nor shall any waiver on the part of any party of any such
right, power or privilege, nor any single or partial exercise of any such
right, power or privilege, preclude a further exercise thereof or the
exercise of any other such right, power or privilege. The rights and
remedies herein provided are cumulative and are not exclusive of any rights
or remedies that any party may otherwise have at law or in equity. The
rights and remedies of any party based upon, arising out of or otherwise in
respect of any breach of any provision of this Agreement shall in no way be
limited by the fact that the act, omission, occurrence or other state of
facts upon which any claim of any such breach is based may also be the
subject matter of any other provision of this Agreement (or of any other
agreement between the parties) as to which there is no breach.
Section 5.4 SEVERABILITY. If any provision of this Agreement or
the applicability of any such provision to a person or circumstances shall
be determined by any court of competent jurisdiction to be invalid or
unenforceable to any extent, the remainder of this Agreement or the
application of such provision to persons or circumstances other than those
for which it is so determined to be invalid and unenforceable, shall not be
affected thereby, and each provision of this Agreement shall be valid and
shall be enforced to the fullest extent permitted by law. To the extent
permitted by applicable law each party hereto hereby waives any provision
or provisions of law which would otherwise render any provision of this
Agreement invalid, illegal or unenforceable in any respect.
Section 5.5 COUNTERPARTS. This Agreement may be executed by the
parties hereto in separate counterparts and when so executed shall
constitute one Agreement, notwithstanding that all parties are not
signatories to the same counterpart.
Section 5.6 GOVERNING LAW. This Agreement shall be governed and
construed in accordance with the laws of the State of Delaware applicable
to agreements made and to be performed entirely within such state, without
giving effect to the conflict of laws principles of such state.
Section 5.7 SUCCESSORS AND ASSIGNS. Subject to Section 4, this
Agreement shall be binding upon and inure to the benefit of and be
enforceable by the successors and assigns of the parties hereto.
IN WITNESS WHEREOF, this Agreement has been executed as of the date
first above written.
Address: SUPERIOR ENERGY SERVICES, INC.
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▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ By: /S/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇
Attn: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇
Fax: ▇▇▇-▇▇▇-▇▇▇▇ President
Address: FIRST RESERVE FUND VII, LIMITED
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Attn: ▇▇▇ ▇. ▇▇▇▇▇ By: First Reserve GP VII, L.P., its
Fax: ▇▇▇-▇▇▇-▇▇▇▇ General Partner
Attn: ▇▇▇ ▇. ▇▇▇▇▇
By: First Reserve Corporation, its
General Partner
By: /S/ ▇▇▇ ▇. ▇▇▇▇▇
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President
FIRST RESERVE FUND VIII, LIMITED
PARTNERSHIP
By: First Reserve GP VIII, L.P., its
General Partner
By: First Reserve Corporation, its
General Partner
By: /S/ ▇▇▇ ▇. ▇▇▇▇▇
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President